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2018 DIGILAW 1299 (GAU)

Bobita Saikia Deka v. State of Assam

2018-09-03

M.R.PATHAK

body2018
ORDER : M.R. PATHAK, J. 1. Heard Dr. B N Gogoi, learned counsel for the petitioner and Mr. A Deka, learned Standing counsel, Education Department for respondent Nos. 1 and 2. Also heard Mr. R K Talukdar, learned counsel for the respondent No. 3, Mr. P Nayak, learned Standing counsel, Finance Department for the respondent No. 4 and Mr. R M Deka, learned counsel for the private respondent No. 5. 2. Matter relates to disbursal of Family Pension and other death benefits to the petitioner on the death of her husband a Government employee who served as a Driver in the Office of the Director of Elementary Education, Assam and died in harness. 3. The petitioner contended that she is the second wife of the deceased who served as Driver in the Office of the Director of Elementary Education, Assam, expired on 15.12.13 while in service. It is stated that marriage between petitioner and her said late husband was solemnized in the year 2000 as per Hindu rites and from their wedlock a male child was born to them who is a minor. After her marriage, petitioner came to know that her husband earlier married to respondent No. 5 and from their said conjugal life they have one daughter, who is already married and two sons who are already major and the respondent No. 5 is well settled as she learnt that said respondent is serving in the Assam Civil Secretariat. Petitioner also stated that during his life time of her said husband sworn an affidavit disowning the respondent No. 5 and her two sons and specifying that they would have no right to claim his movable and immovable properties and also notified it by publishing the same in leading news paper. 4. The petitioner stated that vide No. 2014/2976 dated 06.03.2014, the Deputy Commissioner, Kamrup (Metro) has already issued 'Certificate of Next of Kin' showing her and their minor son as the Next of Kin of her late husband. Petitioner also stated that in Debts Succession Case No. 75/2014, learned District Judge, Kamrup (Metro), Guwahati on 04.08.2014 have already issued Succession Certificate under Section 372 of the Indian Succession Act, 1925 in her favour including Group Insurance, Gratuity, Leave Encashment, Arrear Salary, Arrear Family pension and GPF amount of her late husband. 5. Petitioner also stated that in Debts Succession Case No. 75/2014, learned District Judge, Kamrup (Metro), Guwahati on 04.08.2014 have already issued Succession Certificate under Section 372 of the Indian Succession Act, 1925 in her favour including Group Insurance, Gratuity, Leave Encashment, Arrear Salary, Arrear Family pension and GPF amount of her late husband. 5. Petitioner with her husband lived in the Quarter No. 6, Block-E, Elementary Education Quarter's Complex, Kahilipara, Guwahati-19 and as she continued to occupy the said Quarter even after three years of death of her husband on 15.12.2017, the Director of Elementary Education on 3rd June, 2017 issued Last and Final Notice to her granting ten days time to vacate the said Quarter informing that failure on her part to comply with the direction made therein, the same will be treated as serious offence and consequential actions would be taken as per Government rules and procedure. 6. At that stage the petitioner has filed this writ petition on 23.06.2017 praying for issuance of writ of Mandamus directing respondents not to evict her from the said residential quarter of Elementary Education Department and to release Family pension and all death benefits in her favour and her minor son. 7. While issuing notice to the respondents, this Court by order dated 21.07.2017 rejected the prayer of the petitioner allowing her to retain the Government Quarter allotted to Bhubneswar Deka, late Driver in the Office of the Director of Elementary Education, Assam, Guwahati and did not interfere with the direction notice dated 03.06.2017 issued by the Director of Elementary Education, Assam and directed the petitioner to vacate the said Quarter within six weeks from the date of said order. 8. On instruction, Dr. B N Gogoi learned Counsel on 21.07.2017 submitted that the petitioner being the second wife of said Bhubneswar Deka, late Driver in the Office of the DEE, Assam, is not claiming any relief or share of the family pension vis-à-vis the respondent No. 5, first wife of said Bhubneswar Deka, but she is pressing this case only for her minor son to the share of family pension along with the said respondent No. 5 on account of Late Government employee Bhubneswar Deka. 9. 