High Court · 2014

5. Mr. I.H. Saikia, learned counsel for the petitioner has appeared on beha lf of the petitioner whereas learned CGC, Mr. U.K. Nair represented the Accounta nt General.

6. Family pension is benefit given to certain class of legal heirs of decea sed Government Employees under Rule 137 to 140 of the Assam Pension (Services) R ules, 1969. Section IV of this set of rules deal with Family Pension Scheme, 196 4. Prior to this, rules of Family Pension, 1954 was in force. Rule 142 provides that if a Government Servant after tendering a minimum of 7 years’ continuous se rvices dies while in service his family may be granted a pension at the rate pre scribed. Rule 143 defines ’family’ within the meaning of these rules. It is sett led law that if there is a prescribed procedure for doing some act it has to be done as per the same procedure and not otherwise. Here in this case legislature in its wisdom having chosen to restrict the benefit to certain class of legal he irs, enumerated in Rule 143 of the Rules, Court has no power to widen the said s cope in exercise of power under judicial review.

7. Rule 143 of the Assam Pension (Services) Rules, 1969 defines a family fo Marriage after retirement will not be (c) and (d) will include children adopted wife, in the case of a male officer; husband, in the case of a female officer; minor sons; and unmarried minor daughters. r the purpose of the rules and the same is quoted below: (cid:28)143. (i) Family for the purpose of rules in this Section will include the follo wing relatives of the officer: a) b) c) d) Note 1:- legally before retirement. Note 2:- recognised for purpose of rules in this Section. (ii) The pension will be admissible:- (a) age whichever is earlier. (b) (c) rs of marriage, whichever is earlier. NOTE 1. In the case of a minor son, untill he attains the age of 18 years. In the case of an unmarried daughter until she attains the age of 21 yea In cases where there are two or more widows, pension will be payable to the eldest- surviving widow. On her death it will be payable to the next surviv ing widow, if any. The term ’eldest’ would mean seniority with reference to the date of marriage. (iii) Pension awarded under the rules in this Section will not be payable to mor e than one member of an officer’s family at the same time. It will first be admi ssible to the widow/widower and thereafter to the minor children. (iv) In the event of re-marriage or death of the widow/widower, the pension will be granted to the minor children through their natural guardian. In disputed ca In the case of a widow/widower upto the date of her/his death or remarri ses, however, payments will be made through a legal guardian. (v) The temporary increases granted on pension will not be admissible on the Fam ily Pension granted under the scheme in this Section. (cid:29)

8. Relying on the judgment of this Court in the case of Lalhuami reported i n 2007 (3) GLT 894 and the judgment of the Hon’ble Supreme Court in the case of State of Punjab v. Devinder Kaur reported in (1999) 9 SCC 12, the learned counse l for the petitioner wants to urge this Court that family pension was extended t o similarly situated persons by judicial pronouncements. I have gone through the judgment of Devinder Kaur (supra). In the said case the Hon’ble Supreme Court t ook recourse to Article 142 of the Constitution for doing complete justice in ex tending benefit of family pension to parents of deceased employee although the R ules did not permit the same. The said judgment being case specific and that, to o, under Article 142 of the Constitution, this cannot be applied to the case in hand. The Hon’ble Supreme Court has the power of doing complete justice to the p arties by taking recourse to Article 142 of the Constitution but the same power is not available to High Court under Article 226 of the Constitution of India.

9. Coming to the case law of Lalhuami (supra) it appears that claim of moth er of the deceased employee was on the basis of Office Memorandum dated 21.07.19

99. In that Office Memorandum depending parents were held to be entitled to bene fit of family pension by the Government of Mizoram itself. This is not the case here. Unlike the State of Mizoram no such Office Memorandum so as to extend the benefit of family pension to the parents even if they are dependent on the decea sed employee, exists in the State of Assam. The fact in the case of Lalhuami (su pra) is distinctly different from the case in hand. These two case laws relied o n by the learned counsel for the petitioner, therefore, do not apply to the pres ent case and as such the entitlement of the petitioner has to be judged on the b asis of the recital of the Rules holding the field. As stated above, Rule 143 do es not recognise parents as members of (cid:28)family (cid:29) for the purpose of the Rules, so , the present petitioner does not have a legally enforceable vested right to cla im family pension for death of her son. The writ petition is devoid of any merit and accordingly it is dismissed.