Purabi Saikia Mahanta v. The State of Assam and 7 Ors

ORDER Date : 23.02.2024

Heard Mr. K.R.Patgiri, learned counsel for the petitioner. Also heard Mr.S.Biswas, learned counsel for the respondent no.8; Mr.A.Hassan, learned Page No.# 3/15 standing counsel, Accountant General and Ms.G.Bora, learned standing counsel, Agriculture department. 2] This writ petition is filed by the petitioner claiming for grant of family pension payable to her in view of services rendered by her late husband Nripen Mahanta, who was working as Deputy Director of Agriculture (FTS), Sukulibhoria, North-Lakhimpur. The husband of the petitioner expired on

13.12.2012 during his service period, leaving behind the petitioner and their one son and one daughter. The facts as pleaded in the writ petition reveals that the petitioner is the second wife of late Nripen Mahanta and out of their wed-lock one son and one daughter was born. The petitioner has supported her claim by placing reliance on the death certificate dated 27.12.2012 of her late husband as well as the next of kin certificate issued on 01.08.2014 (Annexure-2 of the writ petition) by the Office of the Deputy Commissioner, Lakhimpur, showing the respondent No.8 as wife along with two of her daughters and the petitioner as the second wife alongwith her daughter and son as the next of kin of late Nripen Mahanta. The petitioner has approached the authorities concerned on behalf of her unmarried daughter, whose name is reflected in the next of kin for her share of pensionary benefits. Inspite of the next of kin certificate clearly reflecting the names of all the kins of late Nripen Mahanta, the pensionary benefits were released to respondent No.8, the first wife and neither the Page No.# 4/15 department nor the respondent No.8 has apportioned the share payable to the unmarried dependent daughter born out of the marriage between the petitioner and her late husband. 3] Learned counsel for the petitioner submits that in spite of the representations being made before the respondent authorities, the share of pension has not been apportioned and the share of family pension has not been released to the petitioner till date. 4] Learned counsel for the petitioner submits that respondent No.5, the Accountant General (A&E), after scrutinizing the pension papers forwarded by respondent No.1, Commissioner and Secretary to the Government of Assam, Agriculture Department issued a letter dated 22.10.2020, whereby it was mentioned that in terms of the Note 1 below Rule 143(ii) of Assam Services (Pension) Rules, 1969, in case where there are two or more widows, pension will be payable to the eldest surviving widow, if any. Thereafter the petitioner has submitted a representation dated 26.09.2022 before the concerned authorities along with relevant documents to release the Death benefits and family pension to the kins of her late husband. However, as no action was taken by the concerned authorities the petitioner filed a RTI application before the respondent No.6 on 13.10.2022 seeking the present status of her deceased Page No.# 5/15 husband's pension matter. The respondent No.6 thereafter vide letter dated

02.11.2022 intimated that GPF amount of her deceased husband amounting to Rs.9,34,043/- (Rupees Nine lakh Thirty Four thousand Forty Three) only was sanctioned in favour of the respondent No.8, the first wife of late Nripen Mahanta. Since the death benefits of her late husband has been received by the respondent No.8, the petitioner and the respondent No.8 entered into a mutual agreement regarding the share of the death benefits left by their deceased husband. In terms of the said mutual agreement, the petitioner is entitled to receive a share of the death benefits of her late husband from the respondent No.8. However, the same had been denied inspite of the mutual agreement. The petitioner having left with no alternative has approached this Court. 5] Mr.S.Biswas, learned counsel representing the respondent No.8 submits that there is no dispute between the petitioner and the respondent No.8 or any of the respondents that the respondent No.8 is the first wife of late Nripen Mahanta and the same is clearly reflected in the next of kin certificate dated

01.08.2014. As per the provisions of law, it is the first wife who is entitled to receive the pensionary benefits. He further disputes the contention that the first wife refused to share the death benefits with the petitioner in so far as it relates to the share of the unmarried dependent daughter of the second wife. It is submitted that while the matter was under consideration by the administrative Page No.# 6/15 department, petitioner had approached this Court and this Court by order dated

