Sariful Islam vs The State Of Assam And 4 Ors
2022 Latest Caselaw 1770 Gua

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GAHC010116362019




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/3518/2019

         SARIFUL ISLAM
         S/O- LT RAHIM ALI, R/O- VILL- KHANDAKARPARA, P.S. BARPETA, P.O.
         JASIHATIPARA, PIN- 781316, DIST- BARPETA, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 4 ORS.
         REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, HOME DEPTT.,
         DISPUR, GHY-6

         2:ACCOUNTANT GENERAL (A AND E)
         ASSAM
          MAIDAMGAON
          BELTOLA
          GHY-19

         3:THE SUPERINTENDENT OF POLICE
          S.B (E)
         ASSAM
          KAHILIPARA
          GHY-19

         4:TREASURY OFFICER
          BARPETA

         5:MUKUTA BEGUM
          D/O- NAME UNKNOWN
         VILL- KHANDAKARPARA
          P.S. BARPETA
          P.O. JASIHATIPARA
          PIN- 781316
          DIST- BARPETA
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              ASSA

Advocate for the Petitioner   : MR D K BORDOLOI

Advocate for the Respondent : GA, ASSAM




                                     BEFORE
                     HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 24.05.2022

Heard Mr. D.K. Bordoloi, learned counsel for the petitioner. Also heard Mr. D. Bora, learned Govt. Advocate appearing for the State respondent nos. 1, 2 and 4 and Mr. S. Muktar, learned counsel for respondent no.5.

2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:

i) Directing the respondents to release the family pension along with the death cum other retirement benefits as admissible by the law of their deceased father to the physically challenged/specially able brother of the petitioner.

ii) To set aside/quash the death-cum-retirement benefit claim of the respondent no.5 based on her forged documents and/or her claim as a wife of Late Rahim Ali.

iii) To pay any other legal/equitable benefits along with the family pension as admissible under the provisions of Pension Policy which will fully protect the brother of the petitioner for ends of justice.

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3. The learned counsel for the petitioner has submitted that his father, namely, Rahim Ali, was working as Havildar in the Office of Assam Police Special Branch, Headquarter, in the rank of Head Constable and was last posted at Barpeta. It is claimed that on 18.02.2018, the father of the petitioner was admitted at Apollo Hospital, Guwahati, where he died on 19.02.2018, at 3:46 am, due to sepsis with multi organ dysfunction. In this regard, reliance is placed on the death certificate issued on 08.03.2018 by the Registrar (Birth and Death) Kamrup (Metro), Guwahati. The learned counsel for the petitioner submits that at the time of death, his father had left behind 4 children, out of which the youngest son, namely, Soni Ali is a mentally challenged person with parmanent physical disability. It was submitted that the mother of the petitioner had pre- deceased his father on 28.12.2000. The grievance of the petitioner is that the respondent no.5 has illegally and fraudulently claimed to be the wife of his deceased father, and had fraudulently prepared a manufactured death certificate of his father, showing as if he had died in village Khandakarpara in Barpeta District. It is also submitted that the marriage certificate, wherein it is shown as if the marriage of respondent no.5 was solemnized with the father of the petitioner on 01.08.1997, was also a manufactured document. It is submitted that if the same is assumed to be correct, then the age of the respondent no.5, at the time of her marriage was 13 years, which should make the marriage void ab initio. It is also submitted that his differently abled brother, Soni Ali is entitled to family pension on the basis of Rule 143-C of the Assam Services (Pension) Rules, 1969 (hereinafter referred to as "1969 Rules" for brevity). In support of his submissions that his mentally challenged brother would be entitled to family pension under Rule 143-C of the 1969 Rules, the learned counsel for the petitioner has placed reliance on the judgment and order dated 17.12.2018 Page No.# 4/10

passed by this Court in WP(C)4990/2017-Juri Deka vs. The State of Assam & 6 Ors.

