Gauhati High Court
WP(C)/1405/2018 on 11 February, 2021
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GAHC010044262018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C) No. 1405/2018
Smti Pranati Roy,
W/S Late Subhash Roy,
Resident of Tilak Chand Road, Ward No. 09,
P.O.- Karimganj, District.- Karimganj.
...... PETITIONER.
-Versus-
1. State of Assam, represented by the
Commissioner & Secretary to the Government
Of Assam, Home and Political Department,
Dispur, Guwhati - 781006.
2. The Commissioner and Secretary, Govt. of Assam,
Pension and Public Grievances Department,
Dispur, Guwahati, Assam.
3. The Inspector General of Prisons, Khanapara,
Guwahati-22, Assam.
4. The Accountant General (A & E), Assam, Beltola,
Guwahati - 28.
5. The Director of Pensions & Public Grievances,
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Govt. of Assam, Housefed Complex, Dispur,
Guwahati, Kamrup (M).
6. The Superintendent, Central Jail, Silchar,
P.O.- Silchar-01, Cachar, Assam.
7. Smti. Jaya Biswas @ Jaya Rani Nomosudra @ Jaya Roy,
W/o Late Subhash Nomosudra @ Subhash Roy,
Resident of Village - Tilak Chand Road,
P.O.- Karimganj - 788710, P.S. - Karimganj,
Dist. - Karimganj, Assam.
...... RESPONDENTS.
Advocate appeared for the petitioner : Mr I Alom,
Mr T Sheikh
Advocates appeared for the respondents : Mr N Dhar, R. No. 7,
Mr C Baruah, SC, AG, Assam
Mr N Goswami, GA, Assam
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
Date of Hearing : 28.01.2021
Date of Judgment : 11.02.2021
JUDGEMENT AND ORDER (CAV)
Heard Mr I Alom, learned counsel appearing on behalf of the petitioner. Also heard Mr N
Dhar, learned counsel for respondent No. 7, Mr C Baruah, learned Standing Counsel,
appearing on behalf of respondent No. 4/AG, Assam and Mr N Goswami, learned Government
Advocate, Assam, appearing for the respondent Nos. 1, 2, 3, 5 and 6.
2. According to the petitioner, she is the legally married wife of Late Subhash Roy and
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their marriage was solemnized on 15.05.2000 and they lived together as husband and wife,
till his death. Said Subhash Roy was working as Chief Warden in the office of the
Superintendent, Central Jail, Silchar, and retired from service on 30.06.2004 and died on
02.03.2013. During his lifetime, the petitioner was recorded as nominee in the Service Book
as well as he has other documents, like postal savings bank account and she also stood as a
guarantor in the bank, while her deceased husband took loan from the Bank. After the death
of her husband, she had also withdrawn the retirement benefits, like GPF, GIS, DCRG etc. But
in the year 2014, Smt Jaya Biswas, respondent No. 7 got the succession certificate ( ex- parte)
from the Court of learned District Judge, Karimganj, by misleading the Court on 08.05.2014,
without impleading the petitioner as a necessary party in the said case, vide Misc
(Succession) Case No. 2/2014, with an intention to obtain the pensionary benefit and
knowing about the same, the petitioner filed a petition for revocation of succession of
certificate and the same is pending.
3. In the meantime, respondent No. 7, on the basis of the succession certificate, filed a
writ petition before this Court, claiming herself to be the first wife of Late Subhash Roy, which
was registered as WP(C) No. 1605/2015, wherein petitioner was impleaded as respondent
No. 7, showing wrong postal address and due to the wrong address, petitioner did not receive
any notice from the Court and the writ petition was decided ex-parte against the petitioner,
directing the Commissioner and Secretary to the Government of Assam, Home Department,
to take a decision as to the entitlement of the respondent No. 7 to receive family pension,
within a period of 8 (eight) weeks, with an opportunity of hearing to both the parties. After
passing of the aforesaid order, the family pension availed by the petitioner was stopped and
same was communicated to her for information and submission of objection. Pursuant to the
same, the petitioner prayed before the authority for release of monthly family pension, which
she was drawing since 2013. The respondent authority, as directed in the writ petition, asked
both the parties to appear before the Deputy Inspector General of Prisons (HQ) for hearing
the dispute regarding entitlement of the family pension. Accordingly, she appeared and
submitted all the documents. On 04.04.2017, the respondent No. 1, issued the letter No.
