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IN THE HIGH COURT OF GAUHATI
MICHAEL ZOTHANKHUMA, J.
Padma Begum - Petitioner
Versus
State of Assam and Ors. - Respondents
WP(C) No. 2182 of 2016
Decided On : 26-07-2017
Constitution of India, 1950 - Articles 25, 14, 15, 21 and 26 - Criminal Procedure Code, 1973 - Section 125 - Family Pension and Divorced - It is not disputed by counsels for petitioner and respondent Nos - 5 and 6 that petitioner is 1st wife and respondent No - 6 is 3rd wife of deceased - It is also not disputed by counsels for petitioner and respondent Nos - 5 and 6 that petitioner and respondent No - 6 were legally married wives till time of their husbands death - Learned counsel for Accountant Generals Office submits that acting upon information furnished by Government Accountant Generals Office had issued PPO and GPO vide authority naming respondent No - 6 herein to be beneficiary of Family Pension - He also submits that above has been done on basis of nomination made by deceased Government Servant - It was due to that State respondents had processed Family Pension papers in favour of respondent No - 6 and not in favour of petitioner - Held, Accordingly this court is of view that respondent No - 6 who is 3rd wife of deceased cannot be made recipient of Family Pension - Also in present case there is no submission made by counsels for parties that permission of Government had been obtained prior to his marriage with respondent No - 6 - Though Division Bench of this court has held that second wife is entitled to proportionate family pension this court is bound by law laid down by honble Apex Court and in that view of matter family pension would have to be granted to first wife - Thus in view of law laid down by Apex Court in and in view of Note of rule Services Rules this court finds that non-inclusion of petitioner by her deceased husband in nomination form cannot deprive petitioner from receiving what she should rightfully receive when she has not been divorced by him - Petition is accordingly allowed.
Key Points: - The petitioner is the 1st wife; respondent No. 6 is the 3rd wife; the deceased named respondent No. 6 as beneficiary in PPO/GPO based on nomination [14000274900003] - The deceased had not named the petitioner in the nomination; pension papers were processed in favor of respondent No. 6 [14000274900005] - The court cites authorities that the right to Family Pension is a statutory right and cannot be defeated by a contrary nomination; reliance on Javed v. State of Haryana and Khursheed Ahmad Khan [14000274900009][14000274900014] - The court notes Rule 143 of Assam Services (Pension) Rules, 1969 regarding who constitutes family and the eligibility for pension; notes eldest surviving widow principle and that pension is not payable to more than one member at a time (!) (!) (!) - The court acknowledges the Conduct Rules (Rule 24) and case Sirazun Nessa v. State of Assam recognizing that second marriages may be permitted with government permission, but pension rights depend on statutory provisions and rights cannot be defeated by nominations (!) [14000274900012] - The court sets aside PPO No. 901111204447 and GPO No. 11220444713 in favor of respondent No. 6, quashes them, and directs processing of Family Pension papers for the petitioner [14000274900017][14000274900018] - The writ petition is allowed; Family Pension to be processed in favor of the petitioner within 3 months and related authorities to issue necessary payments [14000274900019]
1. Heard Mr. R.C. Saikia, learned counsel for the petitioner. Also heard Ms. B. Bora, learned counsel for the respondent Nos. 1, 3 and 4, Mr. R.K Talukdar, learned counsel for the respondent No. 2 and Mr. Y.S Mannan, learned counsel for the respondent Nos. 5 and 6.
2. The question that has to be decided in the writ petition is whether the petitioner, who is the 1st wife or the respondent No. 6, who is the 3rd wife of the deceased Md. Tarif Uddin Ahmed would be the recipient of the Family Pension, after the death of their husband on 13.8.2015.
3. It is not disputed by the counsels for the petitioner and the respondent Nos. 5 and 6 that the petitioner is the 1st wife and the respondent No. 6 is the 3rd wife of the deceased Md. Tarif Uddin Ahmed. It is also not disputed by the counsels for the petitioner and the respondent Nos. 5 and 6 that the petitioner and the respondent No. 6 were legally married wives of Md. Tarif Uddin Ahmed till the time of their husband's death.
4. Mr. R.K Talukdar, learned counsel for the Accountant General's Office submits that acting upon the information furnished by the Government, the Accountant General's Office had issued PPO No. 901111204447 and GPO No. 11220444713, vide authority dated 30.9.2013, naming the respondent No. 6 (3rd wife) herein, to be the beneficiary of the Family Pension. He also submits that the above has been done on the basis of the nomination made by the deceased Government Servant.
5. I have heard the learned counsels for the parties.
6. The facts of the case shows that the deceased Government Servant, namely, Md. Tarif Uddin Ahmed had not given the name of the petitioner in his nomination form for payment of Family Pension. It was due to the above that the State respondents had processed the Family Pension papers in favour of the respondent No. 6 and not in favour of the petitioner.
7. It is not disputed between the counsels for the petitioner and the respondent Nos. 5 and 6 that there was a maintenance case filed by the petitioner under section 125, Cr.PC against the deceased Government Servant, i.e., Md. Tarif Uddin Ahmed.
8. A perusal of the order dated 28.7.1993, issued by the court of the Principal Judge, Family Court, Guwahati in FC(Crl) No. 86/1993 is to the effect that there was a marriage between the petitioner and Md. Tarif Uddin Ahmed and that the petitioner was living separately. The court had also directed Md. Tarif Uddin Ahmed to make payment of maintenance to the petitioner.
9. A perusal of the documents on record and the submissions made by the counsels for the petitioner and the respondent Nos. 5 and 6 goes to show that the petitioner was the 1st wife, the respondent No. 5 was the 2nd wife and the respondent No. 6 was the 3rd wife of the deceased Md. Tarif Uddin Ahmed.
10. In the case of H. Dawngi (Smt.) v. Union of India, 2001 (3) GLT 349, this court had held that the right to Family Pension is a statutory right and the same cannot be defeated by making a nomination to the contrary. If any nomination is made contrary to the statute, the said nomination would not be operative. This court in making the above observation relied upon the Judgment of the Apex Court in G.L. Bhatia v. Union of India, (1999) 5 SCC 237. Further, the Apex Court in G.L. Bhatia (supra) has also held that even if a married couple were staying separately, the surviving separately living spouse would be entitled to the family pension.
11. Rule 143 of the Assam Services (Pension) Rules, 1969 states as follows:
“143. (i) Family for the purpose of rules in this section will include the following relatives of the officer—
(a) Wife, in the case of a male officer;
(b) husband, in the case of a female officer;
(c) minor sons; and
(d) unmarried minor daughters.
Note 1: (c) and (d) will include children adopted legally before retirement.
[Note 2 : (a) Marriage for the purpose of admissibility of pensionary benefits to the spouse of a retired official shall mean marriage before or after retirement
(b) Child/
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