ORAL JUDGMENT

Date : 20-03-2025 Heard the parties.

2. The petitioner is admittedly second wife of the erstwhile employee late Kalam Khan, who died in harness on 29.08.2018 while working as Peon in the office of the Executive Engineer, Irrigation Division, Araria. On being aggrieved by the inaction of the respondents in not according the proportionate retiral benefits/family pension, she approached this Court by invoking the prerogative writ jurisdiction under Article 226 of the Constitution of India seeking a direction upon the respondents to pay the admissible proportionate retiral benefits and the family pension.

3. Mr. Syed Masleh Uddin Ashraf, learned Senior Advocate for the petitioner contended that there is no dispute that the petitioner is the second wife of the erstwhile employee, but as per the Muslim Law and in view of the notification issued by the Government of Bihar dated 27.06.2011, the petitioner is entitled to get the proportionate retiral benefits/family pension. On the strength of the aforesaid notification, the petitioner approached before the Executive Engineer, Irrigation Division, Araria raising her claim for proportionate retiral benefits/family pension. In response to the claim of the petitioner, the Executive Engineer, Irrigation Division, Araria sought an opinion from the Government Pleader, Araria, who in his legal opinion informed the Executive Engineer that all the three wives of late Kalam Khan are entitled to receive post retiral dues/family pension proportionately. Having obtained the legal opinion, the Executive Engineer informed the petitioner as well as respondent nos. 5 and 6 to submit their consent letter in terms of the legal opinion and accordingly, the petitioner submitted her representation along with her consent letter. However, the same has not been done; thus the present writ petition.

4. Heavy reliance has been placed on a decision rendered by this Court in the case of Tartila Khatoon vs. The State of Bihar & Ors. [CWJC No. 16707 of 2022]. Having taken this Court through the decision of this Court, learned Senior Advocate further contended that this Court reiterating the decision in the case of Bina Ansari vs. The State of Bihar & Ors [2017(2) PLJR 920 and further in Mosmat Usha Kuar vs. The State of Bihar & Ors. [1998(1) PLJR 560] has observed that since the community’s personal law permits second marriage, therefore, family pension is required to be divided equally between the two wives. The case of Tartila Khatoon (supra) was disposed of on 21.12.2023 with a direction to the District Education Officer, Sheohar to consider the claim of the petitioner for family pension, if otherwise found fit, in the light of the observations made therein. The petitioner seeks similar treatment as has been done in the case of Tartila Khatoon (supra).

5. Counter affidavit as well as the supplementary counter affidavit have been filed on behalf of respondent no.2. Referring to the averments made therein, learned Advocate for the State urged before this Court that after the demise of Md.

Kalam Khan, his first wife (respondent no.5) submitted application before the Executive Engineer, Irrigation Division, Araria for payment of death-cum-retiral benefits. The second wife, who is petitioner herein, also submitted application for payment of death-cum-retiral benefits of her husband and it was also informed that third wife of Md. Kalam Khan was also alive. In the aforesaid premise, the claim of the petitioner was considered in the light of the Finance Department Resolution No. 1549 dated 27.06.2011 specifically providing therein that in case second marriage is solemnized by an employee with prior permission of the Government under Rule 23(2) of the Bihar Government Servants Conduct Rules, 1976, in such cases where there are more than one widow, the amount of family pension shall be payable to all such widows in equal proportion.

6. Learned Advocate for the State, thus contended that the deceased employee Md.