The main legal point established in the judgment is the ineligibility of the second wife for family pension under the Hindu Marriage Act and the U.P. Government Servant Conduct Rules, based on the definitions of 'family' and 'wife' and the implications of nomination in the service records.

Irshad Ali, J.

1. Heard learned counsel for the petitioner Sri Dinesh Kumar Singh, Advocate and the learned Addl. Chief Standing Counsel on behalf of the respondent nos. 1 to 5 and Sri Prakash Chandra Barnwal, Advocate for the respondent no. 6.

2. Factual matrix of the case is that the petitioner claimed that she is wife of late Sant Ram Verma. According to the petitioner her marriage was solemnized with Hindu rites and rituals in the year 1956 before he joined the Government service in the Department of Medical and Health, U.P. as Assistant at Meerut. The petitioner never resided with her husband during the period he was in government service and used to reside at her maternal house at district Ambedkar Nagar to look after responsibility of her in-laws and other responsibility of her maternal house.

3. Late Sant Ram Verma retired from the post of Health Supervisor on 31.01.1999 on attending the age of superannuation and subsequently he died on 21.11.2011. Thereafter the petitioner applied for the family pension and submitted papers before the respondents to pay family pension in accordance with law and upon a enquiry Senior Treasury Officer, Ambedkar Nagar submitted a report dated 15.02.2012, wherein it has been recorded that the petitioner is the first wife of late Sant Ram Verma. Thereafter, the authorities intimated to the petitioner that respondent no. 6 Smt. Rajkumari Bhatnagar has been nominated in the pension papers of late Santram Verma. Therefore, the family pension cannot be paid to the petitioner. Late Santram Verma during the posting at Ghaziabad on the post of Health Supervisor (Male) had the relationship with the respondent no. 6. As per the case of the petitioner, late Sant Ram Verma had never marriage with respondent no. 6.

4. Learned counsel for the petitioner submitted that in view of the provisions of Hindu Marriage Act, 1955 and in view of the provisions of U.P. Government Servant Conduct Rules, 1956, late Santram Verma cannot solemnize marriage with respondent no. 6 during the life of the petitioner. He further submitted that during the life time of the marriage of the petitioner, the marriage if any with respondent no. 6 is null and void in view of Section 5 read with section 11 of the Hindu Marriage Act, 1955. He next submitted that Part-III of Rules, 1961 deals with the family pension. Sub-rule 4 of rule 7 of 1961 provides that to be nomination under sub-rule 5, pension sanctioned under this form shall be granted to the surviving widow, if the deceased was male officer or was husband. He relied upon the explanation; oldest surviving widow defines under Clause (a)(i) of the aforesaid rule should be constitute with reference to the seniority according to the date of marriage with the officer and not with reference to the age of surviving widow.

5. Last submission of the learned counsel for the petitioner is that sub-rule 5 of rule 7 of 1961 Rules requires the Government servant to make a nomination indicating the order in which pension sanctioned would be payable to the members of his family. The pension will be payable in accordance with the such nomination provided that nominee concerned is not ineligible on the date on which pension may be become payable to him. Sub-rule 3(e) of Rule 7 of 1961 Rules provides that pension is not payable to a person who is not a member of the deceased/officer's family. Rule 3(3) of 1961 Rules defines family, which includes the wife in case of male officer and husband in case of female officer. The word wife defines in the above section means a legally wedded wife and does not include second wife as long as the first wife survives.

6. Vide Government Order dated 28.04.1986 new family pension scheme 1965, brought in existence with the approval of the Governor, automatically made applicable on the employees appointed in the Government service on or before 01.04.1965, which provides that in the event of deceased employee having two wife's then pension shall be payable t