(1) The paramount issue involved in this writ petition is whether a second wife is entitled to have family pension during the lifetime of the first wife.

(2) The writ petitioner is the second wife of Late Abdul Kasem Ahmed, who was a Deputy Handloom and Textile Officer in the Handloom and Textile department and retired as such on 31. 10. 1994. He was granted pension on 1.11.1994 and was drawing the same continuously until his death. During the life time of Late Abdul Kasem Ahmed he was continuously maintaining his family including his wives. Late Abdul Kasem Ahmed died on 2.2.2003 and after his death his family pension is being received by Musstt. Jubeda Ahmed, the first wife. It is alleged that the first wife, Musstt. Jubeda Ahmed failed to share the family pension in between herself and the second wife, the writ petitioner. Admittedly, both the wives have sons and daughters. The family pension received by the first wife is completely utilized by her and her children. No share of it has ever been part with in favour of the second wife and her children.

(3) Being, thus, deprived, the second wife approached the concerned authority with a prayer to have a share of the family pension but her claim was dishonoured on the ground that her name was not enlisted in the family pension paper submitted by her husband, Late Abdul Kasem Ahmed.

(4) Thereafter, the writ petitioner filed a Title Suit being T. S. No. 7 of 2005 in the Court of District Judge, Nalbari for declaration that she is married wife of Late Abdul Kasem Ahmed. Objection was filed by the first wife, the respondent No. 6 herein. After conclusion of the trial, the suit of the second wife, was decreed on 18. 6. 2005. Thereafter, the writ petitioner filed a succession case for obtaining a succession certificate under Section 372 of the Indian Succession Act, 1925 before the District Judge, Nalbari and a succession certificate was granted on 11.7.2005 to collect 50% share of the total pensionary benefits inclusive of interest, dividends etc.

(5) Being armed with the judgment/order from the Court of the learned District Judge, Nalbari, writ petitioner filed representation on 27.7.2005 with the Director of Handloom and Textile, Assam and another representation on 15.5.2006 to the Treasury Officer, Dispur requesting 50% share of the pensionary benefits, she being the legally married second wife of Late Abdul Kasem Ahmed but the said representations were not considered or attended to.

(6) Being deprived of the share of the pensionary benefits, the writ petitioner filed this instant petition for a direction to the appropriate authority in release of 50% share of the family pension in her favour.

(7) Mr. A. S. Choudhury, learned Sr. Counsel for the petitioner relying in the provisions of Rule 143 of Assam Services (Pension) Rules, 1969 (for short the 1969 Rules) submitted that in cases where there are two or more widows, pension will be paid to the next survival widow, if any. The term "eldest" would mean seniority and refers to the date of marriage. This rule is provided for the purpose of deciding pension in between the legal heirs of the deceased. Since the writ petitioner is the second surviving widow of Late Abdul Kasem Ahmed she is also entitled to have a share of family pension as per the provision of the rule 143 of the 1969 Rules. In support of the above contention Mr. A. S. Choudhury, learned Sr. Counsel relied on the decision in the case between Amina Khatun and Ors. Vs. Jahura Khatun and Ors, reported in 2004 (Suppl) GLT 67 [LQ/GauHC/2002/571] wherein it was held that the 1969 Rules cannot override, the principle and provisions laid down under the Mohamedan law for which the framers of the rules inserted a "note" and provision under Rule 143 of the 1969 Rules. His Lordship while deciding as such took assistance of the ratio laid down by the Apex Court in Deokinandan Prasad Vs. State of Bihar, reported in AIR 1971 SC 1409 [LQ/SC/1971/288] . In Paragraph 10 of the judgment their Lordship held as under :

"10. Keeping in view the above decisions of the Apex Court, I am of the view that the pension and other benefits are the personal properties of Late Majar Ali, a sunni Mohemmedan, and if such properties are left by him the same should be distributed amongst the legal heirs in terms of Sections 39 and 41 of the Mahomedan Law read with Section 63 of the said Law which also indicates the table of shares under sunni Law. According to me, this legal aspect has been properly examined by both the courts below, and apart from that there is no dispute as regards the proportion of shares of the plaintiff under the Mahomedan Law. The learned trial Court has given the above observation, i. e. proportion of shares of the parties on the basis of the related issue, as highlighted above. "

