JUDGMENT :

1. Heard Mr. F. A. Laskar, learned counsel for the petitioner. Also heard Mr. D Nath, learned Senior Government Advocate for the respondents no. 1, 3, 4, 6, 7, 8, 9 and 10 being the authorities under the Pension and Public Grievances Department of the Government of Assam, Mr. A Chaliha, learned counsel for the respondent no. 2 being the Finance Department of the Government of Assam and Mr. A. Hassan, learned counsel for the respondent no. 5 being the Accountant General (A & E), Assam.

2. The petitioner claims to be the wife of Ajmal Hussain Barbhuiya having been married under the Islamic Rites and Rituals on 25.04.2004. Ajmal Hussain Barbhuiya was a constable in the 15th Assam Police Battalion (IR), Eraligool, Karimganj. According to the petitioner, her husband was deputed to be present at the Head Quarter of 4th Assam Police Battalion at Kahilipara by an order dated 17.09.2007 along with three other constables. Although the three other constables reported at Kahilipara, the husband of the petitioner did not join in the 4th Assam Police Battalion Head Quarter at Kahilipara and to that extent, there is a report dated 20.09.2007 by the Commandant 4th Assam Police Battalion, Kahilipara.

3. According to the petitioner after her husband went missing in the year 2007 as indicated above, she had neither heard about him nor had seen him.

4. The state respondents have produced certain records which indicates that in the year 2010, the husband of the petitioner was acquitted in a criminal case as per the judgment dated 28.12.2010 in G.R. Case No. 782/2008 passed by the Additional Chief Judicial Magistrate, Lakhimpur and accordingly, a stand is taken that at least upto the year 2010, the husband of the petitioner was alive. Subsequently, by another order dated 09.10.2012 of the Commandant 15th Assam Police Battalion (IR), Eraligool, the husband of the petitioner was removed from service for remaining unauthorizedly absent in duty and the said order was passed pursuant to a disciplinary proceeding initiated in the year 2008.

5. In the aforesaid circumstance, the petitioner institutes this writ petition claiming for family pension.

6. One of the stands taken by the state respondents is that as the husband of the petitioner was removed from service, therefore, he was not entitled to pension and as a consequence thereof, the petitioner being his wife would also be not entitled to family pension. If the order of removal is to be legitimately accepted, the aforesaid contention of the respondents would also have to be accepted that the petitioner would not be entitled to family pension.

7. In order to ascertain as to whether the order of removal would have to be legitimately accepted, we required the respondents to produce the materials before the Court as to whether the order of removal was either served on the husband of the petitioner or to that effect upon the petitioner herself.

8. The records produced before the Court reveal that the order of removal was neither served on the husband of the petitioner nor on the petitioner. The law in this respect has been settled by the Supreme Court in paragraph 16 of the judgment rendered in State of W.B. v. M.R. Mondal and another reported in (2001) 8 SCC 443, wherein it had been held that if an order has been passed and kept on file without being served on the person concerned, the same would be non est in law as far as the person to whom it is to be served is concerned.

9. As the order of removal had not been served either on the husband of the petitioner or on the petitioner by following the principle laid down in paragraph 16 of State of W.B. (supra), we have to accept that the order of removal would be inapplicable in respect of the petitioner meaning thereby that under the law, from the point of view of the petitioner, it has to be understood that the husband of the petitioner was still in service. But at the same time, we also take note of the factual aspect that from the year 2007, the peti