02.01.2023 while issuing Notice directed that until further orders family pension be not paid to the respondent No.8 in respect of the deceased employee, Nripen Mahanta. It was ordered that upon appearance of respondent No.8 further consideration would be made as to what orders are necessary in the present writ petition. It is submitted that pursuant to the order dated 02.01.2023 no retiral benefits have been paid to the respondent No.8 and therefore there is no question of sharing any benefit with the present petitioner. He however, does not dispute that there was an agreement between the petitioner and the respondent No.8 for share of the retiral benefits. 6] Pursuant to the order passed by this Court stopping the pension to the respondent No.8, an Interlocutory Application being I.A.(Civil)/3582/2023 was filed seeking vacation or modification of the interim order. By order dated

07.02.2024 passed in the Interlocutory Application being I.A.(Civil)/3582/2023 it was directed by this Court that this Interlocutory Application should be treated to be the counter affidavit of the respondent No.8 in the main writ petition. Accordingly, the said Interlocutory Application is being treated as counter affidavit on behalf of respondent No.8. 7] Learned counsel for the parties have been heard and pleadings on the Page No.# 7/15 record have been carefully perused. 8] Upon hearing the learned counsel for the parties and upon careful perusal of the pleadings available on record it is seen that the issue in the present writ petition is for grant of a share of the family pension and other retiral benefits to the minor daughter of the petitioner, who is approximately 17 years and is unmarried. This claim is made as per the provisions of Rule 140 of the Assam Services (Pension) Rules, 1969. The law regarding the claim of family pension to the second wife is settled by judgment of a Full Bench of this Court rendered on

22.12.2022 in Mustt Junufa Bibi vs Mustt Padma Begum @ Padma Bibi & 4 Ors. reported in (2023) 5 GLR 824 (Writ Appeal No.160/2018). By the said Judgment it was held by the Full Bench of this Court that notwithstanding that the eldest of the surviving widow or the wife received the family pension however, the same would be held by the eldest of the surviving widow as a trustee for all such other persons who are otherwise entitled to the benefits of the family pension in terms of Rule 143 of the Pension Rules of 1969. Relevant paragraphs of the said judgment are extracted herein below:

¶22We further hold that the family pension being payable to the eldest of the surviving widow or wife would not mean that the entire family pension so payable would be the personal property of the eldest of the surviving widow or wife and the family pension so payable would be held by the eldest of the surviving widow or wife as a trustee for all such Page No.# 8/15 other persons who are entitled to the benefits of the family pension in terms of Rule 143 of the Pension Rules of 1969. 9] Further the amendments into the Rule 143 of the Assam Services (Pension) Rules, 1969 by the notification dated 09.08.2018 have been brought in to determine the grant of pension in respect of the claimants of family pension. 10] It is also seen that by notification dated 03.08.2017 Rules 143 of the Assam Services (Pension) Rules, 1969 was amended to include the claim of a pension for a disabled son or a daughter if the conditions mentioned in the said amendment are fulfilled. The relevant portion of the amended Rules is extracted below: GOVERNMENT OF ASSAM PENSION AND PUBLIG GRIEVANCES DEPARTMENT DISPUR :: GUWAHTI-G. ORDERS BY THE GOVERNOR NOTIFICATION Dated Dispur, the 9 August, 2618

No.PPG(G) 10/2013/49 : In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Assam is pleased to make the following rules, further to amend the Assam Services (Pension) Rules, 1969, hereinafter referred to as the principal Rules, in the manner hereinafter appearing, namely :- Page No.# 9/15 Short title & commencement 1.: 1) These rules may be called the Assam

Services

(Pension) Amended Rules, 2018 2) They shall come is force with immediate. Amendment of rule 143 2.In' the principal Rules, in Rule 143-

(a) in sub-rule (i), in clause (d), the words "unmarried minor daughters" shall be substituted by the words " unmarried dependent daughters."

