The second wife is entitled to family pensionary benefits if the first wife consents, as personal law permits such marriages, and denying benefits constitutes gender discrimination.

ORDER

(Per: Mr. Rajinder Singh Dogra, Judicial Member)

1. SWP 1273/2018 has been filed by the petitioners in the Hon’ble High Court and after the reorganization of State of Jammu and Kashmir into Union Territory of Jammu & Kashmir and Ladakh and in view of the Notification No. G.S.R. 267 (E) dated 29.04.2020 read with notification No. G.S.R. 317 (E) dated 28.05.2020 issued by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), the jurisdiction to adjudicate upon the list regarding service disputes of the employees of UT of J&K and Ladakh was conferred upon this Tribunal and while considering the said fact, the record of SWP 1273/2018 was ordered to be transferred by the Hon'ble High Court of J&K to this Tribunal and renumbered as Transferred Application No. TA 2398/2020.

2. The brief of the case in nutshell as per facts mentioned in TA that petitioner being the second wife of late Mohd, Ikhlaq, is being denied family pension despite no-objection and consent having been given by the first wife-respondent No. 6 for such grant of family pension in favour of the petitioner and despite such second marriage being legal and valid as having the sanction of personal law. The only ground based on which respondent No. 5 has refused to sanction family pension in favour of the petitioner is that the late husband of the petitioner did not obtain the requisite permission in terms of Rule 21 of the J&K Civil Services (Conduct) Rules, 1971 for contracting second marriage and on the ground that in absence of such permission family pension under Rule 22 (a) of the J&K Family Pension-cum-Gratuity Rules, 1964 could not be granted to the petitioner.

3. Feeling aggrieved, the applicants had approached Hon’ble High Court seeking following reliefs.

i. Writ, order or direction in the nature of Mandamus commanding the respondents to grant all family pensionary benefits in favour of the petitioner, being the legally wedded wife of late Mohd. Ikhlaq in view of no-objection for such grant having been conveyed to the respondents by the respondent No. 6;

ii. Writ, order or direction in the nature of Certiorari, quashing the communication No. 3/S-4/2017-18/66176/717-719 dated 07.03.2018 in so far as it operates to deny family pension to the petitioner by fixing a pre-condition of production of permission for contracting second marriage for granting family pension to the petitioner;

iii. Writ, order or direction in the nature of Mandamus, declaring the proviso to Note-2 appended to Rule 22(a) of J&K Family Pension- cum-Gratuity Rules, 1964 as ultra vires the Constitution;

iv. The Hon'ble Court may, further, be pleased to read down the aforesaid proviso to Note-2 appended to Rule 22(a) of J&K Family Pension-cum-Gratuity Rules, 1964 as not operating as a bar to grant of family pension to Junior Widow in cases where the Senior Widow has conveyed her no objection to grant of the same in favour of Junior Widow.

v. Any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, may also be granted in favour of the petitioners and against the respondents along with cost of the petition.

4. The facts leading to filing of the aforesaid Transferred Application are summarized as under: -

 That the husband of the petitioner, Late Mohd. Ikhlaq was an employee of the School Education Department and was serving as a General Line Teacher in Government Middle School Bandi Chechian when he died in harness on 06.11.2017. The late husband of the petitioner had rendered a total qualifying service of 31 years 08 months and 25 days of service as on the date of his death.

 That after the death of late Mohd. Ikhlaq, the petitioner applied for grant of family pension in her favour where after her case for sanctioning of family pensionary benefits was forwarded by the respondent No. 4 to the respondent No. 5 vide communication No. ZEON/1418 dated 23.01.2018.

 That petitioner is the secon