The legitimate son through the deceased's first wife is entitled to a share in the family pension and other service benefits as per the CCS(Pensions) Rules.

S.C. Das, J.

Pradip Malakar, since deceased, married Piali Sutradhar(petitioner No.1) in January, 1998 and thereafter they lived and cohabited as husband and wife and out of their cohabitation Anik Malakar(petitioner No.2) was born on 04.10.2000. Marriage between Pradip Malakar and Piali Sutradhar was dissolved by a decree of divorce passed by the Judge, Family Court, Agartala on 29.10.2009 in TS(Divorce) 146 of 2008. Thereafter, Pradip Malakar married Arpita Basak(Malakar), the respondent No.5 and out of their cohabitation one son, namely Hridam Malakar was born. Pradip Malakar was working as a Helper in the Public Works Department of the Government of Tripura under the official respondents(respondent Nos.1 to 4) and he died in-harness on 18.12.2013.

2. After the death of Pradip Malakar, petitioner No.1 being the mother and natural guardian of minor petitioner No.2 made application to respondent No.4 on 30.12.2013 claiming share in the family pension and other service benefits of deceased Pradip Malakar. Respondent No.3 by writing a letter dated 10.12.2014 (Annexure-6 to the writ petition) contended that as per advice of the Law Department of the Government of Tripura the payment of death-cum-gratuity, leave salary, group insurance, GPF, etc. of deceased Pradip Malakar has been finalized and accordingly the decision of the Government was conveyed to the competent authority.

3. By filing this writ petition the petitioners claimed that petitioner No.2 being the son of Pradip Malakar through first wife is entitled to 50 percent of the amount payable towards death-cum-gratuity, leave salary, group insurance, GPF, etc. of deceased Pradip Malakar. The petitioners also claimed that petitioner No.2 is also entitled to 50 percent of the family pension.

4. Respondent No.5 by filing counter affidavit contended that Pradip Malakar at the time of his death left behind petitioner No.2 as his minor son through first wife, Piali Sutradhar and respondent No.5 and their son Hridam Malakar. There are three legal heirs of deceased Pradip Malakar entitled to the estate of said Pradip Malakar on his death. It is the case of the respondent No.5 that Pradip Malakar is entitled to one share in leave-cum-retirement gratuity, leave salary, group insurance, GPF, etc. and in the family pension also. It is firmly contended by respondent No.5 that petitioner No.2 is not entitled to the 50 percent share of family pension and other service benefits.

5. The State respondents contended that pension is to be paid to the wife only and so respondent No.5 is only entitled to draw the pension and pension cannot be paid to petitioner No.2.

6. Learned counsel, Mr. Saha appearing for the petitioners submitted that petitioner No.1 is the divorced wife of Pradip Malakar and petitioner No.2 is the son of deceased Pradip Malakar and petitioner No.1. So, petitioner No.2 is entitled to 50 percent of the pension and other pensionary benefits due to death of Pradip Malakar and the other 50 percent respondent No.5 and her son Hridam Malakar are entitled. The official respondents refused to pay 50 percent of the pension to the petitioner No.2 and therefore direction may be given to the official respondents to make payment of 50 percent of the pension to petitioner No.2. He has also submitted that petitioner No.2 is also entitled to the 50 percent share of other service benefits.

7. On the other hand, learned counsel, Mr. Bhowmik appearing for respondent No.5 submitted that Pradip Malakar at the time of his death left behind respondent No.5 as his legitimate wife and one son, Hridam Malakar. Pradip Malakar also left petitioner No.2 as his only son through first wife who has been divorced and so the entire estate of Pradip Malakar including pension shall be divided in three parts and one part may go to petitioner No.2 and the other two part to respondent No.5 and her son Hridam Malakar.

8. Learned Addl. G.A., Mr. Chakraborty appearing on behalf of the State respondents submitted