4. The learned counsel for the petitioner has also submitted that as per the disability certificate (Annexure II to the affidavit-in-reply filed on 03.03.2022), the brother of the petitioner was suffering from mental retardation. He also relies on the Mental Retardation Certificate issued by the Bhella Mini Primary Health Centre (Annexure VI in this writ petition). The learned counsel for the petitioner submits that the petitioner is taking care of his mentally challenged brother. It is also submitted that the alleged marriage of the respondent no.5 with his father was void in view of the provisions of Rule 24 of the Assam Civil Services (Conduct) Rules, 1968, being a bigamous marriage, that was contracted during the subsistence of the previous marriage of his now deceased father with his predeceased mother.

5. Per-contra the learned Govt. Advocate has submitted that in the service book of the father of the petitioner, the name of respondent no.5 is recorded as wife and that the name of the petitioner and other siblings are also recorded as relationship of whom the right of the nominee would pass. Accordingly, it is submitted that during the life time of respondent no.5, the children of the deceased Govt. employee would not be entitled to any share of the family pension. In this regard reliance is placed on the provisions of Rule 143 (iii) of the 1969 Rules. It is also submitted that present writ petition would not be maintainable as it has not been filed in representative capacity or by the concerned person through the next friend. Similar submission has been made by the learned counsel for respondent no.5.

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6. The issue of maintainability is taken up first. In this writ petition, as indicated hereinbefore, the petitioner is not praying any relief for himself, but the petitioner is seeking direction upon the respondent authorities to release the family pension along with death and other retirement benefits of his deceased father to the mentally challenged and/or specially able brother of the petitioner. Therefore, it is apparent that the petitioner has not suffered any infringement of his legal or fundamental right. The petitioner has claimed relief on behalf of his brother, namely, Soni Ali. Nonetheless, the said brother has not been impleaded as one of the petitioners in this writ petition. In the year 2018, the specially able brother of the petitioner was 24 years and therefore, he was a major when this writ petition was filed. No document has been appended to this writ petition to show that the petitioner was the nominated representative in accordance with the provisions of Section 14 of the Mental Healthcare Act, 2017. Even otherwise, the writ petition could have been filed by the mentally challenged brother of the petitioner on being represented by the petitioner as a next friend, as per the provisions of Rule 1 read with Rule 10 of Order XXXII of the CPC. This having not been done so, the Court does not find the present writ petition to be maintainable.

7. Nonetheless, the issues raised in this present writ petition has also been examined on merit.

8. The decision of this Court in the case of Juri Deka (supra) is not shown to be an authority on the point that the entitlement of family pension to the specially able daughter of Government servant under Rule 143-C of 1969 Rules Page No.# 6/10

was payable in exclusion of persons, who were otherwise qualified to receive family pension in terms of the provisions of Rule 143 of the 1969 Rules. The provisions of Rule 143 and Rule 143-C of 1969 Rules are quoted below: -

" 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: (a) Marriage for the purpose of admissibility of pensionary benefits to the spouse of a retired official shall mean marriage before or after retirement.

(b) Child/Children for the purpose of pensionary benefits of a retired official shall mean child/children born before or after retirement.

(ii) The pension will be admissible-

(a) In the case of a widow/widower upto 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 1: 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 surviving 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 more than one member of an officer's family at the same time. It will first be Page No.# 7/10

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, payments will be made through a legal guardian.

(v) The temporary increases granted on pension will not be admissible on the Family Pension granted under the Scheme in this Section.

143-C - (1) This rule shall apply to pay life time family pension to the handicapped son(s)/Daughter(s) of Government servants who retired/died while in services.

(2) If the son or daughter of a Government servant is suffering from any disorder or disability of mind or is physically crippled or disabled so as to render him or her unable to earn a living even after attaining the age of 18(eighteen) years in the case of the son and 21(twenty one) years in the case of the daughter, the family pension shall be payable to such son or daughter for life subject to the following conditions, namely-

(i) If such son or daughter is one among 2(two) or more children of the Government servant the family pension shall be payable to the minor son or daughter as the case may be in the order of their birth until the last minor son attains the age of 18(eighteen) years or the last minor daughter attains the age of 21(twenty one) years as the case may be, and thereafter the family pension shall be resumed in favour of the son or daughter suffering from disorder or disability of mind or who is physically crippled or disabled and shall be payable to him/her for life;

