Legal guardianship certificate

This query is : Resolved 
 

(Querist)
21 April 2017

Sir,I am a resident of westbengal,i lost my wife 2 years back,she was employed in a govt sponsored school,we had a baby boy,i again remarried this year,according to pension rule,after my remarriage my son is entitled to get family pension of my deceased wife,we have applied for the same,but office is asking for LEGAL GUARDIANSHIP CERTIFICATE from 1 st class magistrate ,in my favour,my son is in my custody,and there is no other person who claim his custody,in this case myself being the natural guardian is it necessary to obtain the certificate,does my natural guardianship ends with my remarriage,and if it is necessary how to obtain it.




Guest (Expert)
21 April 2017

So, what is the hitch in completion of a legal formality?

Act as per the requirement of pension rules.

P. Venu (Expert)
21 April 2017

The father, even if remarried, is the natural guardian. The demand of the certificate appears to be a case of bureaucratic overreach. You may take up the matter with the superior authorities.



Guest (Expert)
21 April 2017

Venu ji,

Here the case is of reverse type. The deceased employee, i.e., the real mother has died, father on remarriage is ineligible for family pension. So the child is eligible for family pension. But being minor a guardian needs to be appointed. May the father is natural guardian, but it seems that after his remarriage the authorities want to be sure whether the pension goes in the right hands for and on behalf of the minor or not.

P. Venu (Expert)
21 April 2017

I am sorry for the lapse that I had mentioned 'mother' instead of the 'father'. The lapse is regretted. The posting has since been corrected.

However, I still hold that this is a case of executive overreach. This is apparent in that the certificate is sought from the First Class Magistrate who, as far as my knowledge, has no jurisdiction in the matter.



Guest (Expert)
21 April 2017

Venu ji,

I also agree with you that biological father is a legal guardian, but authorities definitely need to be cautious to avoid pension going to wrong hands in case his step mother discards the baby. Legal process, a better option, for the authorities would have been considered safe to avoid any future irreversible irregularity.

So, unless the competent authority is convinced the father cannot compel him to disburse pension for and on behalf of his child.

Dr J C Vashista (Expert)
22 April 2017

I fully agree with expert Sh. PS Dhingra, noting more to add.

Obtain LR certificate of your son (from your deceased wife) which is not a big issue, approach your area SDM, the competent authority on the subject matter.

swagata (Querist)
22 April 2017

I do appreciate the views of P.S Dingra ji,which is practically justifiable,and in view of the suggestions made by J C Vashistha,we have already obtained Legal heir certificate from tahasilder and submitted the same,Sir can you please elaborate what is LR certificate,
And as rightly mentioned by Mr P Venu in this case there is no other claimant except myself,and I am in custody of my son,and my in laws are pefecetly ok with it,they have also visited the pension officials and redy to give their NOC for the matter,and when we have approached local lawyers they also stated the same that first class magistrate has no power to issue the same,Though the communications made by paension officials are a verbal one we have asked them to issue a memo in writing,so that we can take up the matter with court,Local lawyers are also stating this is executive overreach

swagata (Querist)
22 April 2017

Sir apart from casting apprehensions on various possibilities,what Mr Dhigra is pointing out,I want to know the exact legal
interpretation in the issue,I want to Point out to Mr Dhigra that What he is pointing out is correct but nothing is absolute in this issue,if court awards the guardianship say to Mr X,in future date this Mr X can also misuse the money intended for the wellbeing of the minor,let it be any body other that the father, where is the gurantee for it

Dr J C Vashista (Expert)
23 April 2017

Dear Mr. Swatagata,
You will appreciate the conceptual legal advise of Mr. PS Dhingra as being practiced and the procedure/approach followed by the Courts in such circumstances, I fully agree and appreciate his legal acumen-ship.

Legal Representative abbreviated as LR, (Legal Heir-in a layman's language) Certificate you have stated to have already obtained from Tehsildar.




Guest (Expert)
23 April 2017

Mr. Swagata,

Your vague plea and intention to stretch the thread without any necessity makes me believe as if you don't have any such personal problem, but you are trying to fetch answer to some of your academic query. Otherwise, instead of giving vague pleas, you could have tried to get the legal guardianship cerificate from the 1st Class Magistrate. You should know that a Tehsildar is merely a 3rd Class Magistrate to discharge functions for the jobs of lesser importance that may unduly cause hurdles in handling important matters by the higher class Magistrates.

So far as your plea of misuse of pension in future even after submission of certificate issued by a 1st Class Magistrate, everything is possible in future. Nobody has the power to withhold future events. But, what presently precaution is needed by the authorities has been told by them to you, so that they may not become the target of being charged for disbursing pension to wrong hands.

Just imagine, if the pension sanctioning authority or disbursing officer is later chargesheeted on any complaint and recovery of wrongly paid pension amount is effected from their salary, would you come to their rescue later on, if you or your second wife misuses the child's dues instead of using for his/her maintenance and welfare?

You should know that no authority makes his own laws, they have to implement whatever is prescribed in the statutory rules by taking due prescribed precautions.

About your statement that some local lawyers have told you that first class magistrate has no power to issue a legal guardianship certificate, they seem to be quite ignorant about legal position of a Tehsildar vis a vis his superiors. Their contention that a tehsildar, who is merely a 3rd class Magistrate, has the power, but a first class Magistrate does not have. Either you are pretending in the name of some local lawyers, or they seem to be quite ignorant, as to which authority can use delegated powers of which other authority at the time of need.

So, just think, if the pension office authorities have asked for the guardianship certificate from a 1st Class Magistrate, would you or any of your advising lawyer compel them to accept the certificate issued by a Tehsildar, except when directed by a competent court of law.

So, if you or your advisors feel that the authorities must accept the certificate issued only by Tehsildar, you may better get order of the competent court, so that the Government authorities may feel absolved of violating statutory rules on their part.

N.J.S.Rajkumar alias narasimha (Expert)
23 April 2017

Agreed with Experts

swagata (Querist)
24 April 2017

dear sir,the authorities has already accepted the legal heir certificate issued by block development officer in this case.

please clarify what is the procedure to obtain legal guardianship certificate from 1 st class magistrate,any lawyer from kolkata can provide his/her contact details,who will professionaly help me to obtain the same.
and sir it is my personal problem not of anything out of academic interest



Guest (Expert)
25 April 2017

On going to the court premises, several lawyers would be available in court premises. You may also go to anyone of the lawyers in their chambers in Calcutta court. Even if told about any lawyer, still you will have to go to the place of the lawyer and the court.

P. Venu (Expert)
25 April 2017

I am afraid the discussion is going off the tangent, devoid of the basic legal elements involved.

The basic question is
(i) whether there is a legal/administrative requirement, under the relevant pension rules/scheme, to obtain legal heir-ship certificate in the instant case;
(ii) if so, under which rule; and
(iii) which is the authority empowered to issue such certificate in West Bengal?

The author will be better placed to deal with the issue if he obtains the relevant information under the RTI Act,

Rajendra K Goyal (Expert)
25 April 2017

Agree with the expert P. Venu.



Guest (Expert)
25 April 2017

Venu ji & Rajednra ji,

About your perceptiion about the author's query, "whether there is a legal/administrative requirement, under the relevant pension rules/scheme, to obtain legal heir-ship certificate in the instant case," the question, as per the query, did not relate to the legal heirship, but legal guardianship, as the author has clearly stated, "office is asking for LEGAL GUARDIANSHIP CERTIFICATE from 1 st class magistrate."

Title of the query also suggests for "legal guardianship certificate."

The author has further stated that "the authorities have already accepted the legal heir certificate issued by block development officer."

So, the present demand is the legal guardianship certificate.

swagata (Querist)
25 April 2017

ok thanks guys,got it,keep on helping laymen like us in the same fashion in future,the issue is resolved it least for this thread,

N.J.S.Rajkumar alias narasimha (Expert)
26 April 2017

Even in the Courts the Advocates would be addressed as" Learned Counsel" The Very Senior Experts/Advocates had attended your Query and addressing them as "guys" will not be appreciated here.

P. Venu (Expert)
26 April 2017

Yes, it has been another mistake on my part that I mentioned "Legal heir-ship certificate" instead of "Legal guardianship certificate"

In fact, the latter certificate is a concept unknown to law. The Law requires that, in situations where natural guardian are not available or incapacitated or incompetent, the competent court need to appoint the legal guardian. And the Second Class Magistrate or the BDO is not certainly conferred with any jurisdiction in this context.

N.J.S.Rajkumar alias narasimha (Expert)
26 April 2017

Normally the Court would appoint a Guardian of Property/Assets to an incompetent Person like spouse/brother/sister /parents ets.But they will have no powers to make any transaction.If any objection is made the Court would even appoint a third person not connected to Property/assets or Family as Guardian and in many cases the Concerned Counsel it self would be appointed as Guardian.

P. Venu (Expert)
26 April 2017

The issue involved is whether, while examining the authorizing family pension to a minor, the natural guardian is required to get certified of his/her capacity as the natural guardian. The issue is all the more relevant when it is a fact on record that he/she is the natural guardian.

swagata (Querist)
28 April 2017

would like to rectify my mistake,a big thanks to ALL THE LEARNED COUNSEL S,actually thats why I represented myself as a laymen,ignorant of the complex vagaries of courtroom legal etiqoates,



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