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2012 DIGILAW 772 (GAU)

Hajera Begum v. State of Tripura

2012-06-21

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. Whether a second wife is not at all entitled to receive appointment, under the relevant Scheme of die-in-harness, in the State of Tripura, is the moot question, which this writ petition has raised. I have heard Mr. A. Sengupta, learned counsel for the writ petitioner, and Mr. B. Dutta, learned Government counsel, appearing on behalf of the State respondents. I have also heard Mr. A.K. Bhowmik, learned Senior counsel, appearing as amicus curiae in this case. 2. The petitioner's husband, late Maharam Ali, entered into service as Grade-D employee, in the year 1983, in the Department of Education, Government of Tripura, when he was already married. Maharam Ali married the present writ petitioner, as his second wife, in the year 1989. While in service, Maharam Ali died on 20.10.2007. Shortly after the death of Maharam Ali, requisite application was made by the present petitioner seeking appointment under the State Government's die-in-harness Scheme. As the petitioner's said application, seeking appointment, has not yielded any fruitful result, the petitioner has approached this Court with the help of this writ petition, made under Article 226 of the Constitution of India, seeking appropriate direction(s) to the respondents to provide her with a suitable appointment under the die-in-harness Scheme of the State Government. 3. While considering the present writ petition, claiming appointment under the die-in-harness Scheme, it is apposite to take note two of the essential conditions and/or the eligibility criteria of an applicant seeking appointment under the said Scheme. To receive appointment under the Scheme of die-in-harness, an applicant must be, other-wise, eligible for Government appointment. Besides this, the eligibility criteria of the applicant have to be determined on the date of the death of the person, whose death gives rise to a right to apply for employment under the Scheme of die-in-harness. 4. In the present case, on the day of Maharam Ali's death, the petitioner was the only eligible person, in the family of the said deceased, to apply for appointment under the said Scheme. Requisite No Objection Certificates, as required under the Scheme, were also furnished to the writ petitioner by the other members of the family of the said deceased so as to enable the petitioner apply for appointment. 5. Requisite No Objection Certificates, as required under the Scheme, were also furnished to the writ petitioner by the other members of the family of the said deceased so as to enable the petitioner apply for appointment. 5. In fact, the name of the petitioner, as the second wife of Maharam Ali, had been entered into the Service Book of her husband, as far back as in the year 1989, and, since the death of her husband, the writ petitioner has been receiving pension along with the first wife of the said deceased, 50% of the pension amount being given to the first wife and the remaining 50% being received by the present petitioner as second wife of the said deceased. 6. It is, now, worth noticing that during the life-time of the petitioner's husband, no proceeding was drawn for breach of Rule 21 of Tripura Conduct Rules (hereinafter referred to as the 'Conduct Rules'), which put restrictions on marriage of Government employees inasmuch as a Government employee, under Rule 21 of the Conduct Rules, is, ordinarily, not allowed to enter into, or contract, marriage with person having a spouse living, though the Government may permit such a Government employee to enter into, or contract, any such marriage if the Government is satisfied that such marriage is permissible under the Personal Law applicable to the Government employee concerned and the other party to the marriage; and when there are other grounds for so doing. Rule 21 of Tripura Conduct Rules read as under 21. Restriction regarding marriage.- (1) No Government employee shall enter into, or contract, marriage with a person having a spouse living; and (2) No Government employee having a spouse living, shall enter into, or contract, a marriage with any person; Provided that the Government may permit a Government employee to enter into, or contract, any such marriage as is referred to in Clause (1) or Clause (2) if it is satisfied that- (a) Such marriage is permissible under the personal law applicable to such Government employee and the other party to the marriage; and (b) there are other grounds for so doing; (3) A Government employee, who has married or manages a person of other than of Indian nationality shall forthwith intimate the fact to the Government. 7. 7. Though there is nothing on record to show that the petitioner's husband had obtained necessary permission, as required by the Conduct Rules, in order to marry the petitioner as his second wife, the fact remains that, as the present petitioner's name had been entered into the Service Book of her husband, during his life-time, as his second wife, the Government must be treated to have acquiesced to his second marriage, because the Government had the discretion to grant or not to grant such a permission. In other words, when the Government allowed the name of the present petitioner to be entered into the Service Book of the said deceased, the Government must, be inferred to have allowed the said deceased to marry the present petitioner, as his 'second wife', because, the Personal Law of the said deceased as well as of the present petitioner did permit such a marriage. This apart, when a suit was instituted by the present petitioner, in the civil Court of competent jurisdiction, seeking declaration of her status as legally wedded wife of the said Maharam Ali and, in the said suit, though the Government was a party, the suit had not been resisted by the Government on the ground of breach of the conduct rules by the said Maharam Ali. All these facts, when consider together in their correct perspective, give rise to only one inference, the inference being that the Government had having acquiesced to the marriage of the said deceased with the present petitioner, in effect, permitted the marriage to take place and treated, at all points of time, during the life-time of the said deceased, the marriage, which had token place between the petitioner and the said deceased as valid marriage. 8. It is, therefore, contended by Mr. A.K. Bhowmik, learned Senior counsel, who has appeared as amicus curiae, that the petitioner, under the relevant Scheme, is entitled for the reliefs, which the Scheme, in question, provides to her. 9. Appearing on behalf of the State Government, Mr. B. Dutta, learned counsel, resisted the writ petition by contending that the writ petitioner's marriage with the said deceased was in breach of the Conduct Rules and, hence, the petitioner is not entitled to the benefit of the Scheme, in question. 9. Appearing on behalf of the State Government, Mr. B. Dutta, learned counsel, resisted the writ petition by contending that the writ petitioner's marriage with the said deceased was in breach of the Conduct Rules and, hence, the petitioner is not entitled to the benefit of the Scheme, in question. To a query, however, raised by this Court as to why the State Government had not taken such a plea, in the said Title Suit, which the present petitioner had filed, the learned Government counsel had no answer. To the question, raised by the Court, as to why Government had allowed the name of the present petitioner to be entered, in the service book of the said deceased, as the wife of the said deceased, Mr. Dutta has, once again, no answer. 10. Mr. B. Dutta, learned Government counsel, merely insists that under Rule 21 of the said Conduct Rules, the Government has discretion not to allow a person to marry even if his personal law allows him to marry for the second time. Though this proposition cannot be in dispute, the conduct of the Government, as pointed out by Mr. Bhowmik, shows that the Government did acquiesce to the second marriage of the deceased Maharam Ali and, therefore, the discretion, vested in the Government under Rule 21, shall be deemed to have been exercised in favour of the marriage of the petitioner's husband with the petitioner. 11. Situated thus, there can be no escape from the conclusion that in the facts and attending circumstances of the present case, the fact that the petitioner was the second wife of Late Maharam Ali did not disentitle her from receiving the benefit under the die-in-harness Scheme and that the respondents have acted, arbitrarily and illegally, in denying to the petitioner the benefit of the said Scheme. 12. In the result and for the reasons discussed above, this writ petition succeeds. The respondents are hereby directed to do the needful in accordance with the said Scheme so as to enable the petitioner receive appointment. 13. Before parting with the writ petition, it is, however, made clear that this case shall not be referred to, and relied upon, as a precedent inasmuch as this case has been decided in the context of the facts of the present case. 14. With the above observations and directions, this writ petition stands disposed of. 13. Before parting with the writ petition, it is, however, made clear that this case shall not be referred to, and relied upon, as a precedent inasmuch as this case has been decided in the context of the facts of the present case. 14. With the above observations and directions, this writ petition stands disposed of. No order as to costs.