HMB.96/2015/Pt/157 dated 04.04.2017, declaring that the respondent No. 7, Jaya Biswas,
being the first wife of Late Subhash Roy, is entitled to receive pension, as per Rule 143 of
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Assam Pension Service Rules. The said order has now been challenged in this writ petition.
The bone of contention of the petitioner that Late Subhash Roy nominated her as his wife, so
she is entitled to receive family pension under Rule 136 (1) of Assam Pension Rules and the
respondent No. 1 cannot rule out by an administrative order that petitioner is not entitled to
pension and the said order is violative of Article 19 (1) (f) of the Fundamental Rights under
the Constitution of India and has prayed for quashing of the order dated 04.04.2017.
4. In support of her case, the petitioner has relied on the death certificate, vide Annexure
- 1, pension order to Late Subhash Roy, declaration of the petitioner as nominee, pension
payment order to petitioner, Annexure-4, Mis-Succession Case No. 2/2014, issued in favour of
the respondent No. 7, Annexure-5 is the copy of order in WP(C) No. 1605/2015.
5. Respondent No. 3 has filed the affidavit, contending that the office of the Inspector
General of Police was unaware about the fact that Pranati Roy was the second wife and
processed the pension paper according to the documents submitted by Late Subhash Roy.
Their office came to know about the true facts that Smt Jaya Biswas was the first wife of Late
Subhash Roy on her approach with relevant documents. Further, it is submitted that since the
matter of granting family pension of Late Subhash Roy, was subjudice, the family pension
granted to the petitioner, Pranati Roy was stopped, until settlement. Further, it is submitted
that in terms of the order of Commissioner and Secretary to the Government of Assam, both
Jaya Biswas and Pranati Roy were directed to appear for hearing and after hearing of both
the parties on 11.11.2016, by Inspector General of Prisons and on the basis of supporting
documents, it was revealed that prior to marrying Pranati Roy, Late Subhash Roy married
Jaya Biswas and also duly nominated Jaya Biswas as nominee in Form No. 7, from 25.06.1984
and, their two children were subsequent nominees. As such, Commissioner and Secretary to
the Government of Assam, Home and Political Department, with due consent with the Judicial
Department and Pension & Public Grievances Department and in terms of Rule 143 of the
Assam Services Pension Rules, 1969, the impugned order dated 04.04.2017 was passed,
considering Smt Jaya Biswas as first wife of Late Subhash Roy, for availing pension benefits.
Relevant documents, i.e., Form No. 7, filled up by Late Subhash Roy, under State Government
Employees' Scheme and the impugned order dated 04.04.2017, are annexed. They have also
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admitted that Late Subhash Roy nominated the petitioner, Pranati Roy, as his nominee and
the first son of Jaya Biswas, Suraj Roy as the persons to whom, the right conferred on the
nominee, predeceasing the officer or the nominee dying after death of the officer, but before
receiving payment of Gratuity in Form No. 12 of the pension papers and has listed his second
son, Sandipan Roy in the statement showing the details of family members of Late Subhash
Roy. However, since yet Subhash Roy married Pranati Roy, only on 05.08.2000, which is quite
later than nominating Jaya Biswas, in Form No. 7 as his wife and taking note of all above,
they have considered Jaya Biswas as first wife of Late Subhash Roy.
6. In her affidavit, Smt Jaya Biswas, respondent No. 7 has stoutly denied the case of the
petitioner, firstly contending that the case is barred by constructive res judicata, inasmuch, as
the matter in hand substantially was the issue in the former writ petition, WP(C) No.