9. Respondent No. 2, Director of Elementary Education Officer, Assam filed an affidavit in the matter stating that as per official records the respondent No. 5 is the wife of Late Bhubneswar Deka who was a Driver in the department and expired on 15.12.2013, having one daughter and two sons, totaling three children. The Director in his affidavit clarified that no such valid documents are available in the official records regarding the marriage between the petitioner and said Bhubneswar Deka except a Birth Certificate of Sri Diju Deka reflecting the name of the petitioner and Bhubneswar Deka. 10. The said respondent stated that with regard to entitlement of pensionary and other death benefits it is either the legally wedded wife or husband is entitled to such benefits on the occasion of superannuation or death of the government employee. The Director also stated that the respondent No. 5 submitted a separate Succession Certificate claiming pensionary benefits as wife of Late Bhubneswar Deka and that the petitioner too submitted such Succession Certificate in her favour in that regard though the first wife, respondent No. 5 and a daughter and two sons of the deceased employee is still alive from his said first wife and he expressed his surprise about the Succession Certificate submitted by the petitioner. 11. The Counsel appearing for the Official respondents clarified that there was no divorce between the said Government employee Bhubneswar Deka during his lifetime with his wife, the respondent No. 5. 12. The petitioner filed affidavit-in-reply to the affidavit of respondent No. 2. 13. In the affidavit-in-reply though petitioner annexed three judgments, but all those relate to pension under the Central Civil Services (Pension) Rules, 1972. But, the present case is under the statutory Rules of Pension, the Assam Services (Pension) Rules, 1969 and therefore, said decisions are not applicable. Moreover, petitioner's son is not a petitioner in the present case and neither the cause title of this petition nor in the body of the petition, the petitioner made any statement that she being the mother is representing her minor son. It is further observed that the Birth Certificate annexed to the writ petition as Annexure-3 does not contain any seal of the issuing authority. 14. In the case of Deokinandan Prasad Vs. It is further observed that the Birth Certificate annexed to the writ petition as Annexure-3 does not contain any seal of the issuing authority. 14. In the case of Deokinandan Prasad Vs. State of Bihar & Ors., reported in (1971) 2 SCC 330 , a Constitution Bench of the Hon'ble Supreme Court have held that- "The payment of pension does not depend upon the discretion of the State; but, on the other hand, payment of pension is governed by the Rules and a government servant coming within the Rules is entitled to claim pension". 15. With regard to the case in hand, the pension matter of said Bhubneswar Deka, late Driver in the Office of the Director of Elementary Education, Assam, Guwahati, being an employee under the Government of Assam during his life time, is governed by the Assam Services (Pension) Rules, 1969, framed under Article 309 of the Constitution of India and the said statutory Pension Rule was framed by the Government of Assam in its Finance Department. Rule 9 of said 1969 Rules stipulates 'Pension' and it reads as:- "Except when the term "Pension" is used in contradiction to Gratuity "Pension" includes Gratuity and Death cum Retirement Gratuity". 16. Chapter VIII, Section-IV of said 1969 Pension Rules relates to Family Pension Scheme, 1964 of a Government employee of the State, which is in force and for Family Pension, Rule 143 of said 1969 Rules defines 'Family' as- 143. (i) Family for the purpose of rules in this Section will include the following relatives of the officer - (a) Wife, in the case of male officer; (b) Husband, in the case of a female officer; (c) Minor son's and (d) Unmarried minor daughters. 17. Note 1 of said Rule 143 Family' specifies that (c) and (d) mentioned therein will include children adopted legally before retirement 18. Further, Rule 143 (iii) of said 1969 Pension Rules stipulates that- "Pension awarded under the rules in this Section will not be payable to more than one member of an officer's family at the same time. It will first be admissible to the widow/widower and thereafter to the minor children". 19. Further, Rule 143 (iii) of said 1969 Pension Rules stipulates that- "Pension awarded under the rules in this Section will not be payable to more than one member of an officer's family at the same time. It will first be admissible to the widow/widower and thereafter to the minor children". 