IMPORTANT POINT
The main legal point established in the judgment is the entitlement of the petitioner and the second wife, along with her disabled son, to a share of the family pension as per the Assam Services Pension Rules, 1969, and relevant legal precedents.

ORDER :

Heard Mr. J.I. Borbhuiya, learned counsel for the petitioner. Also heard Nr. N.J. Khataniar, learned Standing Counsel, Elementary Education Department, for the respondent nos. 1, 4, 7 & 9 Mr. P. Saikia, learned Government Advocate, Assam, for the respondent nos.3 & 8, Mr. S.K. Chakraborty, learned counsel for the respondent no.6, Mr. A. Deka, learned counsel for the respondent no.11, Ms. J. Das, learned counsel for the respondent no.5 and Mr. A. Chaliha, learned Standing counsel, Finance Department for the respondent no.2 & 10.

2] This writ petition is filed by the petitioner claiming for grant of family pension payable to her in view of services rendered by her late husband Govinda Chandra Malo, who was working as an Assistant Teacher in Fatik Chandra Sarkar M.E. School, Sonduba under Lahorighat Block Elementary Education, Morigaon. The husband of the petitioner expired on 20.11.2021 during his service period, leaving behind the petitioner and their two daughters and one son. The petitioner has supported her claim by placing reliance on the death certificate dated 24.03.2022 of her husband as well as the next of kin certificate issued on 04.02.2022 (Annexure-4 of the writ petition) by the Office of the Deputy Commissioner, Morigaon, showing the petitioner as the wife and her two daughters and one son as the next of kin of late Govinda Chandra Malo. According to the petitioner, in spite of applications made, the claims of the petitioner have not been granted.

3] Learned counsel for the petitioner submits that in spite of the representations being made before the respondent authorities, the pension proposal has not been forwarded and as a result, the family pension has not been released to the petitioner till date.

4] The Department of Elementary Education has filed the affidavit-in-opposition, stating that due to non submission of the next of kin certificate, the pension proposal could not be released. It is stated in the said affidavit that besides the petitioner, there is another person, who claims to be the second wife of the petitioner and who is also arrayed in the present proceedings as the respondent no.11. The respondent no.11 as the second wife is also claiming pension for her disabled son born out of the marriage between the respondent no.11 and late Gobindo Chandra Malo.

5] According to the Department, due to absence of proper next of kin certificate which is required to be forwarded by the Deputy Commissioner, Morigaon as well as the proposal for release of pension in terms of the provisions of Rule 143 of the Assam Services Pension Rules, 1969, the pension of the petitioner has not been released.

6] The respondent no.11 has also filed an affidavit stating that she is the wife of late Govinda Chandra Malo and out of their marriage a son has been born who is certified to be a person having “Congenital Dysarthria with Mentally Retarded” and he has been assessed with 50% permanent disability by the competent authority who had issued the disability certificate. Learned counsel for the respondent no.11 fairly submits that there is no dispute that the respondent no.11 is the second wife of said late Govinda Chandra Malo. It is submitted that the same has also been mentioned in the application submitted before the Deputy Commissioner, Morigaon. It is submitted by the learned counsel for the respondent no.11 that she is not claiming any benefit for herself, but for her disabled son who is entitled in law to his share of the family pension.

7] Mr. J.I. Borbhuiya, learned counsel for the petitioner, disputes the contention that the respondent no.11 who claims to be the second wife of late Govinda Chandra Malo or that and she has a son who is stated to be intellectually disabled. Learned counsel for the petitioner submits that no birth certificate of her son has been placed in support of her contention and therefore, the person who is projected to be the disabled son of the respondent no.11 cannot be accepted.

8] Mr. P. Saiki