A wife whose marriage is void under the provisions of Section 11 of the Hindu Marriage Act, 1955, is not entitled to family pension under the provisions of the West Bengal Recognised Non-Government Educational Institutions Employees (Death-cum-Retirement) Benefit-Scheme, 1981.

1. THE petitioner in this Article 226 petition dated May 17, 2006 is aggrieved by the decision of the District Inspector of Schools (PE), Malda dated March 13, 2006 (at p.50).

2. FACTS of the case revealed by the pleadings and the documents produced with them are these. The petitioner's husband, Gour Chandra Chowdhury, was a primary school teacher. He retired from service on February 28, 1985. On February 25, 1987 his first wife, Anita, died at the age of 42. Under a pension payment order dated August 27, 1987 he was granted pension as from March 1, 1985. He died on April 21, 1997. Claiming to be his second wife married to him before enactment of the Hindu Marriage Act, 1955 the petitioner applied for family pension. By the impugned decision the claim has been turned down.

The District Inspector of Schools (in short DIS) held that the petitioner failed to give any evidence in proof of her claim that she was married to Gour before enactment of the Hindu Marriage Act, 1955. In the process the DIS referred to an Order No.9388-F dated August 4, 1983 to support his opinion that wife of a Hindu subject to the provisions of the Hindu Marriage Act, 1955 marrying at a time he has a spouse living is not entitled to family pension.

3. THE thing No.9388-F dated August 4, 1983 does not seem to be an Order of the Government. From the thing produced by Mr. Chakraborty, counsel for the State, it is evident that under the number one S.K. Chakrabarti, Deputy Secretary to the Government of West Bengal, Finance Department, Audit Branch, wrote a reply letter dated August 4, 1983 to the Accountant-General, West Bengal, Treasury Buildings, Kolkata-1 regarding "Admissibility of Family Pension to 2nd wife whose marriage took place after the Hindu Marriage Act, 1956 came into force." Contents of the letter No.9388F dated August 4, 1983 are quoted below:

"I am directed to refer to your letter No.Pen/Co-ordn./IV/Vol.III/347 dt. 10.11.82 on the subject mentioned above and to say that this should be substituted by 'THE matter has been duly considered and the Govt. are advised" that the second wife of a Hindu Govt. Servant, whose marriage was solemnized after the corning into operation of the Hindu Marriage Act, 1955 and during the life-time of the first wife, is not entitled to get any family pension, as per Note to rule 104 of W.B.S.(DCRB) Rules, 1971, as her alleged marriage was not a marriage at all, in the eye of law."

4. RULE 104 of the West Bengal Services (Death-cum-Retirement Benefit) RULEs, 1971 mentions the period during which pension is admissible under the rules, and Note (i)(a) to the rule provides as follows:

"Note.-(i)(a) Where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares."

Other than this, there is nothing in the Note to RULE 104 of the rules concerning right of family pension of a person marrying a Hindu after enactment of the Hindu Marriage Act, 1955 at a time the Hindu has a spouse living.

In this case the DIS was examining whether as Gour's second wife the petitioner was entitled to family pension under the West Bengal Recognised Non-Government Educational Institutions Employees (Death-cum- Retirement) Benefit-Scheme, 1981. Paragraph 45 of this Scheme provides as follows:

"45. In respect of matters for which provision has not been made in this Scheme, the relevant provisions in the West Bengal Services (Death-cum- Retirement Benefit) Rules, 1971 (amended from time to time) shall apply mutatis mutandis subject the approval of the State Government."

Hence it cannot be said that the provisions of Rule 104 of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 and what was stated in the letter No. 9388-F dated August 4, 1983 would, of course, apply to the petitioner's case.

5. THE provisions of Rule 104 and the things stated in the letter dated 9388-F dated August 4, 1983, if they have at all the effect of a Government Order, would have been applic