19. Chapter-VIII, Section II, consisting of Sections 135 and 136 of the Assam Services (Pension) Rules, 1969 relates to 'Death-cum-Retirement Gratuity' (DCRG) and Section 136 under 'Nomination' of said 1969 Rules defines 'Family' for the purpose of DCRG and it is as follows: 136. (1) (a) 'Family' for the purpose of this rule will include the following relatives of the officer - (i) Wife in the case of a male officer; (ii) Husband in the case of a female officer; (iii) Sons (iv) Unmarried and widowed daughters; (v) Brothers below the age of 18 years and unmarried or widowed sisters; (vi) Father; (vii) Mother. 20. Note 1 of said Rule 136 provides that (iii) and (iv) mentioned therein will include stepchildren and adopted children and Rule 136(1)(b) provides 'Person' which reads as - 'Person' for the purpose of this rule shall include any company or association or body if individuals whether incorporated or not. 21. Rule 135 provides for DCRG to the Government employee and Rule 136 of said 1969 Rules amongst others provides for DCRG to the State Government employee, who dies while in service or Pensioners who (dies within five years of retirement, either by making a nomination (nominee/nominees as the case may be) or without making nomination. 22. Employees of the Government of Assam are governed by the Assam Civil Services (Conduct) Rules, 1965, a statutory Rule under Article 309 of the Constitution of India and Rule 24 of said 1965 Rules relates to 'Bigamous marriage' and it reads as - (1) No Government Servant who has a wife living shall contact marriage without first obtaining the permission of the Government, notwithstanding that such subsequent marriage is permissible under the personal law for the time being applicable to him. (2) No female Government Servant shall marry any person who has a husband living without first obtaining the permission of the Government. 23. (2) No female Government Servant shall marry any person who has a husband living without first obtaining the permission of the Government. 23. The petitioner failed to place anything before the Court that her marriage with the said deceased Government employee was a valid marriage and no legal document was placed before the Court to show that the said deceased Government employee divorced the respondent No. 5 at any point of time during his life time before marrying the petitioner. 24. Under the said 1969 statutory Pension Rules of the State for the purpose of DCRG under Rule 135 and for the said purpose 'Nomination' at Rule 136(1) (a) (iii) and (iv) 'Sons' and 'Unmarried and widowed daughters' respectively comprise of 'step-children' and 'adopted children'. 25. The Hon'ble Supreme Court in the case of Union of India Vs. Kirloskar Pneumatic Co. Ltd., reported in (1996) 4 SCC 453 have held that- "The power conferred by Articles 226/227 is designed to effectuate the law, to enforce the rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law." 26. In the case of Manish Goel Vs. Rohini Goel, reported in (2010) 4 SCC 393 the Hon'ble Apex Court have held that- "Generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The Courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law." 27. From the above, it is seen that as per the provisions of said The Assam Services (Pension) Rules, 1969, a statutory Rule under Article 309 of the Constitution of India, Family Pension of said Bhubneswar Deka, late Driver in the Office of the Director of Elementary Education, Assam, Guwahati is payable to respondent No. 5 only. 28. Further, if the said deceased Government employee Bhubneswar Deka, had made nomination for his DCRG during his life time in service, it is the said nominee or nominees will get the benefit of his DCRG as per the share, if any, specified by him in his such nomination. 28. Further, if the said deceased Government employee Bhubneswar Deka, had made nomination for his DCRG during his life time in service, it is the said nominee or nominees will get the benefit of his DCRG as per the share, if any, specified by him in his such nomination. Otherwise, if he had not nominated towards his DCRG, then the DCRG of said deceased Government employee will be shared amongst his' Family' members as provided in Rule 135 of said 1964 Rules where 'Family' is defined in Rule 136 as noted above, which includes 'stepchildren' and 'adopted children'. It is to be noted herein that The Assam Services (Pension) Rules, 1969, a statutory Rule framed under Article 309 of the Constitution of India does not provide for granting of any pensionary benefit to an illegitimate child born to a Government employee. 29. For the reasons above and as per the provision of statutory Pension Rule, namely, The Assam Services (Pension) Rules, 1969, framed under Article 309 of the Constitution of India, prayer made by the petitioner is not tenable in law. 30. Accordingly, this writ petition stands dismissed.