1605/2015, while she sought for declaration that she is entitled for pension, being the first
wife of the deceased, Subhash Roy and the petitioner was arrayed as respondent No. 7 in the
said case, but she did not contest the case at the earliest opportunity. Secondly, it is
contended that the petitioner is not the legally married wife of Late Subhash Roy, as she has
not annexed any document in support of her contention that she was the legally married wife
of the deceased, Subhash Roy. Whereas, her marriage with Late Subhash Roy was
solemnized on 22.02.1974, as per Hindu rites and out of their wedlock, two sons, namely,
Suraj Roy and Sandipan Roy were born to them (birth certificate annexed). Further, she was
nominated to receive all the retirement benefits on 25.06.1984. Further, it is submitted that
her name along with her husband and her two sons were recorded in all municipality records
and electoral roll in the year 1977. However, her husband without knowledge of the authority
entered into a second marriage with the petitioner on 15.05.2000, which is a misconduct
under Rule 24 of the Assam Civil Service Conduct Rules and he nominated the petitioner for
receiving pensionary benefit in the year 2004. It is contended that writ petitioner is not
legally entitled to receive any family pension, while the first wife is still surviving, as provided
under Rule 137 (5). It is also contended that the writ petitioner was an accused in a case
under Section 302 IPC, and convicted to suffer Life Imprisonment by the learned Sessions
Judge, Cachar, Silchar, which was also affirmed by this Court and on appeal before the Apex
Court, she was out of jail on bail, and is not entitled to receive pension under Section 137 (9)
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of Assam Services (Pension Rules), 1969.
Further, she submits that after receipt of the succession certificate, she informed the
Inspector General of Prisons about her entitlement for family pension on 20.08.2014, and due
to their inaction, ultimately, she had to prefer the writ petition, WP(C) No. 1605/2015, and
the petitioner, herein, arrayed as respondent No. 7, despite service of notice, did not appear
before the Court and accordingly, this Court directed the Commissioner and Secretary to the
Government of Assam, Home Department to consider the issue, as to the entitlement of Jaya
Biswas and petitioner, Pranati Roy, to the family pension. As regards the impugned order
dated 04.04.2017, it is submitted that the same was passed as directed by this Court, after
hearing both the parties, having regard to the documents produced before the authority, so
there is no infirmity in the aforesaid order. The necessary supporting documents, such as
birth certificate of their son, nomination paper (Form No. 7), electoral roll of the year, 1977,
nomination paper to the petitioner, dated 30.06.2004, affidavit filed by Late Subhash Roy
regarding marriage between the parties on 15.05.2000, showing their address as Sarat Pally,
North Kanakpur, Part-II, District - Cachar, Silchar, and all other connected documents
referred, have been annexed with the affidavit.
7. The petitioner, herein, also filed an affidavit-in-reply against the affidavit-in-opposition
filed by the respondent No. 3, contending that Late Subhash Roy, while he was in service
married her on 15.05.2000, as per Hindu Law and which was known to the Department and
she was also declared as a nominee of Subhash Roy, to receive the pensionary benefits and
only after death of Late Subhas Roy, on 02.03.2013, Jaya Biswas appeared, claiming financial
benefits of Late Subhash Roy. Referring to the stand taken by the State respondent in WP(C)
No. 1605/2015, it has been contended that in the said decision, the State Counsel submitted
that nomination is to be made in Form Nos. 12 to 15, whereas, in the present case,
nomination was made in favour of Jaya Biswas in Form No. 7, whereas, it was filled up in
Form No. 12 in favour of respondent No. 7 (petitioner, herein). Hence, nomination in required
format was not made in favour of petitioner (respondent No. 7, herein) for grant of pension.
Accordingly, petitioner now contended that as there was no proper nomination in favour of
respondent No. 7, so she is not entitled for pensionary benefits and so, the findings of the
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authority dated 04.04.2017, is contrary to the stand taken before this Court. Thus, she
contends that for violation of the Rules for nomination as laid down under Section 136 of the
Assam Service (Pension) Rules, 1969, respondent No. 7 is not entitled to get family pension
and by overlooking the provisions of law, the respondent authority illegally passed the
impugned order.
