JUDGMENT :

A.M. Bujor Barua, J.

Heard Mr. Y.S. Mannan, learned counsel for the appellant Mustt Junufa Bibi. Also heard Mr. R.C. Saikia, learned counsel for the respondent No. 1 Mustt Padma Begum @ Padma Bibi, Ms. D. Borah, learned counsel for the respondents in the Health Department of the Government of Assam, Mr. A. Hassan, learned counsel for Accountant General, Assam, Ms. N. Sarma, learned counsel for the respondents in the Education Department as well as Mr. J.K. Goswami, learned additional senior Government Advocate for the respondents in the Pension Department. Further heard Mr. R.K.D. Choudhury, learned Dy.SGI for the authorities under the Union of India inasmuch as, in some of the matters where also the question referred is to be answered that the Union of India are respondents.

2. Junufa Bibi has instituted WA 160/2018 being aggrieved by the judgment and order dated 26.07.2017 in WP(C) No. 2182/2016. WP(C) No. 2182/2016 had been instituted by the respondent No. 1 Padma Begum @ Padma Bibi (hereinafter referred as Padma Begum) being aggrieved by the PPO No. 9011112044447 and GPO No. 11220444713 dated 30.09.2013 by which the appellant Junufa Bibi had been provided to be the beneficiary of the family pension in respect of the deceased Tarif Uddin Ahmed. The deceased Tarif Uddin Ahmed was an employee in the Health Department of the Government of Assam and was receiving the pension upon retirement from service on attaining the age of superannuation till he died on 13.08.2015.

3. Admittedly, the respondent No. 1 Padma Begum was the first wife and the appellant Junufa Bibi was the third wife of the deceased Tarif Uddin Ahmed, although the respondent No. 1 Padma Begum is stated to have been living separately and there was also an order dated 28.07.1993 of the learned Principal Judge, Family Court Guwahati in FC.Crl.No.86/1993 for payment of maintenance to the respondent No. 1 Padma Begum.

4. The issue that arose before the learned Single Judge in WP(C) No. 2182/2016 was also on the question as to if the parties are governed by the Mohammedan Law, whether the pension would be entitled to the first wife or to the second or other wives. By referring to a Division Bench judgment rendered in Sirazun Nessa vs. State of Assam and others, of this Court, reported in 2011 (4) GLT 751 and the judgment of the Hon’ble Supreme Court in Khurshid Ahmed Khan vs. State of Uttar Pradesh and Others, reported in (2015) 8 SCC 439, a conclusion was arrived in paragraph 16 of the judgment dated 26.07.2017 in WP(C) No. 2182/2016 that although in Sirazun Nessa (supra), it was held that the second wife is entitled to the proportionate family pension, but by following the ratio laid down by the Hon’ble Supreme Court in Khurshid Ahmed Khan (supra) as well as in view of Note.1 to Rule 143 (ii) of the Assam Services (Pension) Rules, 1969 (in short the Pension Rules of 1969), the non-inclusion of the respondent No.1 Padma Begum as a nominee in the pension papers submitted by the deceased Tarif Uddin Ahmed cannot deprive her from what she should rightfully receive, in a situation where she was not divorced and continued to the first wife of the deceased employee.

5. In WA 160/2018 by Junufa Bibi, reliance had been placed by the appellant in Sirazun Nessa (supra), wherein it was also provided that the pension of a deceased employee can be divided proportionately between his widows. It had also been submitted on behalf of the appellant Junufa Bibi that the judgment rendered in Sirazun Nessa (supra) had also been followed by the Division Bench in Mustt. Khadija Begum vs. Mustt Rejina Begum and five others in WA 244/2017 and Khudeja Khatun vs. State of Assam and six others in WA 178/2020.

6. When the WA 160/2018 was heard by the Division Bench on 21.12.2021, the appellant Junufa Bibi relied on paragraphs 15 and 16 of Sirazun Nessa (supra) to raise the contention that even the second or subsequent wives of a deceased Mohammedan employee would be entitled to the family pe