Gauhati High Court
Musstt Khadija Begum vs Musstt Rejina Begum & 5 Ors on 15 December, 2017
Author: Manojit Bhuyan
Bench: Manojit Bhuyan
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, ARUNACHAL PRADESH AND MIZORAM)
WA No.244 of 2017
Appellant:
Musstt. Khadija Begum
Wife of Late Bulmajan Ali
Resident of Village Bhogpur
Post Office-Bhogpur
Under Goreswar Police Station
In the District of Baksa, Assam-781366
Respondents:
1. Nusstt. Rejina Begum Wife of Late Bulmajan Ali Resident of Village Bhogpur Post Office-Bhogpur Under Goreswar Police Station In the District of Baksa, Assam-781366
2. The State of Assam Represented by the Commissioner & Secretary to the Government of Assam, Irrigation Department, Dispur, Guwahati-781006.
3. The Chief Engineer Irrigation Department, Assam, Chandmari, Guwahati-781003
4. The Executive Engineer, Irrigation Department, Sukla Division, Goreswar Baksa Assam-781366
5. The Accountant General (A&E) Assam, Beltola, Maidamgaon, Guwahati-781029
6. The Commissioner & Secretary to the Government of Assam, Finance Department, Dispur, Guwahati-781006 BEFORE HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH HON'BLE MR. JUSTICE MANOJIT BHUYAN For the appellant : Mr.K Sarma, Mr. D Das, Mr.BJ Talukdar and Mr. M Baruah, learned counsel For Respondent No.1 : Mr.C Hanse, learned counsel For Respondent No.2-4 : Dr. B Ahmed, learned Standing Counsel For Respondent No.5 : Mr. G Baishya, learned counsel Date of hearing & judgment : 15.12.2017 Page 1 of 3 JUDGMENT AND ORDER (Ajit Singh, C.J.) This intra court appeal is directed against the order dated 26.07.2017 passed by the learned Single Judge of this High Court, whereby he has allowed WP(C) No. 626/2016 of respondent No.1- Rejina Begum.
2. One Bulmajan Ali married twice before his appointment in the State Irrigation Department. Respondent No.1 is the first wife whereas appellant is the second wife of Bulmajan Ali. On 27.10.2010, Bulmajan Ali died while working as a Tractor Driver in the State Irrigation Department. Respondent No.1 applied for family pension, but the Irrigation Department did not process her application on the ground that appellant, as second wife, had also put her claim for family pension. Aggrieved, respondent No.1 filed WP(C) No. 626/2016, which the learned Single Judge has allowed by the impugned order. The learned Single Judge after referring to Note 1 of Rule 143 (ii) of the Assam Services (Pension) Rules, 1969, has held that only first wife i.e. respondent No.1 is entitled for family pension and not the appellant, who is second wife of deceased Bulmajan Ali.
3. The sole question for our consideration is whether second wife of a Mohammedan employee is entitled to any share in the family pension of her late husband. And a Division Bench of this Court in Sirazun Nessa vs. State of Assam, 2011 (4) GLT 751, after examining Rule 143 (i), has already answered this question in affirmative. In that case, the Division Bench has held that Rule has not ruled out taking into consideration the valid marriage of two or more wives of a Mohammedan employee and directed that second wife was entitled to the proportionate family pension which could be determined by the office of the Accountant General, Assam. This being the settled legal position, we find the impugned order of the learned Single Judge contrary to the Division Bench decision of this High Court. In Khursheed Ahmad Khan vs. State of U.P. 2015 (8) SCC 439, the Supreme Court has nowhere stated that second wife of an Mohammedan employee is not entitled for family pension of her husband. The decision of the Supreme Court is therefore not applicable in the present case.
Page 2 of 34. We accordingly set aside the impugned order and direct that appellant shall be entitled to the proportionate family pension which could be determined by the office of the Accountant General, Assam and, for this purpose, the said authority may ask the appellant and Respondent No.1 to clarify the ratio of their claim in accordance with the Mohammedan Law.
5. The appeal is allowed to the above extent.
JUDGE CHIEF JUSTICE
skd
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