B.D. Agarwal, J.

1. A short but an important question of law involved in this Writ Appeal, is as to whether the second wife of a Mohammedan employee is entitled to any share in the family pension of her late husband. Having answered the issue in the negative by the learned Single Judge, the writ petitioner has challenged the judgment and order dated 23.03.2010, passed in W.P(C) No. 2450 of 2007.

2. We have heard the argument of Shri A.M. Mazumdar, learned senior counsel for the appellant/writ petitioner. The State of Assam (respondents No.1, 5 and 6) were represented by Sri B. Gogoi, Advocate; Agriculture Department (Respondents No.2 and 4) were represented by Sri C. Baruah, learned standing counsel-respondent No.7 i.e. the Branch Manager (sic) United Bank of India as well as the first wife of the deceased, Smti. Anwara Begum (Respondent No.8) did not turn up, despite being notified.

3. The facts in a narrow compass are that the appellant had married late Asoddar Ali Tapadar in the year 1971, during the subsistence of his marriage with the respondent No.8. As per pleadings in the writ petition, the deceased had eight children through the first wife and three children through the 2nd wife. Due to some matrimonial discord, the appellant had started living separately from her husband since 1985 and had also filed a case, being MR No. 20/85, seeking maintenance allowance from her husband. The said case culminated in compromise and her husband agreed to pay a sum of Rs. 1500/- per month towards her own maintenance as well as their children. It was also pleaded in the writ petition that after retirement from service, the deceased submitted an application before the concerned department on 22.09.2005, requesting inclusion of the name of the appellant as a nominee to receive 50% pensionary benefits after his death. It may also be mentioned here that the appellant/respondent retired from service on 3-1.12.2003 and died on 01.10.2006. Thereafter, both the appellant and the respondent No.8 had staked their claim for retiral benefits, and having learnt that the concerned department is likely to sanction the payment of pension in favour of the first wife (Respondent No.8), she filed the writ petition, which came to be dismissed by the impugned judgment.

4. Agriculture Department submitted its affidavit-in-opposition in the writ petition, pleading that the pension papers were processed in the year 2003 and till then the name of the respondent No.8 was not reflected in the service record and being the wife and nominee of the employee. However, the fact of submission of an application by the deceased employee on 22.09.2005 to that effect has not been disputed by the aforesaid respondent.

5. During the course of hearing of the appeal, learned standing counsel for Agriculture Department has reiterated the aforesaid facts. At the same time, the writ petitioner had also annexed a copy of the application of the deceased employee, submitted to the Director of Agriculture (Respondent No.2) on 22.9.2005, and the authenticity of this document has also not been disputed in the affidavit submitted by the Respondent No.2.

6. Sri Baruah, learned standing counsel for the Accountant General also submitted that his office has taken initiative to finalise the pension in the name of Respondent No.8, as the name of the writ petitioner did not find place in the service dossier. The learned standing counsel has also contended that it is difficult to ascertain on the part of the Accountant General as to whether the appellant/petitioner is a legally married wife of the deceased employee. In our considered opinion, since the Respondent No.8 herself did not challenge the marriage of the appellant with the deceased, the office of the Accountant General cannot suo moto go into this aspect. His office, at best, can examine the claim of the pension, on the basis of the service record as well as the relevant Pension Rules. At the same time, the deceased was an employee