8. The learned counsel for the petitioner advanced his arguments on the same contention
that has been raised in the petition that the marriage between the present petitioner and
Late Subhash Roy was known to the authority and she is duly nominated by him during his
lifetime and whereas, pensionary benefit was also released to her on the basis of such
documents and she is not aware of such earlier marriage of her deceased husband, she
cannot be deprived of the pensionary benefits under the law. The respondent authority, by
violating the standard procedure and Rules, as indicated in the petition, has passed the
impugned order dated 04.04.2017, which is liable to be quashed and set aside.
9. The learned counsel for the respondent No. 3, has, however, submitted that the
impugned order dated 04.04.2017 was passed as per direction of this Court in WP(C) No.
1605/2015, by giving a due opportunity to both the parties of being heard with supporting
documents. It is submitted that at the time of passing such order, view of the Judicial
Department as well as the Pension and Public Grievances Department was also taken and
there is no any illegality in the aforesaid order.
10. Learned counsel Mr Dhar, appearing for the private respondent No. 7, has also urged
that the impugned order has set at rest the dispute between the two wives of the deceased
employee after obtaining the view of the concerned Department and after personal hearing of
both the parties and petitioner being the illegally married second wife of the deceased
employee, cannot avail the statutory benefit of pension, without there being any legal right
accrued to her. The deceased husband married the petitioner without any permission from
the Government and without any knowledge and consent of respondent No. 7 and such
second marriage is per se illegal and consequently, nomination in favour of petitioner has no
force in law.
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11. Due consideration is given to the rival submissions of both the parties and the
pleadings thereof.
12. On brief summarise of the facts of both the parties, it is discernible that both the
parties claim to be the wife of the deceased employee, Subhash Roy. According to the
petitioner, she was married by Late Subhash Roy on 15.05.2000, whereas, according to
respondent No. 7, she was married to the Subhash Roy, on 22.02.1974 and two sons were
born to them (Suraj and Sandipan) and respondent No. 7 was the nominee for retirement
benefit, as per nomination on 25.06.1984. The respondent No. 7 has produced certain
documents, like birth certificate of the child borne out of their wedlock on 30.10.1978,
nomination of respondent No. 7 as on 25.06.1984, electoral roll of 1997, comprising the
names of respondent No. 7, deceased Subhash Roy and their two children, Suraj and
Sandipan and also the succession certificate issued in favour of respondent No. 7, showing
her and her two children to be the legal heirs of Late Subhash Roy. The petitioner, herein,
totally failed to challenge the authenticity of all the above documents produced by the
respondent No. 7, whereas such documents unerringly proved or established that respondent
No. 7 was the legally married wife of Late Subhash Roy.
13. Undisputedly, the deceased Subhash Roy retired on 30.06.2004 and married the
petitioner on 15.05.2000 and there is no any other supporting evidence regarding their
marriage, save and except one affidavit sworn by the parties (annexed to the nomination
made to the petitioner as on 28.08.2004). There is also no other document that the deceased
Subhash Roy married the petitioner with due permission or intimation to the authority
concerned/the department. Such a nomination cannot be a valid one in the eye of law. The
deceased who was almost at the verge of retirement married the petitioner, which itself is a
doubtful matter, in absence of any authentic documents.
14. In view of the respective pleadings and findings above, the impugned order of
respondent No. 3, suffers from no any illegality and more so, it is not an administrative order
as challenged by the petitioner, which will be discussed at a later stage.
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15. Now, as regards the status of both the petitioner and respondent No. 7, it can be
found that as has been held in the impugned order, respondent No. 7 is the first wife of the
deceased employee.
16. Relying on the decision of Rameshwari Devi -Vs- State of Bihar; AIR 2000 SC 735, the
Hon'ble Gauhati High Court [2003 (3) GLT 400], has held that when the Government servant
died, leaving 2 (two) wives, the second marriage by the Government servant being void, only
the first wife is entitled to get the pension amount, she being the legally wedded widow.
