Gauhati High Court
Miss. Juri Baishya vs The Union Of India & 3 Ors on 22 September, 2017
Author: Nelson Sailo
Bench: Nelson Sailo
WP(C) 6674/2015
WITH
WP(C) 6683/2015
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: WP(C) 6674/2015
Miss. Juri Baishya,
D/o. Sri. Mahidar Baishya,
R/o. Village Rupak Nagar,
P.O. Hazarapar, Pin Code 784001
District Sonitpur, Assam.
................. Petitioner.
-Versus-
1. The Union of India,
Through-
The Secretary to the
Government of India,
Ministry of Defence, New Delhi,
2. The Director General of Border Roads, New Delhi.
3. The Senior Record Officer, Record Office,
General Reserve Engineer Force, (GREF)
Dighi Camp Pune 411015
4. The Commandant,
Eastern Base Workshop, GREF,
Pin Code- 931701
C/o. 99APO,
5. Smt. Sima Baishya, Widow of Late Upen Baishya,
Vehicle Mechanic under the Commandant, EBW,
GREF, C/O 99 APO, R/O.
Vill. Bebejia, Besseria under P.O-Besseria,
P.S-Tezpur, Dist:- Sonitpur, Assam.
........... Respondents.
Page 1 of 6
WP(C) 6674/2015 WITH WP(C) 6683/2015 IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) Case No: WP(C) 6683/2015
1. Smti. Subala Baishya, W/o. Sri. Mahidar Baishya, Mother of Late Upen Baishya, R/o. Village Rupak Nagar, P.O. Hazarapar, Pin Code 784001 District Sonitpur, Assam.
2. Sri. Mahidar Baishya, S/o Late Upen Baishya, R/o. Village Rupak Nagar, P.O. Hazarapar, Pin Code 784001 District Sonitpur, Assam.
................. Petitioners.
-Versus-
1. The Union of India, Through-
The Secretary to the Government of India, Ministry of Defence, New Delhi, Pin Code-01
2. The Director General of Border Roads, New Delhi.
3. The Senior Record Officer, Record Office, General Reserve Engineer Force, (GREF) Dighi Camp Pune 411015
4. The Commandant, Eastern Base Workshop, GREF, Page 2 of 6 WP(C) 6674/2015 WITH WP(C) 6683/2015 Pin Code- 931701 C/o. 99APO,
5. The Principal Controller of Defence Accounts, Dhrupadighat, Allahabad, Uttar Pradesh,
6. Smti. Sima Baishya, R/o. Village Bebejia, P.O. Babejia, Pin Code 784151, District Sonitpur, Assam.
........... Respondents.
BEFORE ::
HON'BLE MR. JUSTICE NELSON SAILO For the Writ Petitioners : Mr. S. C. Biswas, (Advocate) For the Respondents : Mr. G. Choudhury, (respondent No. 6) Mr. D.C. Borah, (respondent Nos. 1 to 5) Date of Hearing : 22.09.2017 Date of delivery of Judgment & Order : 22.09.2017 Page 3 of 6 WP(C) 6674/2015 WITH WP(C) 6683/2015 JUDGMENT AND ORDER (Oral) Heard Mr. S.C. Biswas, the learned counsel for the writ petitioners. Also heard Mr. D.C. Borah, the learned Central Government Counsel who appears for the respondent Nos. 1 to 5 in WP(C) No. 6683/2015 and Ms. A. Dass, the learned Central Government Counsel appearing for respondent Nos. 1 to 4 in WP(C) No. 6674/2015. Mr. G. Choudhury, the learned counsel appears for the private respondent in both the cases.
2. The 2 (two) writ petitions are taken up for disposal together since the issues involved are the same.
3. The facts of the case in brief is that the private respondent got married to one Shri. Upen Baishya as per Hindu rites on 16.02.2009. Out of their wedlock one son Master Hritam Baishya was born to them on 14.04.2011. Shri. Upen Baishya was appointed under the General Reserve Engineer Force (GREF) as vehicle mechanic in the month of March, 2000 with his service No. as G.S.-
181404P and was working under the respondent No. 4. Unfortunately, he died in harness on 06.09.2015 due to renal failure leaving behind his wife and his young son Master Hritam Baishya. Late Upen Baishya is also survived by his father Shri Mohidhar and his mother Smti. Subala Baishya besides his sister Miss. Juri Baishya. His sister is the writ petitioner in WP(C) 6674/2015 and his parents are the petitioners in WP(C) 6683/2015.
