WA 168/2010 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR.JUSTICE B.D.AGARWAL JUDGEMENT AND ORDER B.D.Agarwal,J: A short but an important question of law involved in this Writ Appeal, is as to whether the second wife of a Mohammedan employee is entitled t o any share in the family pension of her late husband. Having answered the issue in the negative by the learned Single Judge, the writ petitioner has challenge d the judgment and order dated 23.3.2010, passed in W.P(C)No.2450 of 2007. 2. We have heard the argument of Shri A.M.Mazumdar, learned senior counsel for the appellant/writ petitioner. The State of Assam (respondents No. 1 ,5 and 6) were represented by Sri B. Gogoi, advocate; Agriculture Department (re spondents No.2 and 4) were represented by Sri C.Baruah, learned standing counsel . Respondent No.7 i.e. the Branch Manager of the United Bank of India as well as the first wife of the deceased, Smti Anwara Begum (Respondent No.8) did not tur n up, despite being notified. 3. The facts in a narrow compass are that the appellant had marr ied late Asoddar Ali Tapadar in the year 1971, during the subsistence of his ma rriage with the respondent No.8. As per pleadings in the writ petition, the dece ased had eight children through the first wife and three children through the 2n d wife. Due to some matrimonial discord, the appellant had started living sep arately from her husband since 1985 and had also filed a case, being MR No.20/8 5, seeking maintenance allowance from her husband. The said case culminated in c ompromise and her husband agreed to pay a sum of Rs. 1500/- per month towards her own maintenance as well as their children. It was also pleaded in the writ p etition that after retirement from service, the deceased submitted an applicati on before the concerned department on 22.9.2005, requesting inclusion of the n ame of the appellant as a nominee to receive 50% pensionary benefits after his death. It may also be mentioned here that the appellant/respondent retired from service on 31.12.2003 and died on 1.10.2006. Thereafter, both the appellant and the respondent No.8 had staked their claim for retiral benefits, and having learnt that the concerned department is likely to sanction the payment of pensi on in favour of the first wife (respondent no.8), she filed the writ petition, which came to be dismissed by the impugned judgment. 4. Agriculture Department submitted its affidavit-in-opposition in the writ petition, pleading that the pension papers were processed in the year 2 003 and till then the name of the respondent No.8 was not reflected in the ser vice record and being the wife and nominee of the employee. However, the fact o f submission of an application by the deceased employee on 22.9.2005 to that eff ect has not been disputed by the aforesaid respondent. 5. During the course of hearing of the appeal, learned standing cou nsel for Agriculture Department has reiterated the aforesaid facts. At the sam e time, the writ petitioner had also annexed a copy of the application of the d eceased employee, submitted to the Director of Agriculture (respondent No.2) on 22.9.2005, and the authenticity of this document has also not been disputed in the affidavit submitted by the respondent No.2 . 6. Sri Baruah, learned standing counsel for the Accountant General also submitted that his office has taken initiative to finalise the pension in the name of respondent No.8, as the name of the writ petitioner did not find place in the service dossier. The learned standing counsel has also contended that it is difficult to ascertain on the part of the Accountant General as to wh ether the appellant/petitioner is a legally married wife of the deceased employ ee. In our considered opinion, since the respondent No.8 herself did not challen ge the marriage of the appellant with the deceased, the office of the Accountan t General cannot suo moto go into this aspect. His office, at best, can examine the claim of the pension, on the basis of the service record as well as the rel evant Pension Rules. At the same time, the deceased was an employee of Assam Gov ernment in the Agriculture Department. He retired as Village Level Extension Wor ker (VLEW) from the office of District Agriculture Officer, Cachar, Silchar. He nce, the claim of pension has to be examined by the concerned department as p er provisions of The Assam Services (Pension) Rules, 1969 . 