17. Further, it has been held in Suraiya Sultana -Vs- State of Assam & Others; 2008 (3)
GLR 589, that second wife, whom the deceased employee of the Government had married
during the validity of first marriage and her children, is not entitled to family pension for
violation of the Section 5 (1) of the Hindu Marriage Act. It has been elaborately laid down
that as per Section 5 (1) of the Act, neither party must have a spouse living at the time of
marriage. Under the codified Hindu Law, no Hindu can have more than one wife and no
woman can have more than one husband. If that be so, second marriage entered into by the
deceased employee is of no consequence and she cannot claim to be the legally married wife
of the deceased employee, being the second marriage is void and not recognized in law.
Further, as per Rule 26 (1) of the Civil Service Conduct Rules, no Government servant who
has a wife living shall contact marriage without first obtaining the permission of the
Government, notwithstanding that such subsequent marriage is permissible under personal
law for the time being applicable to him.
18. So far as the nomination, it has been held that a Government employee is entitled to
nominate the family members indicated in the Rule. The provision of nomination coupled with
the mandate of Rule 143 (III) of Pension Rules, Rule 26 (1) of the Civil Service Conduct
Rules, makes the position clear that it is the legally wedded widow, who alone is entitled to
family pension during her lifetime.
19. The same principle has been reiterated in the subsequent decision of Miss Fazila
Begum -Vs- State of Assam & Others; 2009 (3) GLR 201, wherein it has been held that Rule
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26 (1) of the Civil Service Conduct Rules prohibits polygamy.
20. For proper appreciation of the matter, let us discuss the Rules 136, 137, 143 of Assam
Services Pension Rules. Rule 136 deals with the subject nomination, wherein the words,
"family" for the purpose of this Rule, shown to have included the following relatives of the
officer, which are :-
i) Wife in the case of male officer.
ii) Husband in the case of female officer.
iii) Sons.
iv) Unmarried and widowed daughters.
v) Brothers below the age of 18 years and unmarried or widowed
sisters.
vi) Father.
vii) Mother.
Note 1: (iii) and (iv) will include step-children and adopted children.
(b) **** **** ****
In the "Note" of this rule Sl. No. (iii) and (iv) are said to have included step
children and adopted children. In this rule, there is no mention of second wife
as one of the relatives of the officer.
21. Relevant provisions of Rule 137 are quoted as under:-
"137(5) Except as may be provided by a nomination under sub-rule (6) ─
(a) a pension sanctioned under this section will be allowed ──
(i) to the eldest surviving widow, if the deceased is a male officer or to the husband, if
the deceased is a female officer;
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(ii) * * * *** *** ***
22. Relevant provisions of Rule 143 of the 1969 Rules reads as under:-
143. (i) Family for the purpose of rules in this Section will include the following relatives of
the officer─
(a) wife, in the case of a male officer;
(b) husband, in the case of a female officer;
(c) minor sons; and
(d) unmarried minor daughters.
Note 1.─ (c) and (d) will include children adopted legally before retirement.
Note 2.─ Marriage after retirement will not be recognised for the purposes of rules in this
Section.
(ii) The pension will be admissible─
(a) in the case of widow/widower up to the date of her/his death or re-marriage
whichever is earlier.
(b) In the case of a minor son, until he attains the age of 18 years.
(c) In the case of an unmarried daughter, until she attains the age of 21 years or marriage
whichever is earlier.
Note.─ In case where there are two or more widows, pension will be payable to the next
surviving widow, if any. The term "eldest" would mean seniority with reference to the date
of marriage.
(iii) Pension awarded under this rules in this Section will not be payable to more than one
member of an officer's family at the same time. It will first be admissible 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 cases, however,
payment will be made through a legal guardian.
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(v) The temporary increase granted on pension will not be admissible on the Family
Pension granted under the Scheme in this Section."
