High Court · 2012

The present appeal witnesses a challenge to the judgment and order dated 9.11.2005 passed in WP(C) No. 6582/2004 negating the writ appellant’s impugnmen t of the decision of the Government of Assam, Home (A) Department, sanctioning s pecial family pension to the respondent No.5 herein, the first wife of Late S.I. (UB) Sirajul Islam Bora who expired on 15.11.93. The annulment of the communicat ion No. HMA.494/98/66 dated 13.9.2002 granting such benefit to this respondent, though sought for, was declined. We have head Mr I Hussain, learned counsel for the appellant/ writ petit ioner and Mr PS Deka, learned State counsel for the official respondents. Inspite of service of notice, the respondent No.5 did neither enter appe arance, nor arrange for her representation. The pleaded case of the writ appellant is that she is the second wife of the deceased employee aforenamed and was married to him on 1.7.90 as per the cu stomary rites and practice. The appellant has asserted that out of the said wedl ock, a male child had been born. The deceased employee Late Sirajul Islam Bora h ad contracted first marriage with the respondent No.5 in the year 1982 and there is no issue from the said matrimonial alliance. After the demise of her husband, the appellant applied before the learned Distri ct Judge, Darrang for issuance of a succession certificate in respect of the est ate of the deceased which was granted to her on 5.6.95. Being reinforced by the said decision, the appellant laid her claim for special family pension admissibl e to the deceased and his family. According to her, a sum of Rs. 50,000/- out of the ex-gratia amount of Rs. 1,00,000/- sanctioned for the death of her husband in extremist violence on 15.11.93 was released in favour of the respondent No.5, whereafter, she (respondent No.5) relinquished her further claim. According to the writ appellant, this was communicated by the Superintendent of Police, Manga ldoi to the Assistant Inspector General of Police (A), Assam vide former’s Memo No. E/3353 dated 1.12.99. As inspite of the above, by the decision impugned, spe cial family pension was sanctioned in favour of the respondent No.5 only, she ch allenged the same before the learned Single Judge albeit unsuccessfully. As the impugned judgment and order would reveal, two writ petitions were dispose d of thereby. The appellant’s assailment of the impugned decision was negated o n the following grounds:- i) Her marriage with the deceased was in contravention of Rule 26(i) of the Assam Civil Services (Conduct) Rules, 1965 (for short, hereinafter referred to as ’the Conduct Rules’) which mandated permission from the Government to be obta ined by a Government servant who had a wife living to contract a second marriage . This requirement of Rule 26 was irrespective of the personal law governing the Government servant. ii) In terms of Rule 143(iii) of the Assam Services (Pension) Rules, 1969 (f or short, hereinafter referred to as ’the Pension Rules’) pension under the Fami ly Pension Scheme was not payable to more than one member of the deceased’s fami ly at the same time. It was first admissible to the widow/ widower and thereafte r to the minor children. iii) In case of a minor son the pension will be admissible until he attains t he age of 18 years and in case of an unmarried daughter, until she attains the a ge of 21 years or her marriage whichever is earlier. iv) A minor son or daughter would be entitled to receive family pension only in the event of death of their widow mother or her re-marriage. In taking the above view, the learned Single Judge distinguished the authorities cited at the Bar suggesting that pension is a property and could be inherited b y the heirs of the deceased in accordance with the personal law governing them. Mr Hussain referring to Rule 143 of the Pension Rules has argued that as along w ith the wife or husband, as the case may be, minor sons and unmarried daughters are also included in the unit of family for the purpose of family pension under the Family Pension Scheme, 1964, in the present case, even assuming that the sec ond marriage of the deceased with the appellant was invalid, the son born theref rom was entitled to receive the family pension along with the respondent No.5. D rawing the attention of this Court to the pleaded averment of the writ appellant that meanwhile the respondent No.5 has been provided with compassionate appoint ment under the State Government, the learned counsel has urged that in the facts and circumstances of the case, the denial of family pension either to her (appe llant) or her minor son would result in gross injustice and irreparable hardship . Mr Hussain has tried to impress upon this Court that having regard to the conc ept of family pension as engrafted in Rule 143 of the Pension Rules, the members of a family as defined are collectively entitled to family pension though in ca se of a widow/ widower surviving, she or he would be entitled to receive the sam e on behalf of others. Mr Deka in response has urged that in view of the unambiguous prescriptions of t he Pension Rules and the definition of ’family’ as provided in Rule 143 thereof, no interference with the impugned judgment and order is called for. As the conc lusions recorded therein had been preceded by an exhaustive survey of the releva nt provisions of the law involved, the same are unassailable, he contended. Upon hearing the learned counsel for the parties and on a consideration of the p leaded facts and the documents available on record, we are inclined to sustain t he plea raised on behalf of the State respondents. Admittedly, the respondent No .5 is the first wife of the deceased and she was surviving when he (deceased), a s claimed by the appellant, had married her. There is no denial of the fact that the deceased had not obtained permission of the Government in marrying the appe llant during the lifetime of the respondent No.5. Non-compliance of the pre-requ isites of Rule 26 of the Conduct Rules is, thus, clearly demonstrable. Be that as it may, in terms of Rule 143 of the Pension Rules defining ’family’ f or the purpose of family pension under the Family Pension Scheme, 1964, the foll owing relatives are contemplated:- (a) (b) (c) (d) wife, in the case of a male officer; husband, in the case of a female officer; minor son; and unmarried minor daughters in the case of widow/ widower upto the date of her/ his death or re-marr Sub-clause (ii) of Rule 143 further clarifies that pension would be admissible- (a) iage whichever is earlier; (b) (c) ars or is married whichever is earlier. in the case of a minor son, until he attains the age of 18 years; in the case of an unmarried daughter, until she attains the age of 21 ye The note appearing beneath sub-clause (ii) elucidates that in case there are two or more widows, pension will be payable to the next surviving widow, if any. Sub-clause (iii) provides that pension awarded under the Rules would not be paya ble to more than one member of an officer’s family at the same time and that it would be admissible first to the widow/ widower and thereafter to the minor chil dren. That in the event of re-marriage or death of the widow/ widower, the pensi on would be granted to the minor children through their natural guardian is clar ified vide sub-clause (iv). On a combined reading of the various Clauses of Rule 143 of the Pension Rules, i t is apparent that though four classes of relatives have been contemplated to co nstitute a family for the purpose of family pension, those stand in exclusion of each other and the pension payable would be available to them in the order in w hich they are placed in Clauses-(a), (b), (c) and (d) of Rule 143 (i). That the minor son(s) and unmarried daughter(s) would not be entitled to family pension d uring the lifetime of their mother/ father, as the case may be or till their re- marriage is also vivid. On a plain reading of Rule 143 of the Pension Rules, the concept of collective entitlement is, thus, non-est in the scheme of the said p rovision of the Rules. In the above view of the matter, in the admitted facts and circumstances of the case, the decision of sanctioning family pension to the respondent No.5, thus, c annot be faulted with on the touchstone of Rule 143. The decisions referred to by the learned Single Judge and relied upon by the lea rned counsel for the appellant on a scrutiny are distinguishable on facts. The P ension Rules are the yield of a legislative exercise undertaken under the provis o to Article 309 of the Constitution of India and, thus, are of binding relevanc e. Our attention has not been drawn to any authority favouring the proposition t hat the Rules notwithstanding, the pension payable thereunder would still be gov erned by the personal law of the parties involved. In the above view of the matter, we are constrained to hold that the challenge l aid in the instant appeal lacks in substance. The appeal fails and is, thus, dismissed. No costs.