Ratna Begum Barbhuiya v. The State of Assam and 5 Ors

PageoNo.#o1/4 GAHC010035942023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/1146/2023o RATNAoBEGUMoBARBHUIYAo W/O-LT.oSIRAJUDDINoBARBHUIYA,oR/O-oVILL-oBOWERGHAToPART-I,oP.O.o BOWERGHAToPART-I,oDIST.-oHAILAKANDI,oASSAM,oPIN-o788164 VERSUSo THEoSTATEoOFoASSAMoANDo5oORS.o REP.oBYoTHEoCOMM.oANDoSECY.oTOoTHEoGOVT.oOFoASSAM,oANIMALo HUSBANDRYoANDoVETERINARYoDEPTT.,oDISPUR,oGUWAHATI,oASSAM,o PIN-o781006 2:THEoJOINToSECRETARY oTOoTHEoGOVT.oOFoASSAM oANIMALoHUSBANDRYoANDoVETERINARYoDEPTT. oDISPUR oGUWAHATI oASSAM oPIN-o781006 3:THEoSENIORoACCOUNToOFFICER oOFFICEoOFoTHEoPRINCIPALoACCOUNTANToGENERALo(AoANDoE)oASSAM oMAIDAMGAON oBELTOLA oGUWAHATI-o781029 4:THEoUNDERoSECRETARYoTOoTHEoGOVT.oOFoASSAM oPENSIONoANDoPUBLICoGRIEVANCESoDEPTT. oDISPUR oGUWAHATI oASSAM oPIN-o781006 Page No.# 2/4 5:THE DEVELOPMENT OFFICER (PIG SHEEP AND GOAT) GOVT. OF ASSAM ANIMAL HUSBANDRY AND VETERINARY DEPTT. CHANDMARI GUWAHATI ASSAM PIN-781003 6:PURNIMA RAHMAN BARBHUIYA W/O-LT. SIRAJUDDIN BARBHUIYA R/O-VILL-BOWERGHAT PART-I P.O. BOWERGHAT PART-I DIST.- HAILAKANDI ASSAM PIN-78816 Advocate for the Petitioner : MD I H LASKAR Advocate for the Respondent : GA, ASSAM

BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH

10.03.2023

Heard Mr. I. H. Laskar, the learned counsel for the petitioner and Ms. M. M. Kotoky, the learned counsel appearing on behalf of the respondent Nos.1, 2 & 5. Also heard Ms. J. Das, the learned counsel appearing on behalf of the respondent No.3 as well as Ms. S. Baruah, the learned counsel for the respondent No.4. The case of the petitioner herein is that the petitioner is the second wife of Late Sirajuddin Barbhuiya. It is the case of the petitioner that the respondent No.6 is the first wife of Late Sirajuddin Barbhuiya and she has been receiving the family pension. However, the respondent No.6 has not Page No.# 3/4 maintained her for which the petitioner has approached this Court under Article 226 of the Constitution. The learned counsel for the petitioner, however, has submitted that in view of the judgment of the Full Bench in the case of Mustt. Junufa Bibi vs. Mustt. Padma Begum @ Padma Bibi and Others, reported in 2022 SCCOnLine Gau 2000, the petitioner cannot maintain the present writ petition for which the petitioner has to approach the appropriate forum under law. This Court has duly taken note of paragraph No.23 of the said judgment of the Full Bench in the case of Mustt. Junufa Bibi (supra) which is reproduced herein below:- "23. We also provide that in the event any such other persons who are entitled to the benefits of the family pension in terms of Rule 143 of the Pension Rules of 1969, including the second or further wives, in a case where the parties are governed by the Mohammedan Law, 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. But however, if in a given case the State authorities on their own volition are of the view that under an acceptable circumstance the authorities are agreeable or required to pay the pension separately to any such member of a family of a deceased employee, this judgment may not be construed to be an absolute bar on such separate payment." Taking into account the submission to the effect that the instant petition is not maintainable in view of the fact that the direction which is Page No.# 4/4 being sought for is per se a direction against the private respondent, this Court permits the petitioner to withdraw the instant writ petition. However liberty is given to the petitioner to approach the appropriate forum under law for claiming maintenance in terms with paragraph No.23 of the judgment in the case of Mustt. Junufa Bibi (supra). The petitioner is also given the liberty to approach the State respondents to take into account that the petitioner has a claim for entitlement of a part of the family pension being the second wife and it shall be within the discretion of the State respondents to consider the said claim in accordance with law. In view of the above, the instant writ petition stands dismissed on withdrawal subject to the observations made herein above.

JUDGE Comparing Assistant