JUDGMENT Ashim Kumar Roy, J. The writ petitioner claiming herself to be the legally married wife of Rama Kanta Mishra, the respondent no. 4, who was working as a Library Attendant in Gobra Indranarayan Keshtra Mohan High School and retired from his service in the year 2009, has come out with a case that while retiring from service, her husband, in terms of the West Bengal Recognized Non-Government Educational Institution Employees (Death-cum-Retirement Benefit) Scheme, 1981, has submitted pension papers, but most dishonestly naming the respondent no. 5 as his nominee and excluding her. It is her further case at once she came to learn about the aforesaid facts, she approached the concerned District Inspector of School for inclusion of her name in the records as the legal heirs of her husband, the respondent no. 4 removing the name of respondent no. 5, so that she be entitled to the family pension, however, no action has yet been taken by the respondent authority. 2. The learned counsel for the petitioner, after reiterating her case noted herein above, invited the attention of this court to the Form of application for family pension prescribed in terms of paragraph 23 and Form for pension and gratuity in terms of paragraph 31 of the West Bengal Recognized Non-Government Educational Institution Employees (Death-cum-Retirement Benefit) Scheme, 1981. He then contended that the respondent no. 5 cannot be nominated as the person eligible for family pension, since the respondent no. 4, a Hindu male, illegally married the respondent no. 5 during the subsistence of his first marriage with the writ petitioner and when his first wife, the writ petitioner is still alive. It is further contended not only that the respondent no. 5 has no legal status, she not being a family member of the pension ner is also not entitled to any benefit of family pension in terms of the West Bengal Recognized Non-Government Educational Institution Employees (Death-cum-Retirement Benefit) Scheme, 1981. It is, therefore, urged the respondent authority at once be directed to remove the name of the respondent no. 5 from the records relating to pension and incorporate the writ petitioner in her place. 3. On the other hand, on behalf of the respondent no. 4, affidavit in opposition is used and it is categorically denied that he had any relation with the respondent no. 5 and nominated her as alleged. 5 from the records relating to pension and incorporate the writ petitioner in her place. 3. On the other hand, on behalf of the respondent no. 4, affidavit in opposition is used and it is categorically denied that he had any relation with the respondent no. 5 and nominated her as alleged. It is then submitted since the writ petitioner has abandoned the respondent no. 4 and his child long back and living an adulterous life with another person, he has nominated his son Ambarish Mishra as his legal heir in terms of the regulation 22. It is then vehemently urged that the respondent no. 4 has every legal right to nominate anyone as his legal heirs according to his own choice and can also deprive his legally married wife from such right where she abandoned her and living an adulterous life. 4. Heard the learned counsel appearing on behalf of the parties and perused the materials on record and the relevant provisions of law. 5. Now, before adverting to the rival submissions of the parties, in my opinion, it would be apposite to refer the relevant provisions of the West Bengal Recognized Non-Government Educational Institution Employees (Death-cum-Retirement Benefit) Scheme, 1981, on which reliance has been placed from the side of the parties. The same are quoted below:- "Appendix-III (Application for family pension) Claimants for family pension under paragraph 23 of the Scheme shall submit application to the pension sanctioning authority in form prescribed in Part I below immediately after the death of the employee/pensioner along with following documents, namely: 1. Death certificate, 2. Two copies of passport size photograph duly attested by a gazetted officer, 3. Gardianship certificate where pension is admissible to the minor children. PART I Form of application Application for a family pension for the family of late Shri/Smt ........................................in the (designation) 1. Name of the applicant .............................. 2. Relationship to the employee/pensioner.................... 3. Date of death of the employee/pensioner................. 4. Date of retirement, if the deceased was a pensioner..... 5. Name and age of surviving kindred of the deceased...... Widow/widower name date of birth (by Christian era) Sons Unmarried daughters Parents. 6. Name of Treasury/Sub-Treasury/Nationalised Bank at which payment is desired.................................... 7. Signature or left hand thumb impression (in the case of those who are not literate enough to sign their name) 8. Descriptive roll of ......... widow/widower/guardian of the minor children/parents of late............ Widow/widower name date of birth (by Christian era) Sons Unmarried daughters Parents. 6. Name of Treasury/Sub-Treasury/Nationalised Bank at which payment is desired.................................... 