Point of Law: A divorced daughter, if dependent on her father cannot be excluded and has to be included within the meaning of the word family and has to be treated at par with an unmarried daughter.

JUDGMENT :

The extraordinary jurisdiction of this Court is sought to be invoked by filing this application under Article 226 of the Constitution of India whereby the petitioner has raised an important question of law in connection with the Assam Services (Pension) Amendment Rules, 2018 (in short, the Rules of 2018) whereby Rule 143 has been amended so as to provide for family pension to unmarried dependent daughters beyond the age of 21 years of age.

2. Before deliberating on the issue raised, it would be convenient if the facts of the case are stated in brief.

3. The mother of the petitioner late Mehmuda Begum was working as a Khalasi against a substantive post under the establishment of the respondent no. 3 i.e. the Executive Engineer, Public Health Engineering Department (hereinafter, PHE). The mother of the petitioner had died-in-harness on 17.10.2018 by which time, the mother had served for 22 (Twenty Two) years, 1(one) month and 8(eight) days, which was the qualifying service, leaving behind the petitioner, who is the only next of kin (daughter) and was solely dependent on the income of her mother.

4. Though, the petitioner got married on 30.12.2013, she was divorced on 24.09.2014 and had thereafter lived with her mother. Upon the death of her mother on 17.10.2018, the petitioner had applied for family pension, DCRG and other retirement benefits on account of the service rendered by her mother. She had accordingly submitted Form No. 19 and Form No. 3 however, vide communication dated 06.08.2019 such entitlement was declined. It is this action of the respondent authorities declining the family pension to the petitioner is the subject matter of dispute in this writ petition.

5. I have heard Shri I.H. Saikia, learned counsel for the petitioner. I have also heard Shri P.N. Goswami, learned Additional Advocate General, Assam as well as Shri B. Gogoi, learned Standing Counsel, Finance Department and Shri R. Dhar, learned Standing Counsel, AG, Assam.

6. Shri Saikia, the learned counsel for the petitioner submits that the present is a case where the father of the petitioner had passed away long before her mother. A scheme was introduced vide a notification dated 14.09.2017 by the Finance Department on the subject “Scheme for Compassionate Family Pension in lieu of Compassionate Appointment” which in short is also known as Compassionate Family Pension Scheme (CFP). As per the said Scheme, the primary objective of the policy has deemed to support the family of the employee who dies-in-harness, who was the sole winner of the family as a stop-gap arrangement and if the family managed to sustain themselves for three years after the death of the employee, there was no ground for Compassionate Appointment. Hence, to replace the existing policy of the appointment on the Compassionate Ground the present CPF Scheme was introduced. Under Clause 5 of the notification, guidelines have been laid down, the relevant parts of which are extracted hereinbelow-

“5.1. The applicable definition of family of the employee dies-in-harness will be the definition of family that is given in the Assam Services (Pension) Rules, 1969 (as amended from time to time).”

7. Shri Saikia, the learned counsel for the petitioner had reiterated that the petitioner got divorce much prior to introduction of the Scheme vide the notification dated 14.09.2017. The learned counsel has also drawn the attention of this Court to the Assam Services (Pension) Rules, 1969 (in short, Rules of 1969), more specifically Rule 143 (i) (d) as per which, family pension for the purpose of the Rules will include unmarried minor daughters. Attention of this Court has also been drawn to the amendment of the same vide notification dated 09.08.2018 whereby the words “unmarried minor daughters” have been replaced by “unmarried dependent daughters.” Further, a Proviso has also been inserted which is as follows:

“Provided that Family Pension shall be allowed to continue beyond 21 years of age to an unmarri