Writ Petition (C) No. 61 of 2015. Case: Naima Khatun Vs The State of Sikkim and Ors.. Sikkim High Court

Case NumberWrit Petition (C) No. 61 of 2015
CounselFor Appellant: Doma T. Bhutia and Mina Bhusal, Advocates and For Respondents: J.B. Pradhan, Additional Advocate General, Santosh Kr. Chettri and Pollin Rai, Asstt. Govt. Advocates
JudgesSunil Kumar Sinha, C.J.
IssueConstitution of India - Article 300A
Judgement DateMarch 21, 2016
CourtSikkim High Court


Sunil Kumar Sinha, C.J.

1. Mohammad Ishaque was a fitter in Sikkim Nationalised Transport (SNT). He died in harness on 22.11.2012. He was survived by his second wife, Naima Khatun and three sons from his first wife i.e. Mukhtar Alam, Shabir Alam and Zabir Alam. After his death, a Pension Payment Order (PPO) was issued by the competent authority showing that Naima Khatun, Petitioner herein and Zabir Alam, the third son of late Mohammad Ishaque shall get the family pension to the extent of 50% each. It was also shown in the PPO that Zabir Alam shall be entitled to get family pension till 15.10.2014, i.e. the date on which he attains the age of 25 years. The Petitioner, accordingly, was receiving family pension on the said PPO, as per Rule 40 of the Sikkim Services (Pension) Rules, 1990 (for short, "the Rules of 1990"). After Zabir Alam attained the age of 25 years, the Petitioner claimed that now the entire family pension i.e. 100% be paid to her, as she remained as the sole survivor in the category of persons to receive family pension according to Rule 40 of the said Rules. The above claim of the Petitioner was refused by the Respondents under the provisions of Rule 40 (6) of the Rules of 1990, particularly on proviso to sub-clause (ii) of clause (a) of sub-rule (6). Hence this Petition.

2. Dr. Doma T. Bhutia, learned counsel appearing on behalf of the Petitioner, mainly argued that in case of the Petitioner, clause (b) of sub-rule (6) of Rule 40 will apply and the widow of the deceased, i.e. the Petitioner herein, would be entitled to get full family pension after attainment of the age of 25 years by the third son of the deceased through his first wife i.e. Zabir Alam. She relied on various decisions of the Supreme Court including a decision rendered by the High Court of Madhya Pradesh in Dropti Bai v. High Court of M.P. and another: 2002 (2) M.P.L.J. 497.

3. On the other hand, Mr. J.B. Pradhan, learned Additional Advocate General appearing on behalf of the Respondents, opposed these arguments and submitted that as per clause (a) of sub-rule (6) of Rule 40 of the Rules of 1990, the Petitioner shall not be entitled to get full pension even after attainment of age of 25 years by the third son of the deceased.

4. I have heard learned counsel for the parties.

5. In State of Jharkhand and others v. Jitendra Kumar Srivastava and Another: (2013) 12 SCC 210, relied by the counsel for the Petitioner, the Supreme Court quoted some...

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