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GAHC010269292022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/31/2023
RUPA DIHINGIA
D/O- LATE HEMA DIHINGIA,
R/O- CHATIACHUKA, NIZ-GOHPUR,
P.S.- GOHPUR,
DISTRICT- BISWANATH, ASSAM,
PIN- 784168.
VERSUS
THE STATE OF ASSAM AND 9 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM,
PUBLIC HEALTH ENGINEERING DEPARTMENT,
DISPUR, GUWAHATI- 781006.
2:THE DIRECTOR OF PENSION AND PUBLIC GRIEVANCES
DISPUR
GUWAHATI- 781006.
3:THE ACCOUNTANT GENERAL
ASSAM
BELTOLA
GUWAHATI- 781029.
4:THE CHIEF ENGINEER (PHE) WATER
HENGRABARI
GUWAHATI- 781036.
5:THE ADDITIONAL CHIEF ENGINEER (PHE)
NORTH ASSAM ZONE
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TEZPUR
PIN- 784001.
6:THE EXECUTIVE ENGINEER (PHE)
BISWANATH CHARIALI DIVISION
PIN- 784176.
7:THE DEPUTY COMMISSIONER
BISWANATH
BISWANATH CHARIALI
PIN- 784176.
8:NIRMAL BHUYAN
S/O- LATE UMARAM BHUYAN
R/O- VILLAGE- NIZ-GOHPUR
DHENUDHARA PATHAR
P.S. AND P.O.- GOHPUR
DISTRICT- BISWANATH
ASSAM
PIN- 784168.
(VILLAGE HEAD MAN)
9:MRS. NIZU DIHINGIA
W/O- LATE HEMA DIHINGIA
R/O- VILLAGE- DUBIA
P.S.- GOHPUR
DISTRICT- BISWANATH
ASSAM
PIN- 784168.
10:MR. PRASANTA DIHINGIA
S/O- LATE NIMA DIHINGIA
R/O- VILLAGE- DUBIA
P.S.- GOHPUR
DISTRICT- BISWANATH
ASSAM
PIN- 784168
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Advocate for the Petitioner : MR. S BARMAN
Advocate for the Respondent : SC, P H E
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
ORDER
06.01.2023 Heard Mr. S Barman, learned counsel for the petitioner. Also heard Mr. SN Hasan, learned counsel for the respondents No.1, 2, 4, 5 and 6 being the authorities under the PHED, Mr. CS Hazarika, learned Junior Government Advocate for respondents No.2 and 7 being the authorities under the Pension and Public Grievance Department as well as the Deputy Commissioner, Biswanath and Mr. B Chakravarty, learned counsel for the respondent No.3 being the Accountant General (A & E), Assam.
Issue notice, returnable by six weeks.
Extra copies of the writ petition be served on the learned counsel for the respondents as indicated hereinabove within three days.
Petitioner to take steps for service of notice on respondent No.9 by registered post with A/D as well as by dasti service. Steps within three days.
The petitioner Rupa Dihingia is an unmarried daughter of the deceased employee Hema Dihingia through his first wife Nirmali Dihingia, who died on 02.12.1997. After the death of his first wife, the deceased employee Hema Dihingia married the respondent No.9 Niju Dihingia and accordingly after the death of the deceased employee, Niju Dihingia being the eldest surviving wife of Page No.# 4/5 the deceased, family pension is being paid to her. Rule 143 of the Assam Services (Pension) Rules, 1969 (for short, Pension Rules of 1969) also provides for entitlement of family pension to an unmarried daughter of a deceased employee and accordingly, under the law it has to be understood that the petitioner is also entitled to family pension.
In the judgment of the Full Bench of this Court rendered in WA No.160/2018 dated 22.12.2022, we have distinguished between the entitlement of family pension and to whom the family pension would be payable under the Pension Rules of 1969. The aforesaid judgment also held that the family pension being payable to the eldest of the surviving widow or wife would not mean that the entire family pension so payable would be the personal property of the eldest of the surviving widow or wife and the family pension so payable would be held by the eldest of the surviving widow or wife as a trustee for all such other persons who are entitled to the benefits of the family pension in terms of Rule 143 of the Pension Rules of 1969. If the eldest of the surviving wife who holds the pensionery benefit as a trustee is not taking care of other such persons who are so entitled to the benefits of family pension under the law, it can be construed to be a breach of trust.
Considering the prima facie case being made out by the petitioner and in view of the balance of convenience and irreparable loss that the petitioner may suffer, until further order family pension be not given to the respondent No.9 Niju Dihingia in respect of the deceased employee Hema Dihingia.
Further continuation of the interim order or what further order is to be passed would be considered upon appearance of the respondent No.9.
List after six weeks.
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