7. Signature or left hand thumb impression (in the case of those who are not literate enough to sign their name) 8. Descriptive roll of ......... widow/widower/guardian of the minor children/parents of late............ (i) Date of birth (by Christian era).................... (ii) Height............................. (iii) Personal marks, if any, on hand or face........... (iv) Left hand thumb and finger impression: Small finger Ring finger Middle finger thumb Index finger Attested by- Witnesses- (1) .......................... (1)................................ (2) ......................... (2).............................. Note: The descriptive roll (Column 8) and signature or left hand thumb and finger impressions accompanying application for family pension should be in duplicate (in two separate sheets and attested by two gazetted officers or persons of respectability in the town, village or pargana in which the applicant). and Appendix v First Page (See Paragraph 31 of the Scheme) Form for pension and gratuity "1. Name of employee: 2. Father's name (and also husband's name in the case of a woman employee): 3. Religion and Nationality: 4. Permanent residential address showing village/town, district and State: 5. Present or last appointment, including name of: (a) Substantive: (b) Officiating, if any: 6. Class of pension or gratuity applied for and cause of application: 7. Institutions under which service has been rendered (in order of employment): (a) Period of service as an employee: (b) Period of war/military service: (c) Amount and nature of any pension/gratuity received for military service: (d) Amount and nature of any pension/gratuity received for military service: 8. (a) Average emoluments: (c) Emoluments for gratuity: 9. Pay as defined in paragraph 5(p) of West Bengal Non-Government Educational Institutions Employees (Death-cum-Retirement Benefit) Scheme, 1981: 10. Proposed pension: 11. Proposed gratuity: 12. Whether the Family Pension Rule is applicable, if so amount of life time family pension becoming payable to the entitled members of the family of the employee in the e vent of his/her death: 13. Date from which pension is to commence: 14. Place of payment of- (a) Pension (Treasury/Sub-Treasury/Nationalised Bank): (b) Gratuity (Treasury/Sub-Treasury/Natioinalisied Bank): 15. Whether nomination made for- (a) Family Pension, if applicable: (b) Death-cum-Retirement Gratuity: 16. Whether employee has paid all the employer's dues: 17. Date of recognition of the Institution: (a) Date of recognition: 18. Date of approval of appointment: 19. Date from which pension is to commence: 14. Place of payment of- (a) Pension (Treasury/Sub-Treasury/Nationalised Bank): (b) Gratuity (Treasury/Sub-Treasury/Natioinalisied Bank): 15. Whether nomination made for- (a) Family Pension, if applicable: (b) Death-cum-Retirement Gratuity: 16. Whether employee has paid all the employer's dues: 17. Date of recognition of the Institution: (a) Date of recognition: 18. Date of approval of appointment: 19. Date of birth by Christian era if- (a) Employee: (b) Employee's wife/husband: 20. Height : 21. Identification marks: 22. Thumb and finger impressions/Signature: Thumb Fore finger Middle finger Ring finger Little finger (a) of employee: (b) of employee's wife/husband: 23. Date on which the employee applied for pension in form prescribed in Appendix IV: ........................................... Signature of the Appointing Authority Pensions who are literate enough to sign their names in English, Hindu or the official religion language, are exempted from recording their left hand thumb and finger impressions provided they furnish certified copies of passport size photographs." Regulation 22 - Nomination (1) Any employee to whom this scheme applies may, provided he has completed five years' qualifying service, make a nomination in writing in the prescribed form shown in Appendix II conferring on one or more persons the right to receive the death gratuity that may be sanctioned under paragraph 21 and also the gratuity that may be payable under the same paragraph. Provided that if, at the time of making nomination the employee has a family, the nomination shall not be in favour of any person or persons other than the members of his family. (2) If an employee nominates more than one person under sub-paragraph (1), he shall specify in the nomination the amount of share payable to each of the nominees in such manner as to cover the whole amount of the gratuity. (3) An employee may provide in a nomination--- (a) That in respect of any specified nominee, in the event of his/her predeceasing the employee the right conferred upon that nominee shall pass to such other member of the employee's family as may be specified in the nomination; and (b) That the nomination shall become invalid in the event of the happening a contingency specified therein. (4) The nomination made by an employee who has no family shall become invalid on his subsequently acquiring a family. (4) The nomination made by an employee who has no family shall become invalid on his subsequently acquiring a family. (5) Every nomination shall be in such one of Forms A to D in Appendix II as may be approved in the