Page No.# 1/6 vs The State Of Assam And 4 Ors
2025 Latest Caselaw 3743 Gua

Gauhati High Court

Page No.# 1/6 vs The State Of Assam And 4 Ors on 5 March, 2025

Author: Michael Zothankhuma

Bench: Michael Zothankhuma

                                                                 Page No.# 1/6

GAHC010176812024




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

                          Case No. : WP(C)/4442/2024

         RAMISHA BEGUM AND ANR
         WIFE OF LATE ABDUR RAZZAK MIAH, VILLAGE- TUKRAPARA, P.O.-
         TUKRAPARA AND P.S. CHAYYGAON, DIST.- KAMRUP, ASSAM, PIN- 781137

         2: RUPBHANU BEGUM
         WIFE OF LATE ABDUR RAZZAK MIAH
         VILLAGE- TUKRAPARA
          P.O.- TUKRAPARA AND P.S. CHAYYGAON
          DIST.- KAMRUP
         ASSAM
          PIN- 78113

         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM,
         SECONDARY EDUCATION, ASSAM, DISPUR, GUWAHATI- 781006

         2:THE SECRETARY TO THE GOVT. OF ASSAM
          PENSION AND PUBLIC GRIEVANCES DEPARTMENT
          DISPUR
          GUWAHATI- 781006

         3:THE ACCOUNTANT GENERAL (A AND E)
         ASSAM
          MAIDAMGAON
          BELTOLA
          GUWAHATI- 781029

         4:THE DIRECTOR OF PENSION
         ASSAM
          HOUSE FED
          DISPUR
          GUWAHATI- 781006
                                                                           Page No.# 2/6


             5:THE INSPECTOR OF SCHOOLS
              KAMRUP DISTRICT CIRCLE
             AMINGAON
              DIST. KAMRUP
             ASSA

Advocate for the Petitioner   : MR. A M AHMED, P. GHOSH,MRS S RAHANA,B DAS

Advocate for the Respondent : SC, SEC. EDU., SC, AG (A AND E),GA, ASSAM




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                         ORDER

05.03.2025

1. Heard Mr. A.M. Ahmed, learned counsel for the petitioners and Mr. B. Kaushik, learned counsel for the respondent nos.1 & 5. Mr. G. Pegu, learned counsel appears for the respondent no.2, while Ms. A. Sarma, learned counsel appears on behalf of Mr. B. Chakraborty, learned counsel for the respondent no.3.

2. The two petitioners claim to be the wives of Late Abdur Razaak Miah, who retired as an Assistant Teacher from Gumi High School, Kamrup District Circle, Amingaon, Assam, on 31.10.2017. However, the petitioners' husband expired on 10.12.2023 and though the petitioners had applied for grant of family pension, the same has not been disbursed to them till date.

3. The counsel for the petitioners submits that the petitioner no.1 is the first wife of the Late Abdur Razaak Miah, while the petitioner no.2 is the second wife.

Page No.# 3/6

The petitioners' counsel further submits that a joint affidavit has been sworn by the two petitioners, stating that they are governed by Mohammedan Law and have made a mutual settlement to the effect that they would submit applications for grant of separate family pensions.

4. The petitioners' counsel submits that the petitioners being the wives of the late Government servant, an appropriate direction should be issued to release the family pension to the petitioners.

5. The counsels for the respondents submit that in terms of the Full Bench judgment of this Court in the case of Mustt Junufa Bibi vs. Mustt Padma Begum @ Padma Bibi & 4 Others, WA 160/2018, only the eldest and first wife of the late Government servant would be entitled to be granted family pension. However, it would be the duty of the eldest and first wife of the late Government servant to maintain the second wife or more wives of the late Government servant. They also submit that a verification would have to be conducted, so as to identify whether the petitioners are the wives of the late Government servant and as to whether there are some more other wives of the late Government servant.

6. I have heard the learned counsels for the parties.

7. The Full Bench of this Court in it's judgment and order dated 22.12.2022 passed in Mustt Junufa Bibi vs. Mustt Padma Begum @ Padma Bibi & Others, WA 160/2018, has held that in terms of the provisions of the Assam Services Page No.# 4/6

(Pension) Rules 1969 (hereinafter referred to as the "1969 Rules"), the family pension would be payable to the eldest of the surviving widows in the event of there being two or more widows and on her death, to the next surviving widow. The Full Bench also held that family pension being payable to the eldest of the surviving widow would not mean that the entire family pension so payable, would be the personal property of the eldest of the surviving widows. The family pension payable to the eldest surviving widow would be as a trust for all such other persons, who are entitled to the benefits of family pension in terms of the 1969 Rules.

8. Paragraph nos.19, 20, 21, 22 & 23 of the judgment and order dated 22.12.2022 passed in WA 160/2018 is reproduced hereinbelow, as follows :

"19. A conjoint reading of Note 1 to Rule 143 (ii) and Rule 143 (iii) of the Pension Rules of 1969 makes it explicit and unambiguous that the family pension would be payable to the eldest of the surviving widow in the event of there being two or more widows and further that even if there are minor children who may also be entitled to the benefits of the family pension, the pension would be paid to only one member of the family at the same time, where at first instance it would be paid to the eldest of the surviving widow and thereafter, on her death to the next surviving widow, if any and in its absence to the minor children.

20. As a corollary to the provisions of the Rule 143 (iii) of the Pension Rules of 1969, Note 1 to Rule 143 (ii) would have to be read to mean that the family pension would be payable to the eldest of the surviving widows in the event there are two or more widows, and thereafter, on her death it would be payable to the next surviving widow, if any and thereafter, to the minor children if the occasion arises.

21. In the circumstance, the concept of a validity and acceptability of a second marriage where the parties are governed by the Mohammedan Law and Page No.# 5/6

the consequential entitlement to the benefits of a family pension and the concept to whom the family pension would be payable under the Pension Rules of 1969 are held to be two separate and unrelated concepts and the implication of the concept of a validity and acceptability of a second marriage or further marriages where the parties are governed by the Mohammedan Law would have no bearing on the concept to whom the family pension is payable under the Pension Rules of 1969. It is held that irrespective of the validity and acceptability of a second marriage or further marriages where the parties are governed by the Mohammedan Law, the family pension under Rule 143 of the Pension Rules of 1969 would be payable to the eldest of the surviving widow, which would also be applicable for a family pension where the parties are governed by the principles of Mohammedan Law, and where there may be a validity and acceptability of the second wife or further wives in respect of a deceased Mohammedan employee.

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 such separate Page No.# 6/6

payment."

9. In view of the Full Bench judgment of this Court as mentioned and quoted above, the State respondents shall conduct a verification, as to who is the eldest surviving wife of the Late Abdur Razzak Miah and thereafter grant family pension to the eldest surviving widow. The eldest surviving widow should thereafter ensure that she maintains the other surviving widows, if any, in terms of the judgment and order dated 22.12.2022 passed in WA 160/2018. The exercise for verifying whether the petitioners are entitled to the grant of family pension and the consequential payment of the family pension, should be concluded within a period of 2 (two) months from the date of receipt of a certified copy of this order.

10. The writ petition is accordingly allowed.

JUDGE

Comparing Assistant