Ajufa Bibi v. The State of Assam and 9 Ors

ORDER Date : 13.03.2023 Mr. A. A. R. Karim, learned counsel for the petitioner. Also heard Mr. S. R. Baruah, learned counsel for the respondent Nos. 1 & 3; Mr. R. Borpujari, learned counsel for the Finance Department, Mr. B. Talukdar, learned counsel for the Elementary Education Department and Mr. A. T. Sarkar, learned counsel for the respondent No. 10.

¶2The petitioner herein is admittedly the second wife of one-Md. Motiur Rahman Sheikh @ Motiur Rahman (since deceased) and the respondent No.10 is the first wife of late Md. Motiur Rahman Sheikh. Late Md. Motiur Rahman Sheikh was working as the Arabic Teacher at Bhomrabil L.E. Madrassa since 18.01.1986 and on 21.02.2019 he unfortunately expired. Admittedly as on today, neither the petitioner nor the respondent No. 10 have applied for family pension but it is the case of the petitioner that the petitioner being the second wife would not be granted the family pension for which the petitioner has approached this Court seeking equal distribution.

¶3I have heard the learned counsels for the parties.

¶4In a recent Judgment of the Full Bench in the case of Mustt Junufa Bibi – Vs-Mustt Padma Begum and Ors. reported in 2022 SCC OnLine Gau 2000, the Full Bench had categorically held that it is the first wife who is entitled for family pension but the first wife receives the family pension as a trustee of those persons who are entitled to the family pension. In paragraph-23 of the said Judgment, the full Bench have categorically held that where the parties are Page No.# 4/4 governed by the Mohammedan Law and are not appropriately maintained by the eldest of the surviving widow or wife to whom the pension would be paid, the remedy thereof would be to make a claim for maintenance in the appropriate forum under the law and not a claim for a payment of the family pension by the State authorities directly to such persons. In view of the said observations, the instant writ petition is, therefore, not maintainable inasmuch as the writ which has been sought for is against the respondent No. 10 who is private person.

¶5Under such circumstances, this Court has no other option but to dismiss the instant writ petition. It is, however, made clear that the dismissal of the instant writ petition shall not preclude the petitioner to approach the appropriate forum claiming maintenance or part of the family pension from the respondent No. 10, if the authorities disburses the family pension to the respondent No. 10.

¶6This Court further observes that the petitioner would also be at liberty to approach the State Authorities who on their own volition and taking into account the facts and circumstances would be at liberty to pay the pension separately to such members of the family of the deceased employee as deemed fit.

¶7With the above observation, the instant petition stands disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010021022020 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/829/2020o AJUFAoBIBIo W/O-oLATEoMOTIURoRAHMANoSHEIKHo@oMOTIURoRAHMAN,oR/O-oVILL-o BHOMRABILoNO.2,oP.O-oGOLADANGI,oP.S-oGOSSAIGAON,oDIST-o KOKRAJHAR,oBTAD,oASSAM VERSUSo THEoSTATEoOFoASSAMoANDo9oORSo REP.oBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVToOFoASSAM,o PENSIONoANDoPUBLICoGRIEVANCESoDEPTT,oDISPUR,oGUWAHATI-o781006 2:THEoCOMMISSIONERoANDoSECRETARY oTOoTHEoGOVToOFoASSAM oFINANCEo(ESTT-A)oDEPTT oDISPUR oGUWAHATI oPIN-o781006 3:THEoDIRECTORoOFoPENSION oHOUSEFEDoCOMPLEX oBELTOLA oGUWAHATI oPIN-o781007 4:THEoDIRECTORoOFoELEMENTARYoEDUCATION oASSAM oKAHILIPARA oGUWAHATI oPIN-o781019 5:THEoBODOLANDoTERRITORIALoCOUNCIL oREP.oBYoTHEoSECRETARY oEDUCATIONoDEPTT Page No.# 2/4 BTC KOKRAJHAR ASSAM PIN- 783370 6:THE DIRECTOR OF EDUCATION BTC KOKRAJHAR ASSAM PIN- 783370 7:THE DEEO KOKRAJHAR BTAD ASSAM PIN- 783370 8:THE DEPUTY INSPECTOR OF SCHOOLS GOSSAIGAON P.O AND P.S- GOSSAIGAON DIST- KOKRAJHAR BTAD ASSAM PIN- 783360 9:THE BEEO KACHUGAON EDUCATION BLOCK P.O AND P.S- KACHUGAON DIST- KOKRAJHAR BTAD ASSAM PIN- 783360 10:SHAJIDA BIBI W/O- MATIUR RAHMAN SHEIKH R/O- VILL- BHOMRABIL NO. 2 P.O- GOLADANGI P.S- GOSSAIGAON DIST- KOKRAJHAR BTAD ASSAM PIN- 78336 Advocate for the Petitioner : MR. A A R KARIM Advocate for the Respondent : SC, PENSION Page No.# 3/4 BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH