1. Heard Mr. AFNU Mollah, learned counsel for the petitioner. Also heard Mr. SMT Chistie, learned counsel for the respondents.

2. The present contempt petition is filed alleging willful and deliberate non-compliance with the order dated 16.11.2023, passed in WP(C) No.3469/2022.

3. The aforesaid Writ Petition was filed by the first wife of Lt. Bhaba Kanta Dutta @ Bhaba Jyoti Dutta, a Government Servant, claiming family pension.

4. Such a family pension was not granted to the first wife on the grounds that the deceased Government Servant had nominated respondent No.9 (in the writ petition) as his wife in his service records.

5. Taking note of the provisions of Rule 143 of the Assam Services (Pension) Rules, 1969 and the Hindu Marriage Act, 1955, the learned Judge order dated 16.11.2023 concluded that it is the first wife who would be entitled to the payment of family pension as there cannot be any valid marriage during subsistence of the first marriage, for persons professing the hindu faith.

6. As there was a dispute as to whether the petitioner is the first wife of the deceased Government Servant, even though a Next of Kin Certificate has been annexed to the writ petition, accordingly, on a consensus, the writ petition was disposed of directing the respondent No.4 therein to cause an enquiry and give personal hearing to the petitioner and the respondent No.9 therein, prior to taking a decision, as to whether, the petitioner or the respondent No.9 is the first wife at the time of death of the Government servant.

7. It was further provided that if any of the parties are aggrieved with the decision of the respondent No.4, they can always take recourse to the Civil Court to prove whether either of them is the first wife of the Government servant. Such a decision was to be made within two months of receiving the certified copy of the order.

8. Alleging non compliance of the said order, the petitioner in WP(C) No.3469/2022 has filed the present contempt petition.

9. The learned counsel for the respondents in the present petition has argued that a determination was made, and it was held that the petitioner herein is the first wife and accordingly, a pension proposal had already been submitted to the Director of Pension, Assam.

10. As regards sharing of the family pension between the first wife of the Government servant and his minor son, namely, Piyush Krishna Dutta, from his second wife, the Director of Pension sought a guardian certificate in respect of the minor son from the second wife, joint photographs of the minor son with the legal guardian etc.

11. It is submitted by the learned counsel for the petitioner that such documents have already been submitted before the concerned authorities.

12. The learned counsel for the petitioner has also brought on record the joint affidavit, sworn by the petitioner herein and the second wife of the Government servant, agreeing to share the pension at a proportion of 60% in favour of the petitioner herein and 40% in favour of the minor son, namely, Piyush Krishna Dutta. The said affidavit is quoted herein below:

                   “We, (1) SMTI DIBYALATA HAZARIKA, W/O - Late Bhaba Kanta Dutta, aged about 70 years, R/O - Nazira Namati Gaon, P.O. & P.S.- Nazira, Dist.- Sivasagar, Assam, (2) SMTI JYOTI DUTTA, aged about 50 years, 2nd wife of Late Bhaba Kanta Dutta, R/O Dikhowmukh Ujani Bharalua Gaon, P.O.- Bharalua Tiniali, P.S.-Gaurisagar, Dist.- Sivasagar, Assam, do hereby solemnly declare and affirm as under.

                   1. That we are citizens of India by birth and permanent resident of the above mentioned address.

                   2. That I deponent No. 1 is the legally married wife of Late Bhaba Kanta Dutta who died on 20/01/2021 who was a Govt. teacher of 58 No. Alimur Miri Prathamik Vidyalaya and his PPO No. ADP/PPO/GPO/22/062832.

                   3. That I deponent No. 2 is the 2nd wife of Late Bhaba Kanta Dutta and out of our wedlock 3 children were borne namely at (1) Prerona Dutta (married), (2) Pran Krishna Dutta (20 years), (3) Piyush Krishna Dutta (16 years).

                   4. That I deponent No. 2 do hereby declare that as my son Piyush Krishna Dutta is a minor therefore I am executing this affidavit on behalf of him.

                   5. That we both have agreed regarding the ratic between the Deponent No. 1 and Piyush Krishna Dutta at 60:40 l.e. 60% in favour of the Deponent No. 1 and 40% in favour of the minor Piyush Krishna Dutta.

                   6. That we hereby declare that the aforesaid ratio will be applicable in case of the arrear amount and the family pension amount till Piyush Krishna Dutta attend the age of 18 years old.

                   7. That the contents of this affidavit are true and correct to the best of my knowledge and belief and nothing materials has been concealed therein.”

13. In the aforesaid backdrop the learned counsel for the respondent Director of Pension as well as the employer contends that in terms of the Rule 1969, only one pension payment order (PPO) can be issued and such PPO can only be issued exclusively in favour of the first wife of the deceased Government servant and no separate or additional PPO can be issued in favour of any person, including the Minor. Therefore, they seek a direction in the present proceeding so that the petitioner herein can be obliged to disburse the already agreed share to the minor till the minor attains the age of majority.

14. The learned counsel for the petitioner agrees to the aforesaid proposition of the learned counsel for the respondents.

15. Thus, from the aforesaid, what is the concern in the present proceeding is only the distribution of family pension payable in respect of the respondent Government servant, namely, Bhaba Kanta Dutta, amongst the claimants, namely, Smti Dibyalata Hazarika legally wedded first wife of the deceased and the minor, namely, Piyush Krishna Dutta born out of the wedlock with the second wife, namely, Smti Jyoti Dutta.

16. The parentage and dependency of the minor are not in dispute. In the joint affidavit of consent, both parties have unequivocally stated that they have voluntarily agreed without coercion to share the family pension in the proportion of 60% to the first wife and 40% to the minor son. It is submitted by the learned Counsel for the petitioner that such an arrangement is in the best interest of the minor and that neither party shall raise any dispute in future in respect of the said agreement.

17. This court records here that there is a statutory limitation under the scheme of the Rules 1963 for issuance of two PPO’s inasmuch as such provision permits issuance of only one PPO in respect of the family pension, and such PPO must be issued in favour of the first wife. The said rule does not permit the issuance of multiple PPO’s or the division of pension at the treasury level. This statutory position is accepted by all parties and is not disputed.

18. A family pension is a statutory welfare benefit payable in accordance with pension rules. While the rule regulates the mode of disbursement, it does not prohibit a court-approved consent-based arrangement governing the application of pension proceeds after receipt by the authorised pensioner.

19. This court is also of the opinion that recording of such a consensual arrangement as recorded herein above does not violate Rule 143; does not require issuance of more than one PPO; does not dilute the primacy of the widow, and does not create any independent pensionary right in favour of the minor. Such an agreement preserves the statutory priority of the first wife; secure the welfare of the dependent minor, and is founded entirely on voluntary consent.

20. Since the arrangement is consensual and lawful, this court sees no impediment to recording or enforcing it.

21. Accordingly, this court is of the opinion that the respondents are not in contempt of the order dated 16.11.2023 passed in WP(C) No.3469/2022.

22. However, it is clarified that the PPO shall be issued only in the name of the first wife, and the sharing shall operate after receipt of the pension, arrears/currant, as a binding obligation arising from the agreement.

23. Accordingly, the respondent shall issue the PPO in the aforesaid term. However, in terms of the recorded consent and this order, out of the monthly family pension received under the PPO, the petitioner Smti. Dibya Lata Hazarika shall retain 60% and disburse 40% every month to the minor, Piyush Krishna Dutta, through the natural guardian, for the minor's maintenance, education, and welfare. The first wife shall hold the share of the Minor in a fiduciary capacity, and the obligation to disburse the same shall continue till the minor attains majority.

24. This arrangement does not create any permanent or independent pensionary right in favour of the minor and shall not require alteration of the PPO.

25. It is needless to say that failure to comply with this arrangement shall render the defaulting party liable to appropriate proceedings in accordance with law.

26. For clarity, it is provided that this order is consent based, fact specific and shall not operate as a precedent.

27. Accordingly, the contempt petition stands closed.