(ii) If there are more than one such children suffering from disorder or disability of mind or who are physically crippled or disabled, the family pension shall be paid in the order of their birth and the younger of them will get the family pension only after the elder next above him/her cases to be eligible:

Provided that where the family pension is payable to twin children, it shall Page No.# 8/10

be paid to such children in equal shares:

Provided that when one such child ceases to be eligible his/her share shall revert to the other child and when both of them ceases to be eligible family pension shall be payable to the next eligible single child/twin children;

(a) firstly to the son, and if there are more than one son, the younger of them will get the family pension only after the life time of the elder;

(b) secondly, to the daughter, and if there are more than one daughter, the younger of them will get the family pension only after the life time of the elder;

(iii) the family pension shall be paid to such son or daughter through the guardian as if her or she were a minor except in the case of the physically crippled or disabled son/daughter who has attained the age of majority;

(iv) before allowing the family pension for life to any such son or daughter, the appointing authority shall satisfy that the handicapped is of such a nature so as to prevent him or her from earning his or her livelihood and the same shall be evidenced by a certificate obtained from a medical officer not below the rank of a Civil Surgeon setting out, as far as possible, the exact mental or physical condition of the child;

(v) the person receiving the family pension as guardian of such son or daughter (or such son or daughter not receiving the family pension through a guardian) shall produce every three years a certificate from a medical officer not below the rank of a Civil Surgeon to the effect that he or she continues to suffer from disorder or disability of mind or continue to be physically crippled or disabled.

(3) Explanations:

(a) only that disability which manifests itself before retirement or death of the Government servant while in service shall be taken into account for the purpose of grant of family pension under this rule.

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(b) a daughter shall become ineligible for family pension under this rule from the date she gets married.

(c) the family pension payable to such a son or daughter shall be stopped if he or she starts earning his/her livelihood.

(d) in such case it shall be the duty of the Guardian (or son or daughter) to furnish a certificate to the concerned Treasury or Bank, as the case may be, every month that

(i) he or she has not started earning his/her livelihood;

(ii) in case of daughter that she has not yet married.

(4) The other conditions of Family Pension Rules, 1969 will continue to operate wherever necessary."

9. From the above, it is apparent that under Note-1 appended to Rule 143(ii), on death of eldest surviving widow, pension would be payable to the next surviving widow. In this case the mother of the petitioner had pre-deceased the petitioner's father and therefore, the respondent no.5 must be held to be the only surviving widow, to be entitled to pensionary benefit, flowing under Rule 143 of the 1969 Rules. It appears that the children of a deceased Govt. servant is not entitled to pension on attaining the age of majority and therefore, the purpose of Rule 143-C of 1969 Rules is only to ensure that a specially abled child of deceased Govt. servant till such disability is renowned or if the challenged son starts earning or after challenged daugther gets married.

10. In so far as the issues relating to the allegedly fake death certificate obtained by the respondent no.5, this Court in exercise of jurisdiction under Article 226 of the Constitution of India, would refrain from giving a declaration Page No.# 10/10

as to which document is correct or which document is fake and in the opinion of the Court, the said issue should be best left for a decision by the competent Court having jurisdiction. In the present case in hand, even if the death certificate or the marriage between the respondent no.5 and the father of the petitioner is disputed by the petitioner, but, the father of the petitioner had entered himself got the name of the respondent no.5 included in the service book as next of kin and a nominee to receive pensionary benefits. Therefore, the issues whether the respondent no.5 was legally wedded wife of the father of the petitioner or whether the marriage certificate or the death certificate are fake, examined as the said issues related to disputed questions of fact which requires evidence to be gone into, the same is left upon to be decided by a competent Court having jurisdiction.

11. In view of above, the writ petition fails, and the same is dismissed.

12. As the right of the petitioner to maintain this writ petition has been decided in the negative, in the event the allegedly mentally challenged brother of the petitioner approaches the Court by way of an appropriate application, this order shall not to be treated as res judicata and the principles of res judicata would not be attracted.

JUDGE

Comparing Assistant