Sadari Tamuli @ Sadari Tamuly vs The State Of Assam And 5 Ors
2022 Latest Caselaw 4272 Gua

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GAHC010208082022




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

                          Case No. : WP(C)/6681/2022

         SADARI TAMULI @ SADARI TAMULY
         D/O- LT. NILAKANTA TAMULI, R/O- VILL- GOPALPUR GUCHKATA, P.O.
         SANTIPUR, P.S. SIVASAGAR, DIST.- SIVASAGAR, ASSAM, PIN- 785667



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, HOME AND
         POLITICAL DEPTT., DISPUR, GHY-06, ASSAM

         2:THE PRINCIPAL PRIVATE SECRETARY TO THE HONBLE CHIEF MINISTER
         ASSAM SECRETARIAT
          DISPUR
          GHY-06

         3:THE DY. COMMISSIONER
          SIVASAGAR
          DIST.- SIVASAGAR
         ASSAM
          PIN- 785640

         4:THE ADDL. DY. COMMISSIONER
          SIVASAGAR
          DIST.- SIVASAGAR
         ASSAM
          PIN- 785640

         5:THE CIRCLE OFFICER
          SIVASAGAR REVENUE CIRCLE
          DIST.- SIVASAGAR
         ASSAM
          PIN- 785640
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            6:THE ACCOUNTANT GENERAL
            ASSAM
             MAIDAMGAON
             BELTOLA TINIALI
             GHY
             DIST.- KAMRUP (M)
            ASSAM
             PIN- 78102

Advocate for the Petitioner   : MR. A BHATTACHARYYA

Advocate for the Respondent : SC, AG

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

JUDGMENT & ORDER (ORAL)

Date: 04.11.2022

Heard Mr. A Bhattacharjee, learned counsel for the petitioner. Also heard Ms. M Barman, learned Junior Government Advocate for the respondents No.1, 3, 4 and 5 respectively being the Secretary to the Government of Assam in the Home and Political Department, Deputy Commissioner, Sivasagar, Additional Deputy Commissioner and Circle officer Sivasagar as well as Mr. RK Talukdar, learned counsel for the respondent No.6 being the Accountant General (A & E), Assam. The array of respondent No.2 stands deleted being not a necessary party.

2. The petitioner is the unmarried daughter of Nilakanta Tamuli who was a freedom fighter having taken part in the independence movement and was also given the benefit of Swatantrata Sainik Sanman Pension. After the death of the Page No.# 3/6

father of the petitioner, the Swatantrata Sainik Sanman Pension was also provided to his second wife namely Phul Tamuli. After the death of the wife of the freedom fighter, the petitioner being an unmarried daughter of a freedom fighter makes a claim for grant of the Swatantrata Sainik Sanman Pension. The Swatantrata Sainik Sanman Pension is governed by a set of Rules called the Assam Swatantrata Sainik Relief Rules, 1988 (for short, the Rules of 1988). The Rules of 1988 had been notified in the Assam Gazette dated 01.05.1991.

3. Rule 10(1) of the Rules of 1988 provides that the pension already enjoyed by a Swatantrata Sainik shall be transferred to his widow in case of death of the Swatantrata Sainik subject to production of death certificate from the concerned medical officer. Rule 10(4) provides that in case of death of the widow/widows of the Swatantrata Sainik, the unmarried daughters may apply to the State Government through the District authority concerned for transfer of the pension supported by requisite certificates showing proof of age, date and cause of death of the widow/father and legal heir of the deceased Swatantrata Sainik.

4. On the death of her mother Phul Tamuli, the petitioner made an application before the Additional Deputy Commissioner Sivasagar for transfer of the Swatantrata Sainik pension that was earlier provided to her father and mother. On the said request of the petitioner being not entertained, this writ petition is instituted.

5. We have perused the provisions of Rule 10(1) and Rule 10(4) of the Rules of 1988. Rule 10(1) specifically provides that on the death of the Swatantrata Page No.# 4/6

Sainik the pension shall be transferred to his widow giving the meaning that it will be mandatory for the authorities to provide the Swatantrata Sainik pension to the wife of the Swatantrata Sainik who was earlier receiving the pension. But in case of unmarried daughters it is provided that the unmarried daughters may apply to the District authority concerned for grant of such pension and as such, it has to be understood to be a discretion on the part of the State authorities to either transfer the Swatantrata Sainik pension or not to do so and it is not mandatory that the transfer of pension has to be effected to the unmarried daughter. Under the law, whenever there is a discretion vested on an authority, it has to be understood that such discretion has to be exercised in a reasonable and non-arbitrary manner, meaning thereby, that the circumstance existing while exercising the discretion is also required to be given its due consideration.

6. For the purpose, we required the learned State counsel to provide the Court with the information whether any specific guidelines are available as to in what manner the discretion is to be exercised for transferring the Swatantrata Sainik pension to an unmarried daughter of a Swatantrata Sainik. It is stated that no such guidelines are available at present.

7. As no guidelines are available, for the purpose, we take note of the provisions of Assam Services (Pension) Rules 1969 (for short, the Pension Rules of 1969) wherein also certain provisions are available laying down the eligibility and guidelines for payment of family pension of a deceased employee to the unmarried daughter.

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8. In the absence of any guidelines being framed, we are of the view that till such guidelines are framed, the authorities may take recourse to the provisions of the Pension Rules of 1969 to arrive at their conclusion whether the petitioner being the unmarried daughter of a Swatantra Sainik is entitled to Swatantrata Sainik pension by virtue of being the unmarried daughter of a Swatantrata Sainik.

9. It is stated by the respondents that the appropriate authority for taking a decision would be the authorities in the Home and Political Department, Government of Assam. Accordingly, the petitioner may submit a fresh application before the Commissioner and Secretary in the Home and Political Department, Government of Assam who shall examine the claim of the petitioner and pass a reasoned order thereon. In doing so, the Commissioner and Secretary, Home and Political Department shall also take note of the provisions of Rule 10(4) of the Rules of 1988 which also provides that the application of the unmarried daughter of a Swatantrata Sainik is to be supported by requisite certificate showing proof of age, date and cause of death of the Swatantrata Sainik or his widow as well as that the petitioner being the unmarried daughter is the legal heir of the deceased Swatantrata Sainik.

10. While considering the application of the petitioner for Swatantrata Sainik pension, the Commissioner and Secretary shall also examine whether there is any infirmity or disablement in the petitioner to earn a living and if yes, the same may also be taken as a required eligibility for the decision on the requirement to pay Swatantrata Sainik pension to the petitioner.

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11. The above requirement be done within a period of one month from the date of receipt of the application.

12. However, the provisions of this order shall not be a bar on the part of the respondent authorities from framing a specific guideline in respect of transfer of the Swatantrata Sainik Sanman Pension to the unmarried daughters of a Swatantrata Sainik, if otherwise they intend to do so.

13. Writ petition stands disposed of in the above terms.

JUDGE

Comparing Assistant