(8) According to Mr. A. S. Choudhury, learned Sr. Counsel the pension and other retiral benefits being the personal properties of Late Abdul Kasem Ahmed and if such properties are left by him the same should be distributed among the legal heirs in terms of Sections 39 and 41 of the Mahomedan Law read with Section 63 of the said law. His Lordship having considered the facts in its entirety placed before him affirmed the judgment and decree passed by the learned District Judge, Barpeta in Title Appeal No. 6 of 1994 and also the judgment and decree of the Title Suit No. 6 of 1991.

(9) Mr. Choudhury, therefore, put emphasis that the writ petitioner being the second wife of her late husband, Abdul Kasem Ahmed she is also entitled to have a share in the property left by her deceased husband including family pension, she being one of the legal heirs of her husband.

(10) Confronting to the submission of the learned Sr. Counsel, Mr. A. S. Choudhury, Mr. B. J. Ghosh, learned Govt. Advocate for the respondents No. 1 to 4 referring to the provision of Rule 137 (5) of the 1969 Rules submitted that pension sanctioned under this rule will be allowed to the eldest surviving widow if the deceased is a male officer or the husband if the deceased is a female officer. According to him the writ petitioner being the second wife of Late Abdul Kasem Ahmed who was Deputy Handloom and Textile Officer, will not be entitled to receive pension when the eldest widow is surviving. That apart it was also argued by him that the deceased husband of the writ petitioner while submitting his pension papers did not nominate her enabling her to receive pension. The fact of surviving the eldest widow is not denied by the writ petitioner.

(11) Rule 136 of the 1969 Rules deals with the subject "nomination" wherein the word "family" for the purpose of this rule shown to have included the following relatives of the officer which are as follows :

(i) Wife in the case of male officer. (ii) Husband in the case of 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

In the "note" of this rule Sl. Nos. (iii) and (iv) are said to have included stepchildren and adopted children. In this rule there is no mention of second wife as one of the relatives of the officer. Again Rule 143 (iii) speaks for that pension awarded under the rules shall not be payable to more than one member of an officers family at the same time. Now, from a conjoint reading of all the rules particularly Rules 143, 136 and 137 it would appear that a surviving second wife is not entitled to have pension when the first wife is alive.

(12) There is no dispute that the deceased husband while in service had the two wives one being the writ petitioner and the other the respondent No. 6, who is now receiving the family pension. Rule 26 (1) of the Assam Civil Services (Conduct) Rules, 1965 (for short the 1965 Rules) speaks for that no Government servant who has a wife living shall contact marriage without first obtaining the permission from the Government, notwithstanding that subsequent marriage is permissible under the personal law for time being applicable to him. Thus Rule 26 (1) does not make any distinction among the Government employees on the basis of the personal law governing them. This rule prohibits polygamy. It is nowhere contended in the writ petition that the deceased husband while in service obtained permission from the government to marry a second wife the writ petitioner, Muslim personal law agrees that a Muslim under the personal law is entitled to marry more than one. Writ petitioners deceased husband being a Mahomedan was guided by Muslim personal law, therefore, was at liberty to contact a second marriage or any number of marriages as per provision of the personal law but the provisions of Rule 26 (1) of the 1965 Rules put a restriction that no Government servant who has a wife living shall contact marriage without first obtaining the permission of the Government. When this aspect is missing from the writ petition the claim of the writ petitioner in having pensionary benefits cannot be said to be legal in view of the Rules 136, 137 and 143 of the Assam Services (Pension) Rules, 1969.

(13) Learned counsel appearing for the respondents minus respondent No. 6 heavily relied in the decision in between the Suraiya Sultana Vs. State of Assam and Ors. , reported in 2006 (Suppl.) GLT 533 [LQ/GauHC/2005/653] .

(14) Having been considered the rules provided under Assam Services (Pension) Rules 1969 and Assam Civil Services (Conduct) Rules, 1965 and the law laid down by this Honble High Court, the claim of the writ petitioner is beyond the scope of consideration.

(15) The writ petition is accordingly dismissed. No order as to cost.