7. Rule 9 defines ’Pension’ whereas, Rule 143 specifies, inter ali a, the names of legal heirs of the deceased employee in order of preference who are entitled to Family Pension. For ready reference, it would be just and prop er to reproduce Rule 9 and the relevant paragraphs of Rule 143 which are as foll ows: 9. Pension.- Except when the term Pension is used in contradistinction to Gra tuity, Pension includes Gratuity and Death-cum-Retirement Gratuity. 143. (i) Family for the purpose of rules in this Section will include the follo wing relatives of the officer- (a) wife, in the case of a male officer; (b) husband, in the case of a female officer; (c) minor sons; and (d) unmarried minor daughters. Note.-1 (c) and (d) will include children adopted legality before retirement. Note.2- Marriage after retirement will not be recognized for purposes of rules i n this Section. (ii) The pension will be admissible - (a) in the case of widow/widower up to the date of her /his death or re-marr iage whichever is earlier. (b) in the case of a minor son, until he attains the age of 18 years. (c) in the case of an unmarried daughter, until she attains the age of 21 years or marriage whichever is earlier. Note.- In cases where there are two or more widows, pension will be payable to t he next surviving widow, if any. The term ’eldest’ would mean seniority with ref erence to the date of marriage. (Emphasis is ours) (iii) Pension awarded under the rules in this Section will not be payable to m ore than one member of an officer’s family at the same time. It will first be ad missible to the widow/widower and thereafter to the minor children. (iv) *** *** *** (v) *** *** *** 8. Sri Mazumdar, learned senior counsel for the appellant has submi tted that since the deceased was a Mohammedan by faith, he was permitted under h is Personal Law (Mahamaddan Law) to marry the appellant even during the subsiste nce of his marriage with the first wife and as such, the appellant/writ petitio ner is legally entitled to inherit the proportionate Family Pension. To buttress his submission, learned senior counsel has relied upon the judgment of the Hon ’ble Supreme Court rendered in the case of Deokinandan Prasad --vs- the Stat e of Bihar (AIR 1971 SC 1409),which was followed by the 2nd round of litigation between the same parties as reported in AIR 1984 SC 1560. The learned counsel h as also relied upon the judgment of the Gauhati High Court given in the case of Amina Khatun -Vs- Jahura Khatun, reported in 2004 (Suppl.) GLT 67. 9. After going through the impugned judgment, we have noticed that the learned Single Judge has though referred the judgment of Amina Khatun (supra ) but has differed with the ratio laid down therein. At the same time, his Lords hip has reiterated the view taken by him in the case of Suraiya Sultana -vs- Sta te of Assam, reported in 2006 (Suppl) GLT 533. Strangely, in both the cases i.e. Amina Khatun (supra) and Suraiya Sultana (supra) the attention of their Lordshi p, with regard to the judgment of the Supreme Court, was not drawn. The learne d Single Judge had no occasion to consider the Apex Court judgment on the point. 10. In the case of Suraiya Sultana the learned Single Judge had the occasion to decide two writ petitions, filed by the two wives, claiming their r espective share in the Family Pension. The first writ petitioner was a Mahamadd en by faith, whereas the 2nd writ petitioner was a Hindu by faith. While dealing with the case of the Mahammedan wife, the learned Single Judge dismissed her prayer with the aid of Rule 26 of the Assam Civil Services (Conduct) Rules, 196 5 (in short ’Conduct Rules’) which prohibits Government servants from contractin g 2nd marriage without first obtaining permission from the Govt., notwithstandi ng such a subsequent marriage is permissible under the personal law. According to his Lordship, in view of the aforesaid service condition, the 2nd marriage of a Government employee without permission from the Govt. is void and only the widow and children of a valid marriage are entitled to the Family Pension. 