circumstances of the case. (6) An employee may at any time cancel a nomination by sending a notice in writing and the employee shall along with such notice send a fresh nomination made in accordance with this Scheme. (7) Immediately on the death of a nominee in respect of whom no special provision has been made in the nomination under clause (a) of sub-paragraph (3) or on the occurrence of any event by reason of which the nomination becomes invalid in pursuance of clause (b) of that sub- paragraph or sub-paragraph (4), the employee shall send a notice in writing formally cancelling the nomination, together with a fresh nomination made in accordance with this paragraph. (8) Every nomination made, and every notice of cancellation given, by an employee under this paragraph shall be sent to, the appointing authority or Head of the Institution/Organisation as the case may be, who shall, immediately on receipt of a nomination, countersign it indicating the date of receipt and get the same pasted in the Service Book. (9) Every nomination made, and every notice of cancellation given by an employee, shall, to the extent that it is valid, take effect on the date on which it is received by the authority mentioned in Sub-paragraph (8). 6. Now, having gone through the aforesaid Form provided under Appendix-III, I find the same is merely a format of application for family pension, in which in the event of death of the pensioner/employee, his family members has to apply for family pension. Since, in the case in hand, the employee/pensioner is still alive, the said Form has no way relevant for adjudicating the present controversy. Now, coming to the Form provided under the Appendix-V, I find the same is a Form for pension and gratuity and such Form is to be submitted by the appointing authority where, in fact, the employee/pensioner has no role to play. In this regard, the learned counsel for the writ petitioner drew the attention of this court to what has been noted against column no. 12. In this regard, the learned counsel for the writ petitioner drew the attention of this court to what has been noted against column no. 12. Having regard to the same, it is very much clear if the family pension rule is applicable the amount of life time family pension shall be payable to the entitled members of the family of the employee in the event of his/her death. While the first Form was prescribed under paragraph 23 the next Form is prescribed under paragraph 31 of the West Bengal Recognized Non-Government Educational Institution Employees (Death-cum-Retirement Benefit) Scheme, 1981. 7. However, the scheme simultaneously in paragraph 28 clearly provides after the death of the employee/pensioner how the family pension shall be disbursed. The provisions of paragraph 28 is quoted below:- Pension payable to one member of the family -Subject to the provision contained in the note under paragraph 26, the pension awarded under this scheme shall not be payable to more than one member of the employee's family at the same time. It shall first be admissible to the widow (s)/widower and then to the first eldest minor son, thereafter next minor sons according to seniority and when there will be no minor son, eldest minor daughter and so on and thereafter to mother and lastly to father. Payments to minor will be made through natural legal guardian. According to the provisions of paragraph 23 of the said scheme, the benefit of the family pension is also extended to the family members of the employee, in case of his death after retirement, if he was in receipt of retiring or superannuation, pension or gratuity. The paragraph 26 has stipulated the conditions subject to which the family pension is admissible. Whereas paragraph 28 provides after the death of the employee/pensioner in what order the family pension will be admissible to the members of his family subject to certain conditions. Since the manner in which the family pension shall be disbursed is covered by the regulation, no choice of the employee/pensioner has any bearing. The said provision has left no scope for any nomination. The writ petitioner has not able to make out any case which call for any interference. However, the regulation 22 has no manner of application in case of family pension after the death of the employee/pensioner and the same relates to nomination in respect of death gratuity. The said provision has left no scope for any nomination. The writ petitioner has not able to make out any case which call for any interference. However, the regulation 22 has no manner of application in case of family pension after the death of the employee/pensioner and the same relates to nomination in respect of death gratuity. This writ application has no merit and accordingly stands dismissed. It is made clear, in this judgment the court has not gone into the merit of the claim of the family pension of the writ petitioner in preference to the claim of other family members of the respondent no. 4 and such claim ought to be decided in accordance with the provisions of West Bengal Recognized Non-Government Educational Institution Employees (Death-Retirement Benefit) Scheme, 1981 referred herein above, if situation so arises.