MALA KALITA Vs. STATE OF ASSAM AND ORS.

JUDGEMENT

(1.) THE sole question which falls for consideration in this writ petition is whether an illegitimate son is entitled to a share in the family pension of his deceased father along with his first wife? The facts giving rise to this controversy may be briefly noticed at the outset. The deceased died on 21.6.2013 due to illness when he was serving as Senior Assistant under the Directorate of Secondary Education, Assam. He is survived by his first wife (the petitioner herein), his second wife (the respondent No. 7), his four sons born from his wedlock with the petitioner and one son (Mritunjoy Kalita) born out of his wed -lock with the respondent No. 7. In the Certificate of Next of Kin dated 6.8.2013 issued by the Deputy Commissioner, Kamrup (Metro), the names of the petitioner and the five sons were shown as his legal heirs. Following the death of the deceased, the petitioner applied for family pension of her husband, but her pension papers have not been forwarded by the respondent No. 2 to the respondent No. 6 till now. In the meantime, the respondent No. 3 expressed doubts on the genuineness of the said certificate issued by the Deputy Commissioner, Kamrup (Metro) and suggested to her to share the family pension equally with the respondent No. 7, which is not acceptable to her as the respondent No. 7 is not the legally married wife of the deceased. Aggrieved by the inaction of the respondent authorities, the petitioner is filing this writ petition for appropriate directions.

(2.) IT is contended by Mr. SK Singha, the learned counsel for the petitioner, that payment of family pension in Assam is regulated by the provisions of Rule 143 of the Assam Services (Pension) Rules, 1969 ("the Pension Rules" for short) and according to Rule 143 of the Rules, it is the first legally married wife of the deceased alone who is entitled to the family pension of the deceased. He submits that neither his second wife nor his illegitimate children are entitled to the family pension of the deceased. To fortify his submission, he draws my attention to the decision of this Court in Suraiya Sultana v. State of Assam & Ors, : 2006 (Supp) GLT 533. Per contra, Ms. B. Choudhury, the learned counsel for the respondent No. 7, submits that even though the marriage between the deceased and the respondent No. 7 during the lifetime of the petitioner is not valid in law, the right of the son of the respondent No. 7 born out of her wed -lock with the deceased cannot be taken away since he is the first class legal heir. Strong reliance is placed by her on the decision of the Apex Court in Rameshwari Devi v. State of Bihar, : (2000) 2 SCC 451 and decision of this Court in Bulu Das v. Moni Das, : 2003(3) GUT 400 in support of her contention. She, therefore, strenuously submits that this is a fit case for dismissing the writ petition and for issuing appropriate directions to the respondent authorities for payment half of the family pension to the illegitimate son of the deceased, who is living with the respondent No. 7.

(3.) RULE 137(5)(a)(i) of the Pension Rules provides that except when nomination is not made by the deceased officer under sub -rule (6) of the Rules 137, a pension sanctioned under Rule 137 will be allowed to the eldest surviving widow of the deceased. Then, Note 1 to Rule 137(5) explains that the expression "eldest surviving widow" occurring in clause (a)(i) above should be construed with reference to the seniority according to the date of marriage with the officer and not with reference to the age of the surviving widow. Note to Rule 143(ii) says that in cases where there are more than two or more widows, pension will be payable to the next surviving widow, if any and that the term "eldest" would mean seniority with reference to the date of marriage. On careful reading of the aforesaid provisions, there can be no difficulty in holding that eldest surviving wife with reference to the date of her marriage with the deceased will have the first and paramount charge upon the family pension of a deceased employee. In other words, none other than the eldest surviving widow of the deceased officer will be entitled to draw his family pension. In the instant case, there is no dispute that the petitioner is the eldest surviving widow of the deceased officer. Then, Rule 143(iii) makes it amply clear that the pension so awarded will not be payable to more than one member of an officer's family at the same time and that it will first be admissible to the widow/widower and thereafter to the minor children. This provision is couched in plain English, which admits of no interpretation. No other person including a second wife or a son, legitimate or otherwise, has any right to receive the family pension with the eldest surviving widow till her death or re -marriage.