11. While rejecting the claim of the 2nd wife of a Mohammedan empl oyee, the learned Single Judge did not address the legality of such marriage und er the personal law. In other words, the claim of first writ petitioner was reje cted on the ground of violation of the Conduct Rules alone. However, the prayer of the 2nd wife (widow of a Hindu employee) in the second writ petition was r ejected holding that such marriage is hit by Section 5 of the Hindu Marriage Act , 1955. To put it differently, his Lordship held that Hindu law does not permit 2nd marriage during the subsistence of first marriage and if the husband and sp ouse are living at the time of 2nd marriage. In this way, the learned Single Jud ge examined the case of the Hindu wife, taking into consideration her personal law. In other words, the learned Single Judge did not rule out the possibility o f taking into consideration the personal law of the legal heirs of the deceased while determining the claim for family pension. 12. As noted earlier the instant writ petition was decided on the ba sis of the ratio laid down by His Lordship in the case of Suraiya Sultana (supra ) and also reiterated Rule 143 (iii) vis-a-vis Rule 26 (i) of the Conduct Rules . 13. Whereas, in the case of Amina Khatun (supra), another learned S ingle Judge of this court has taken a view that Rule 143 does not rule out the p ossibility of entertaining the claim for family pension by more than one spou se of a deceased Government Employee, after referring the judgment of the Apex C ourt in the case of Deokinandan Prasad (supra) as well as the relevant provisio ns of Pension Rules. His Lordship upheld the judgment of a civil court about the entitlement of proportionate Family Pension by the second wife of a Mohemadan employee. 14. In the case of Amina Khatun (supra), the learned Single Judge ha s taken into consideration the Note oviso appended to Rule 143 (ii) of Pension R ules. (quoted ibid.) 15. It is true that under Rule 143(i) there is no indication of enti tlement of family pension by more than one wife. However, in the Note appended to Rule 143(ii) definitely points out consideration of the claim for family p ension by two or more widows. The aforesaid rule, as a whole, indicates that th e eldest surviving widow would be entitled to the family pension. At the same t ime, the Rule has not ruled out taking into consideration the valid marriage of two or more wives by a Mohammedan employee. 16. At this stage, we would like to address the effect of ’Conduc t Rules’, while determining the claim of the family pension. As noted earlier, the learned Single Judge has referred to Rule 26 of the ’Conduct Rules’; which h as put certain pre-conditions for contracting a second marriage. Admittedly the ’Conduct Rules’ do not totally prohibit a 2nd marriage, provided it is permitt ed under the personal law and custom of the concerned Government employee. The o nly rider is to obtain permission from the Government. In our considered opini on, any violation of the Conduct Rules may entail disciplinary proceeding duri ng the service tenure of a Government employee but any such violation does not amount to declaring 2nd marriage between the two Muslim spouses void, provided it is otherwise legal and valid. Hence, the rejection of the claim of a second M ohemadan wife with the aid of ’Conduct Rules’ is unsustainable in law. 17. In the case of Deokinandan Prasad (supra), their Lordships have held that ’Pension is a property of a Govt. servant and withholding of the same for no valid reason offends Article 19(1)(f) of the Constitution of India. In o ur view also a property is an actionable claim and the rights and liabilities over such properties have to be determined in accordance with he personal laws o f the parties. In other words, we are of the opinion that the view taken in the case of Amina Khatun (supra) appears to be more rational than the judgment rend ered in the case of Suraiya Sultana (supra). 18. For the foregoing reasons, we are in agreement with the view tak en in the case of Amina Khatun (supra) in preference to the decision taken in Suraiya Sultana (supra) as well as the impugned judgment. As a corollary, the i mpugned judgment is hereby set aside. It is held that the appellant /writ petiti oner is entitled to the proportionate Family Pension, which would be determined by the office of the Accountant General, Assam, and for this purpose the said au thority may ask both the surviving widows of the deceased to clarify the ratio o f their claim in accordance with the Mohemadan law. In the event of any dispu te about the ratio, the parties may be asked to bring appropriate decree from a competent civil court. 19. In the result, the appeal stands allowed, subject to the observa tions made in the preceding paragraphs.