(b) in sub-rule (i); in clause (c), for the punctuation mark "." appearing at the end, the punctuation mark "." shall be substituted and thereafter the following proviso shall be inserted, namely :-"Provided that family pension shall be allowed to continue beyond 2t years of age to an unmarried dependent daughter of a Government Servant/ Pensioner, subject to the fulfillment of Page No.# 10/15 the following conditions:-

(i). that there is no disabled child eligible for life time family pension;

(ii) that a certificate of non-marriage and non-employment in the prescribed format duly certified by the C.O/B.D.O. concerned (Annexure-III) shall be furnished by the unmarried dependent daughters to the Treasury or Bank once in a year."

(c) In sub-rule (ii), in clause (c), after Note 1 the following new ntoes shall be inserted, namely, - Note 2, Note 3, Note 4 and Note 5:- Note 2 : In cases where there are two or more family members (minor son/unmarried dependent daughters) present at time of death of the widow/widower, the family pension as admissible shall be divided to all of them in equal shares till their eligibility ceases as per sub-rule (ii) (b) or (c) of rule 143 (as amended). If all members are minors, the family pension shall be paid through legal/natural guardian, otherwise family pension shall be paid in the Page No.# 11/15 following manner –

(a) the family pension shall be paid to the eldest eligible member of the family who shall divide it equally among other eligible members;

(b) if the eldest eligible member becomes ineligible to receive the family pension, it shall be paid to the next eligible member of the family who shall divide it equally among other eligible members and so on.

(c) in every case, the family pension recipient has to sign and submit an indemnity bond to the competent authority so that the recipient divides the amount amongst the beneficiaries in equal share. Note 3.: If at the time of submission of family pension claim, there are no minor children in the family, the family pension shall be paid from the date of filing application by the claimant or from the date of coming into force of this notification whichever is later. No claim for arrear benefit under this clause shall be entertained. Otherwise, the family pension shall be paid from the date following the date of death of the widow/widower as the case may be. Note 4 : In cases where family pension is already being drawing on Page No.# 12/15 the date of publication of this notification, it shall be allowed to continue by the current recipient till his/her eligibility ceases as per normal rules and thereafter the family pension shall be paid as per the procedure mentioned above at Note 2 under Rule 143(ii)(c). Note 5 : The eligibility of dependent father, mother, brother (up to 18 years) and unmarried sister (up to 21 years) for family pension under the notification No. PPG(G) 10/2013/38 dated 20/08/2015 issued by this department is applicable only if there is no unmarried dependent daughters or disabled child eligible for life time family pension present in the family of the deceased Government Servant. The above mentioned notification is also applicable in cases where the Government Servant dies unmarried." The provisions of this notification shall cover all cases of family pension irrespective of the date of death of the Government Servant/Pensioner." 11] A careful perusal of the amendment shows that as per Note-2 "where there are two or more family members (minor son/unmarried dependent daughters) present at the time of the death of the widow/widower. As per Note2 the family pension shall be paid to the eldest eligible member of the family who Page No.# 13/15 shall divide it equally among other eligible members. Under the said Rules there is also a provision for execution of an indemnity bond by the recipient of the pension in favour of the competent authority to the effect that the recipient will divide the amount of pensionany benefits among the beneficiaries in equal status. Note 5 of the Assam Services (Pension) Rules, 2018 provides that the eligibility of dependent father, mother, brother(up to 18 years) and unmarried sister (up to 21 years) for family pension under the Notification No.PPG(G)/10/2013/38 dated 20.08.2015 issued by the department is applicable only if there is no unmarried dependent daughters or disabled child eligible for life time family pension present in the family of the deceased husband and this notification is also applicable in cases where the Government Servant died as unmarried. 12] The question with regard to the entitlement of pension of the second wife, is also settled by the Apex Court. The Apex Court in Rameshwari Devi vs. State of Bihar reported in (2000) 2 SCC 431 has laid down the law that while second wives are not entitled to pension, children born out of second marriage are also entitled to pension subject to fulfillment of the prescription under the Rules. In view of the law laid down by the Apex Court in Rameshwari Devi (supra), children borne out of the wedlock of second wife cannot be denied their share of pension. As such, the relevant paragraph of the said judgment is Page No.# 14/15 extracted below:-