23. Rule 137(5)(a)(i) of the Pension Rules provides that except when nomination is not
made by the deceased officer under sub-rule (6) of the Rules 137, a pension sanctioned
under Rule 137 will be allowed to the eldest surviving widow of the deceased. Then, Note 1
to Rule 137(5) explains that the expression "eldest surviving widow" occurring in clause (a)(i)
above should be construed with reference to the seniority according to the date of marriage
with the officer and not with reference to the age of the surviving widow. Note to Rule 143(ii)
says that in cases where there are more than two or more widows, pension will be payable to
the next surviving widow, if any and that the term "eldest" would mean seniority with
reference to the date of marriage. On careful reading of the aforesaid provisions, there can
be no difficulty in holding that eldest surviving wife with reference to the date of her marriage
with the deceased will have the first and paramount charge upon the family pension of a
deceased employee. In other words, none other than the eldest surviving widow of the
deceased officer will be entitled to draw his family pension. In the instant case, there is no
dispute that the petitioner is the eldest surviving widow of the deceased officer. Then, Rule
143(iii) makes it amply clear that the pension so awarded will not be payable to more than
one member of an officer's family at the same time and that it will first be admissible to the
widow/widower and thereafter to the minor children. This provision is couched in plain
English, which admits of no interpretation. No other person including a second wife or a son,
legitimate or otherwise, has any right to receive the family pension with the eldest surviving
widow till her death or re-marriage.
Now, from a conjoint reading of all the rules particularly Rules, 143, 136 and 137 and
it would appear that a surviving second wife is not entitled to have pension when the first
wife is alive.
24. In terms of the provisions under the Rules, wife indicates the legally married wife (not
a second wife) is entitled for retirement benefit and from the pleadings as well as
documentary evidence, produced by the respondent No. 7, it has been firmly established that
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the respondent No. 7 is the first wife (eldest) of the deceased employee and hence, there
appears no illegality in the impugned findings so arrived by the respondent authority.
25. The challenge of the petitioner that the respondent authority, by an administrative
order cannot infringe the fundamental rights of the petitioner to receive pension, only on the
death of her husband, is now to be looked into. Admittedly, such an order has been passed
pursuant to the direction given by this Court in the writ petition and after giving an
opportunity of hearing to both the parties and after examining the relevant documents and
that too, after obtaining the view of Judicial as well as Pension Department. It is in the nature
of fact finding enquiry and the decision, thereafter, on rational basis. Such an order has been
passed after due exercise and there is no question of infringement of fundamental rights. In
view of the above findings and discussions, the petitioner loses her locus to assert her legal
claim to get any pensionary benefit under the law. As soon as the petitioner is held to be the
second wife of the deceased employee, she cannot claim the benefit under Rule 136 and
resultantly, her claim under Rule 143 is not maintainable. There is no valid nomination of
petitioner in the eye of law, hence, of no consequence.
26. As has been discussed above, law is settled that two Hindus cannot contact marriage
after enforcement of Hindu Marriage Act and if any of them is having a living spouse, second
marriage would be a nullity and would not be protected under the Conduct Rules as well as
Pension Rules. The second wife under the Hindu Law will have no right whatsoever as the law
prohibits second marriage as long as the Government servant has a spouse alive. Thus, the
harmonious construction of Rules governing pension has to be interpreted as per law
governing marriage as applicable to the Government servant and where the second marriage
is void under the law, second wife will have no status of a widow of Government servant to
claim such benefit under the law. The decision relied upon by the petitioner, Deokinandan
Prasad -Vs- State of Bihar & Others; AIR 1971 SC 1409, wherein, it has been held that the
State cannot by an executive order, curtail or abolish the right of public servant to receive
pension, whereas, pension is also a property within the meaning of Article 31 (1) of the
Constitution of India, is of no help to the petitioner, in the factual backdrop of the present
case.
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27. In view of all above, this Court is of the considered opinion that there is no merit in the
challenge to the impugned order dated 04.04.2017, which is upheld accordingly and the
respondent authority is at liberty to release the pensionary amount to the respondent No. 7,
as per law.
28. With the findings above, the petition stands disposed of.
JUDGE
Comparing Assistant
