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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Achintya Malla Bujor Barua, J.
Abheswari Basumatary W/o Late Laxmiram Basumatary – Petitioner
Versus
The State of Assam Rep. by the Commissioner and Secretary and Ors. – Respondents
WP(C)/926 of 2022
Decided On : 15-02-2022
Assam Services (Pension) Rules 1969 - Rule 143 - Assam Services (Pension) Amendment Rules, 2015 - Employment and Service matter - Regular scale of pay - Died in harness - Claiming for family pension - Son of petitioner while in service died in harness due to heart attack - Writ petition is instituted by petitioner claiming for family pension under Rule 143 of Assam Services (Pension) Rules 1969 (for short, the Rules of 1969) on account of pensionable service rendered by her deceased son - Petitioner is a 79 years old lady and it is stated that application for pension was submitted by her - Learned Additional Senior Government Advocate appearing for Director of Pension points out that copy of application annexed does not bear any endorsement by Department of it having been received - Without going into such question, Court take note that under un-amended there was no provision of family pension in respect of a mother of a deceased employee - By Notification No.PPG(G)dated of Commissioner and Secretary to Government of Assam in Pension and Public Grievances Department, Assam Services (Pension) Amendment Rules, 2015 was notified.
Finding of the Court:
Director of Pension and Public Grievances Department to process application of petitioner for payment of family pension and same be paid onwards - As regards claim of petitioner for family pension from date of application upto, respondents in Directorate of Family Pension and Public Grievances may verify from records as to on which date petitioner actually filed such application and necessary order be passed for payment of family pension for period between date of application and same be done within a period of four months from date of receipt of certified copy of this order - Petitioner may submit a fresh application for family pension forthwith so that Directorate of Family Pension can process same for payment of family pension - But for period between earlier application dated and earlier application would be acted upon - Deceased son of petitioner was an employee of Elementary Education Department, Director of Elementary Education Assam also to do needful and to cooperate with Director of Pension and Public Grievances Assam so that needful can be done as indicated hereinabove.
Result: Writ petition stands disposed of
JUDGMENT :
Heard Mr. S Nath, learned counsel for the petitioner. Also heard Mr. NJ Khataniar, learned counsel for the respondents No.1, 2 and 4 being the authorities under the Elementary Education Department, Government of Assam, Ms. DD Barman, learned Additional Senior Government Advocate for the respondent No.3 being the Director of Pension and Public Grievances, Assam and Mr. A Hasan, learned counsel for the respondent No.5 being the authorities in the Accountant General, Assam.
2. The son of the petitioner Gopinath Basumatary was an Assistant Teacher in 253 No. Dahalapara LP School, Bijni and he was appointed on 27.01.1996 and received his regular scale of pay from 1998.
3. The son of the petitioner while in service died on 13.05.2007 in harness due to heart attack. This writ petition is instituted by the petitioner claiming for family pension under Rule 143 of the Assam Services (Pension) Rules 1969 (for short, the Rules of 1969) on account of the pensionable service rendered by her deceased son.
4. The petitioner is a 79 years old lady and it is stated that the application for pension was submitted by her on 03.09.2020. Ms. DD Barman, learned Additional Senior Government Advocate appearing for the Director of Pension points out that the copy of the application annexed does not bear any endorsement by the Department of it having been received. Without going into such question, we take note that under the un-amended Rule 143 of the Rules of 1969, there was no provision of family pension in respect of a mother of a deceased employee. By the Notification No.PPG(G)10/2013/38 dated 20.08.2015 of the Commissioner and Secretary to the Government of Assam in the Pension and Public Grievances Department, the Assam Services (Pension) Amendment Rules, 2015 (for short, the Amendment Rules of 2015) was notified. As per the Amendment Rules of 2015, for the purpose of Rule 143 of the Rules of 1969, after Rule 143(ii)(c), the following had been added.
Rule 143 (ii) of the Amendment Rules of 2015 is extracted as below:
(d) to the father.
(e) failing (d) to the mother
(f) failing (d) & (e) to the eldest surviving brother upto 18 years of age.
(g) failing (d) (e) & (f) to the eldest surviving unmarried sister upto the age of 21 or marriage, whichever is earlier.
In addition to above, a Sub Rule 143 (ii)-A will also be included.”
5. A reading of the amended Rule 143 (ii) as per the Amendment Rules of 2015 would go to show that on and from the Notification dated 20.08.2015 even a dependant mother of a deceased employee would be entitled to family pension in a situation where the father is no more. In the instant case, it is stated that the petitioner being the mother of an employee of the Elementary Education Department is entitled to a family pension under the amended Rule 143 of the Rules of 1969.
6. We have taken note that the Amendment Rules of 2015 was made in exercise of the powers under the provisions of Article 309 of the Constitution of India. Thereafter the Rules of 1969 was further amended by the Assam Services (Pension) Amendment Rules 2018 (for short, the Amendment Rules of 2018). Note-3 of the Amendment Rules of 2018 provides as extracted:
7. A reading of the Note 3 of the Amendment Rules of 2018 would go to show that for the purpose of family pension, it would be paid from the date of filing of
Point of Law : Entitlement of family pension to a mother would either be from the date of filing of the application or from the date of coming into force of the amendment, whichever is later.
Point of Law : A conjoint reading of the Amendment Rules of 2015 and the Amendment Rules of 2018 would go to show that the entitlement of family pension to a mother would either be from the date of f....
Point of Law : Rule 233 provides that the State Government in the Finance Department shall reserve to themselves the right of changing the rules and interpreting their meaning in respect of any doubt....
The amendment to the Assam Services (Pension) Rules permits unmarried dependent daughters to receive family pension beyond 21 years of age.
The denial of family pension based on unreasonable deductions of service years violates legal principles of fairness; unmarried dependent daughters are entitled to pension as per amended Rule 143.
The family pension is governed by Rule 140 of the Assam Services (Pension) Rules, 1969 which inter-alia, provides that if a Government employee dies in service after having rendered more than one yea....
The court affirmed that the provisions for family pensions apply retroactively to deceased employees if conditions are fulfilled, reflecting principles of equity and social justice.
In the absence of credible evidence of remarriage, a legally married spouse is entitled to family pension and benefits under the Assam Services Pension Rules.
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