The main legal point established in the judgment is the entitlement of legal heirs, particularly those belonging to Scheduled Tribe communities, to pension/retiral dues under the C.C.S. (Pension) Rules, 1972, and the interpretation of the Hindu Marriage Act, 1955 in such cases.

Sujoy Paul, J.

1. The core issue needs determination in this case is whether the petitioner No. 1, second wife of Late Hulkar Singh Maravi and other petitioners, children of that employee are entitled for pension/retiral dues?

2. The petitioners have invoked the jurisdiction of this Court under Article 226 of the Constitution of India with a prayer to direct the respondents to release the financial benefits in their favour relating to retiral dues of Late Hulkar Singh Maravi (hereinafter called as deceased-employee). The petitioners have stated that they are the legal heirs of the deceased-employee. They belong to Gond, a Scheduled Tribe community. The caste certificate of the deceased-employee is filed as Annexure P/1. It is stated that the deceased was working as Head Constable with the respondent-department. The deceased solemnized first marriage with one Nan Bai as per customs and rituals prevailing in the Gond community. The deceased-employee lived with Nan Bai for a limited period of time. Thereafter, he married the petitioner in the year 1988 as per the Gond customs and rituals. The petitioner No. 1 and Hulkar Singh lived together till death of Hulkar Singh in the year 2014. Out of said wedlock between petitioner No. 1 and Hulkar Singh, the remaining petitioners were born. The Ration Card is filed to establish this fact.

3. The petitioners have also filed the Medical Card issued to the deceased-employee to establish that they were part of the same family. The copy of passbook showing joint account is also filed as Annexure P/4. It is further submitted that the last rituals of Hulkar Singh were performed by petitioner No. 2 being the eldest son.

4. Shri Rahul Diwakar, learned counsel for the petitioner submits that the nomination filed by the respondents alongwith their return clearly shows that the deceased-employee mentioned the name of present petitioners as their nominees. Hence the petitioners are entitled for their share of retiral dues. Shri Diwakar also relied on Central Industrial Security Force Rules, 2001 to bolster his submission that as per these rules, if second marriage is permissible under the customs, the employee is not disqualified to be appointed. Thus the rules do recognise the existence of customary right of second marriage. Lastly, it is urged that even if second marriage is held to be illegal or void, the children cannot be deprived from their legitimate claim of retiral dues.

5. Shri Mohan Sausarkar, learned counsel for the respondent-department and Shri U.S. Jaiswal, learned counsel for the respondent No. 4 opposed the relief. Shri Sausarkar urged that the deceased-employee was working as a constable. It is stated in the return that Hulkar Singh initially married the respondent No. 4 in the year 1983 i.e. prior to appointment in the respondent-department. The respondent No. 4 has a married daughter who is living separately. It is admitted by the department that Hulkar Singh again married the petitioner No. 1 in the year 1988 and the remaining petitioners are the children of petitioner No. 1. In the return it is stated that first nomination was submitted in the name of respondent No. 4 at the time of initial appointment. However, the second nomination was submitted in the name of petitioner No. 1 on 27.08.2001 (Annexure R-1/2). The stand of the department is that an enquiry relating to said two nominations was conducted. It was found that both the wives are staying together and respondent No. 4 is voluntarily given her consent by submitting an affidavit for making payment of pension and other benefits to petitioner No. 1. These documents are filed along with the return.

6. Shri Sausarkar argued that as per clarification issued by the department of pension and pensioners welfare dated 16.02.1987 published under Rule 54 of C.C.S. (Pension) Rules, 1972, the second marriage during the lifetime of first wife will be considered as a nullity and has no legal effect. The second wife will not be entitled