Gauhati High Court
Abheswari Basumatary vs The State Of Assam And 4 Ors on 15 February, 2022
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GAHC010224372021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/926/2022
ABHESWARI BASUMATARY
W/O- LATE LAXMIRAM BASUMATARY, MOTHER OF DECEASED
EMPLOYEE LATE GOPINATHBASUMATARY, R/O VILLAGE NO.2,
CHARAGAON, P.O- HANCHORA, DIST- CHIRANG, BTC, ASSAM
VERSUS
THE STATE OF ASSAM AND 4 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT OF ELEMENTARY EDUCATION, ASSAM, DISPUR, GHY 06
2:THE DIRECTOR
OF ELEMENTARY EDUCATION
KAHILIPARA
GHY 19
KAMRUP (M)
ASSAM.
3:THE DIRECTOR OF PENSION AND PUBLIC GRIEVANCES
HOUSEFED COMPLEX
DISPUR
GHY-06
4:THE DEPUTY INSPECTOR OF SCHOOLS
BIJNI
P.O- BIJNI
DIST- CHIRANG
ASSAM
5:THE ACCOUNTANT GENERAL
MAIDAMGAON
BELTOLA
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GUWAHAT
Advocate for the Petitioner : MR. S NATH
Advocate for the Respondent : SC, ELEM. EDU
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
JUDGMENT & ORDER (ORAL)
Date: 15.02.2022
Heard Mr. S Nath, learned counsel for the petitioner. Also heard Mr. NJ
Khataniar, learned counsel for the respondents No.1, 2 and 4 being the
authorities under the Elementary Education Department, Government of Assam,
Ms. DD Barman, learned Additional Senior Government Advocate for the
respondent No.3 being the Director of Pension and Public Grievances, Assam
and Mr. A Hasan, learned counsel for the respondent No.5 being the authorities
in the Accountant General, Assam.
2. The son of the petitioner Gopinath Basumatary was an Assistant Teacher in
253 No.Dahalapara LP School, Bijni and he was appointed on 27.01.1996 and
received his regular scale of pay from 1998.
3. The son of the petitioner while in service died on 13.05.2007 in harness
due to heart attack. This writ petition is instituted by the petitioner claiming for
family pension under Rule 143 of the Assam Services (Pension) Rules 1969 (for
short, the Rules of 1969) on account of the pensionable service rendered by her
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deceased son.
4. The petitioner is a 79 years old lady and it is stated that the application for
pension was submitted by her on 03.09.2020. Ms. DD Barman, learned
Additional Senior Government Advocate appearing for the Director of Pension
points out that the copy of the application annexed does not bear any
endorsement by the Department of it having been received. Without going into
such question, we take note that under the un-amended Rule 143 of the Rules
of 1969, there was no provision of family pension in respect of a mother of a
deceased employee. By the Notification No.PPG(G)10/2013/38 dated
20.08.2015 of the Commissioner and Secretary to the Government of Assam in
the Pension and Public Grievances Department, the Assam Services (Pension)
Amendment Rules, 2015 (for short, the Amendment Rules of 2015) was
notified. As per the Amendment Rules of 2015, for the purpose of Rule 143 of
the Rules of 1969, after Rule 143(ii)(c), the following had been added.
Rule 143 (ii) of the Amendment Rules of 2015 is extracted as below:
"....Family pension under this Rule shall be admissible to the following
provisions of Rule 143 (ii) of the Assam Services (Pension) Rules, 1969
apart from (a) to (c) in the existing provisions.
(d) to the father.
(e) failing (d) to the mother
(f) failing (d) & (e) to the eldest surviving brother upto 18 years of age.
(g) failing (d) (e) & (f) to the eldest surviving unmarried sister upto the
age of 21 or marriage, whichever is earlier.
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In addition to above, a Sub Rule 143 (ii)-A will also be included."
5. A reading of the amended Rule 143 (ii) as per the Amendment Rules of
2015 would go to show that on and from the Notification dated 20.08.2015
even a dependant mother of a deceased employee would be entitled to family
pension in a situation where the father is no more. In the instant case, it is
stated that the petitioner being the mother of an employee of the Elementary
Education Department is entitled to a family pension under the amended Rule
143 of the Rules of 1969.
6. We have taken note that the Amendment Rules of 2015 was made in
exercise of the powers under the provisions of Article 309 of the Constitution of
India. Thereafter the Rules of 1969 was further amended by the Assam Services
(Pension) Amendment Rules 2018 (for short, the Amendment Rules of 2018).
Note-3 of the Amendment Rules of 2018 provides as extracted:
"Note 3: If at the time of submission of family pension claim, there are
no minor children in the family, the family pension shall be paid from the
date of filing application by the claimant or from the date of coming into
force of this notification whichever is later. No claim for arrear benefit under
this clause shall be entertained. Otherwise, the family pension shall be paid
from the date following the date of death of the widow/widower as the
case may be."
7. A reading of the Note 3 of the Amendment Rules of 2018 would go to
show that for the purpose of family pension, it would be paid from the date of
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filing of the application by the claimant or from the date of coming into force of
the Notification dated 09.08.2018 by which the Amendment Rules of 2018 was
notified. It further provided that no claim for arrear benefit would be
entertained. A conjoint reading of the Amendment Rules of 2015 and the
Amendment Rules of 2018 would go to show that the entitlement of family
pension to a mother would either be from the date of filing of the application or
from the date of coming into force of the amendment, whichever is later. In the
instant case, it is stated that the application was filed by the petitioner on
03.09.2020.
8. A reading of the provisions of the two amendments as per Amendment
Rules of 2015 and Amendment Rules of 2018 would go to show that the
petitioner would be entitled to a family pension from the date on which the
application for such claim was made i.e. 03.09.2020.
9. Accordingly, we allow this writ petition and direct the Director of Pension
and Public Grievances Department to process the application of the petitioner
for payment of family pension and the same be paid from 01.03.2022 onwards.
As regards the claim of the petitioner for family pension from the date of
application upto 01.03.2022, the respondents in the Directorate of Family
Pension and Public Grievances may verify from the records as to on which date
the petitioner actually filed such application and necessary order be passed for
payment of the family pension for the period between the date of application
and 01.03.2022 and the same be done within a period of four months from the
date of receipt of the certified copy of this order.
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10. In addition to the above, in order to facilitate the process, the petitioner
may submit a fresh application for family pension forthwith so that the
Directorate of Family Pension can process the same for payment of the family
pension from 01.03.2022 onwards. But for the period between the earlier
application dated 03.09.2020 and 01.03.2022, the earlier application would be
acted upon.
11. The petitioner to obtain a certified copy of this order and place it before
the Director of Pension and Public Grievances, Assam immediately.
12. For the purpose as the deceased son of the petitioner was an employee of
the Elementary Education Department, the Director of Elementary Education
Assam also to do the needful and to cooperate with the Director of Pension and
Public Grievances Assam so that the needful can be done as indicated
hereinabove.
13. Writ petition stands disposed of in the above terms.
JUDGE
Comparing Assistant
