Gauhati High Court
Marjina Khatun vs The State Of Assam And 8 Ors on 22 May, 2023
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GAHC010262902022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6819/2021
MARJINA KHATUN
W/O. LT. AHED ALI
VILL. BAMUNIRVITA
P.O. JALESWAR
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM
PIN-783132.
VERSUS
THE STATE OF ASSAM AND 8 ORS
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
EDUCATION (ELEMENTARY) DEPTT.
DISPUR
GUWAHATI-06.
2:THE DIRECTOR OF PENSION
ASSAM
HOUSEFED COMPLEX
DISPUR
GUWAHATI-06.
3:THE ACCOUNTANT GENERAL (A AND E)
ASSAM
MAIDAMGAON
BELTOLA
GUWAHATI-29.
4:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
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GUWAHATI-19.
5:THE DEPUTY COMMISSIONER
GOALPARA
ASSAM
PIN-783101.
6:THE DIST. ELEMENTARY EDUCATION OFFICER
GOALPARA
P.O.
P.S. AND DIST. GOALPARA
ASSAM
PIN-783101.
7:THE TREASURY OFFICER
GOALPARA
P.O. AND P.S. GOALPARA
DIST. GOALPARA
ASSAM
PIN-783101.
8:THE BRANCH MANAGER
UCO BANK
JALESWAR BRANCH
JALESWAR
P.O. JALESWAR
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM
PIN-783132.
9:AMINA KHATUN
W/O. LT. AHED ALI
VILL. BAMUNIRVITA
P.O. JALESWAR
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM
PIN-783132.
------------
Advocate for : MR. A F N U MOLLAH
Advocate for : SC
ELEM. EDU appearing for THE STATE OF ASSAM AND 8 ORS
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BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 22.05.2023
Heard Mr. H. R. A. Choudhury, the learned Senior counsel assisted by Mr.
A.F.N.U. Mollah, the learned counsel appearing on behalf of the petitioner and
Mr. P. N. Sharma, the learned Standing counsel appearing on behalf of the
respondent Nos. 1, 4 and 6. I have also heard Mr. S. R. Baruah, the learned
Standing counsel appearing on behalf of the respondent Nos. 2 and 5; Ms. J.
Das, the learned Standing counsel appearing on behalf of the respondent No. 3;
Mr. R. Borpujari, the learned Standing counsel appearing on behalf of the
respondent No.7; and Mr. M. Ali, the learned counsel appearing on behalf of the
respondent No.9.
2. The case of the petitioner herein is that the petitioner is the first wife of
Late Ahed Ali who expired on 08.09.2021. Being the first wife, the petitioner
claims to be entitled to the family pension in terms with Rule 143(ii) of the
Assam Services (Pension) Rules, 1969 (for short the "Rules of 1969").
3. Mr. H. R. A. Choudhury, the learned Senior counsel has drawn the attention
of this Court to Note-1 of Rule 143(ii) of the Rules of 1969 which specifically
stipulates that when there are two or more widows, pension will be payable to
the eldest surviving widow and it is only on the death, it will be payable to the
next surviving widow, if any. The learned Senior counsel for the petitioner has
also drawn the attention of the judgment of the Full Bench in the case of Mustt.
Junufa Bibi Vs. Mustt Padma Begum and Others reported in 2022 SCC Online Gau
2000 wherein Full Bench of this Court had categorically held that the eldest of
the surviving widow would be entitled to the pension and it is only upon the
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death of the eldest of them, the surviving widow would be entitled to.
4. On the other hand, Mr. M. Ali, the learned counsel appearing on behalf of
the respondent No.9 submits that the petitioner has already been divorced and
as such the petitioner is not entitled to the family pension. It is the respondent
No.9 who would be entitled to and as such recently the authorities concerned
after taking note of every aspect have issued the PPO in favour of the
respondent No.9. He further submitted that the husband of the respondent No.9
during his lifetime had nominated the respondent No.9.
5. Upon hearing the learned counsels for the parties, an issue arose as to
whether a nomination would override the mandate of Rule 143(ii) of the Rules
of 1969. The learned Standing counsel appearing on behalf of the Director of
Pension is directed to file an affidavit to clarify the said aspect of the matter
which he shall do by 23.06.2023 without fail.
6. In order to accept the submission of the Respondent No.9, about the
divorce between the petitioner and the husband of the respondent No.9, the
respondent No.9, if so advised would be at liberty to file affidavit-in-opposition.
7. Accordingly, let the matter be listed on 28.06.2023.
JUDGE
Comparing Assistant