¶14It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this Act, children of void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolve firstly on heirs in clause (1) which include widow and son. Among the widow and son, they all get shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described a widow of Narain Lal, her marriage with Narain Lal being void. Sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal. That is, however, legal position when Hindu male dies intestate. Here, however, we are concerned with the family pension and death-cum-retirement Gratuity payments which is governed by the relevant rules. It is not disputed before us that if the legal position as aforesaid is correct, there is no error with the directions issued by the learned single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment. 13] Upon due perusal of the judgment referred by the Full Court rendered in Mustt Junufa Bibi (supra) and by the Apex Court in Rameshwari Devi (supra) read with the amendments brought to in Rules 143, this Court is of the view that the matter requires a decision by the authorities concerned as to the claims made by the present petitioner vis-à-vis the claims of respondent No.8. The authorities will decide the claims of the petitioner and if the claims of the Page No.# 15/15 petitioner are found to be genuine upon necessary verification then the same can be released in respect of her dependent unmarried daughter as per the law laid down by the Full Court judgment passed in Mustt Junufa Bibi (supra) and by the Apex Court in Rameshwari Devi (supra) by following the procedure laid down under Rule 143 of Assam Pension Rules, 1969 (as amended up to date). Any particulars that may be found necessary by the authorities concerned while deciding the claims of the petitioner, the same may be called for from the petitioner who will accordingly furnish the same to the concerned authorities. The matter shall be decided as expeditiously as possible preferably within a period of 30 (thirty) days from the date of receipt of a certified copy of this order. 14] Interim order passed earlier will continue till the matter is decided by the authority concerned. 15] Writ petition stands disposed of in terms of the above. JUDGE Comparing Assistant

PageoNo.#o1/15 GAHC010272112023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.oWP(C)/8414/2022oo PURABIoSAIKIAoMAHANTA W/O-oLATEoNRIPENoMAHANTA o R/O-oWARDoNO.o07 oNORTHoLAKHIMPURoTOWN o POoANDoPS-oNORTHoLAKHIMPUR o DISTRICT-oLAKHIMPUR oASSAM o PIN-o787001. oVERSUS THEoSTATEoOFoASSAMoANDo7oORS REPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.o OFoASSAM o AGRICULTUREoDEPARTMENT o DISPUR oGUWAHATI-6. 2:THEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.oOFoASSAM oPENSIONoANDoPUBLICoGRIEVANCESoDEPARTMENT DISPUR oGUWAHATI-o6. o3:THEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.oOFoASSAM oFINANCEoDEPARTMENT DISPUR oGUWAHATI-06. o4:THEoDIRECTORoOFoAGRICULTURE Page No.# 2/15 ASSAM KHANAPARA GUWAHATI- 22. 5:THE ACCOUNTANT GENERAL ( A AND E) ASSAM MAIDAMGAON BELTOLA GUWAHATI- 29. 6:THE DEPUTY DIRECTOR OF AGRICULTURE (FTS) SUKULIBHORIA NORTH- LAKHIMPUR ASSAM PIN- 787001. 7:THE TREASURY OFFICER LAKHIMPUR TREASURY DIST.- LAKHIMPUR ASSAM PIN- 787001. 8:SMTI. BULUMAI MAHANTA 1ST WIFE OF LATE NRIPEN MAHANTA R/O- VILL. AND P.O.- KHALIHAMARI BARGHAT DISTRICT- SONITPUR ASSAM. PIN- 784026. ------------ Advocate for : MR. K R PATGIRI Advocate for : SC AGRI. DEPARTMENT appearing for THE STATE OF ASSAM AND 7 ORS BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA