Gauhati High Court
Kadbhanu Nessa vs The State Of Assam And 7 Ors on 22 February, 2023
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GAHC010042132020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1381/2020
KADBHANU NESSA
(2ND WIFE), S/O LT.ABUL HASEM MONDAL, VILL. ANANDA NAGAR, P.O.
BILASIPARA, DIST. DHUBRI (ASSAM), PIN-783348
VERSUS
THE STATE OF ASSAM AND 7 ORS.
REP BY THE COMMISSIONER AND SECREATRY TO THE GOVT. OF ASSAM,
PENSION AND PUBLIC GRIEVANCES DEPTT. DISPUR, GUWAHATI-781006
2:THE COMMISSIONER AND SECREATRY
TO THE GOVT OF ASSAM
FINANCE (ESTT. A) DEPTT. DISPUR
GUWAHATI-781006
3:THE DIRECTOR OF PENSION
ASSAM
HOUSE FED COMPLEX
DISPUR
GUWAHATI-781006
4:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-781019
5:THE DISTRICT ELEMENTARY EDUCATION OFFICER
GOALPARA
6:THE DEPUTY INSPECTOR OF SCHOOLS
GOALPARA
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7:THE TREASURY OFFICER
GOALPARA
8:RABIA KHATUN (1ST WIFE)
W/O LT. ABUL HASHEM MONDAL
VILL. SAGUNMARI PT-III
P.O. KADOMTOLA
DIST. DHUBRI
ASSAM
PIN-78334
Advocate for the Petitioner : MR. N AHMED
Advocate for the Respondent : SC, ELEM. EDU
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
22.02.2023
Heard Mr. R. A. Ahmed, the learned counsel for the petitioner and
Mr. P. Saikia, the learned counsel appearing on behalf of the respondent
Nos.1 & 3. Also heard Mr. R. Borpujari, the learned counsel appearing on
behalf of the respondent Nos.2 & 7; Mr. N. J. Khataniar, the learned
counsel appearing on behalf of the respondent Nos.4, 5 & 6 as well as Mr.
M. H. Choudhury, the learned counsel appearing on behalf of the
respondent No.8.
2. The case of the petitioner herein in brief is that the petitioner is the
second wife of Late Abdul Hashem Mondal. On the ground that the
respondent No.8, in spite of having entered into an agreement with the
petitioner, has not paid 50% of the family pension, the petitioner has
approached this Court by filing the instant writ petition.
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3. The learned counsel for the petitioner however submitted that in
view of the judgment of the Full Bench in the case of Mustt. Junufa Bibi
vs. Mustt. Padma Begum @ Padma Bibi and Others , reported in 2022
OnLine Gau 2000 and more particularly in view of the paragraph Nos.22 &
23 of the judgment, he would not like to press the instant writ petition
and would resort to the remedies as available in view of the judgment of
the Full Bench. This Court finds it appropriate at this stage to take into
account the paragraph Nos. 22 & 23 of the said judgment which are
reproduced herein below:-
"22. We further hold 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.
23. We also provide that in the event any such other persons who are
entitled to the benefits of the family pension in terms of Rule 143 of the
Pension Rules of 1969, including the second or further wives, in a case
where the parties are governed by the Mohammedan Law, are not
appropriately maintained by the eldest of the surviving widow or wife to
whom the pension would be paid, the remedy thereof would be to make
a claim for maintenance in the appropriate forum under the law and not
a claim for a payment of the family pension by the State authorities
directly to such persons. But however, if in a given case the State
authorities on their own volition are of the view that under an acceptable
circumstance the authorities are agreeable or required to pay the
pension separately to any such member of a family of a deceased
employee, this judgment may not be construed to be an absolute bar on
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such separate payment."
4. A perusal of the above quoted paragraphs would show that it is the
eldest widow who would be entitled to family pension in terms with Rule
143 of the Assam Services (Pension) Rules, 1969 and in absence of the
eldest widow, the second and further widow would also be entitled to if
the parties are governed by the Mohammedan Law. It further appears that
as per the decision of the Full Bench, the entire family pension so payable
to the eldest of the surviving widow would not be her personal property
and the eldest of the surviving widow would be entitled to receive the
family pension 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. The Full Bench has further clarified that if in the case
where the second or further widows are not appropriately maintained by
the eldest of the surviving widow to whom the pension would be paid, the
remedy thereof would be to make a claim for maintenance in the
appropriate forum under the law and not a claim for a payment of the
family pension by the State authorities directly to such persons.
5. Under such circumstances, the instant writ petition would not be
maintainable. Taking into account the same, the learned counsel for the
petitioner therefore has rightly submitted that he would like to withdraw
the writ petition and to avail the remedies available to the petitioner in the
appropriate forum.
6. Accordingly, this Court therefore permits the withdrawal and grants
liberty to the petitioner to avail such remedies as available under the law.
7. This Court further grants liberty to the petitioner to approach the
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respondent authorities by bringing to the notice of the respondent
authorities the agreement entered into between the petitioner and the
respondent No.8. In such case, the respondent authorities would be at
liberty to take such appropriate action as mentioned in paragraph No. 23
of the above quoted judgment, if deemed fit.
8. In view of the above observation and direction, the instant writ
petition stands dismissed on withdrawal.
JUDGE
Comparing Assistant