4. That both his sister and his parents have filed the writ petitions claiming family pension and of their deceased brother/son retirement benefits and his wife Smti. Shima Baishya although not impleaded earlier got herself impleaded as respondent No. 5 and 6 respectively in the two writ petitions.
5. According to the petitioners, the private respondent left her husband in the early part of 2012 while he was having critical kidney problem and requiring intensive nursing and caring. Shri. Upen Baishya therefore in the month of October, 2014 applied for change of his nominee for receiving service benefits to the exclusion of the private respondent. Shri. Upen Baishya on having severe Page 4 of 6 WP(C) 6674/2015 WITH WP(C) 6683/2015 kidney failure, his father donated one of his kidney to him which however did not help him to recover and consequently he died in harness on 06.09.2015. According to the petitioners since the private respondent left Shri. Upen Baishya and her minor son in their custody, the private respondent cannot be entitled to family pension and other retirement benefits and moreover since the deceased Government employee and changed the nomination in his service records during his life time.
6. Appearing for the official respondents Mr. D.C. Borah, the learned CGC submits that although the late Government servant during his life time changed the nomination in favour of his parents, sister and minor son, the name of the private respondent is still very much in the service records. In fact, as per Rule 54 (6) of the CCS Pension Rules, 1972, the wife of the deceased Government employee only is entitled to family pension in order of preference besides a son and an unmarried daughter until a certain age. Likewise, Mr. G. Choudhury, the learned counsel for the private respondent submits that given under the Hindu Succession Act, 1956 more particularly U/s 10, a widow gets the 1st preference amongst the Class-I heirs. Besides the widow, the surviving son and daughter and the mother of the intestate shall each get one share. Under such circumstance, he submits that none of the petitioners have any right to claim family pension. However except for the mother of the deceased Government employee who can have one share from the retirement benefits of her son, the father and sister of the deceased employee have no share and cannot have any claim.
7. Mr. G. Choudhury in support of his submission that the widow of Government employee living separately and not divorce is entitled to family pension relies upon the decision of the Apex Court rendered in the case G. L. Bhatia -Vs- Union of India and Anr. (1999) 5 SCC 237 . He further relies upon the case of Shipra Sengupta -Vs- M ridul Sengupta and Ors. (2009) 10 SCC 680 to content that under the Hindu Succession Act, 1956 nomination does not confer any beneficial interest on nominee.
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8. Mr. G. Choudhury, the learned counsel on instructions submits that considering the old age of the mother of the deceased Government employee, the private respondent is willing to give one share of the retirement benefits to her except the family pension which can only be claim by the private respondent herself. Therefore, he submits that if the mother of the deceased Government employee is agreeable to take one share of the retirement benefits, the writ petitions may be disposed of.
9. Mr. S. C. Biswas, the learned counsel representing both the writ petitioners submits that the mother of the deceased Government employee is agreeable to accept the one share offered by the private respondent.
10. In that view of the matter WP(C) 6683/2015 is disposed of with a direction that the retirement benefits of Late. Upen Baishya upon being apportioned in 3 (three) equal shares, his mother Smti. Subala Baishya will get one share and the remaining two shares will be given to the private respondent and her son Master Hritam Baishya. As for the family pension, the same will be given to the private respondent in terms of Rule 54 (6) of the CCS Pension Rules, 1972. The official respondents are directed to process the family pension and the retirement benefits as indicated above.
11. As for WP(C) 6674/2015, upon noticing that the sister of the deceased Government employee cannot have any share in the family pension as per the CCS (Pension) Rules, 1972 or the Hindu Succession Act, 1956, the learned counsel Shri. S. C. Biswas, submits that the petitioner would not like to press the case. Accordingly, WP(C) No 6674/2015 is disposed of as not pressed.
JUDGE B. DEY Page 6 of 6