IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 WP(C).No. 4219 of 2010(B) -------------------------------- PETITIONER(S): ------------------- T. GANGADHARAN, THOVARAYIL HOUSE, NEAR VALIYAPARA, P.O.KOOTHUPARAMBA, KANNUR DISTRICT. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): --------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT JUDGE, KASARAGOD, 3. MUNSIFF HOSDURG, KASARAGOD, 4. ACCOUNTANT GENERAL, THIRUVANANTHAPURAM. 5. P. BABY, D/O. LATE AMBU, PADINJAREVEEDU, LAKSHMI NAGAR, KANHANGAD P.O., KASARAGOD DISTRICT. 6. SUBTRESURY OFFICER, KUTHUPARAMBA, KANNUR DISTRICT, R1 TO R4, R6 BY GOVT.PLEADER SRI.SANDESH RAJA. R5 BY ADVS. SRI.V.V.ASOKAN SMT. RUHKIYABI MUHAMMED KUNHI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ WP(C).No. 4219/2010(B) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER NO.3774/2002/B1 DATED 24/08/2002 ISSUED BY THE 2ND RESPONDENT. P2: COPY OF THE JUDGMENT DATED 07/03/2009 IN 0.S.NO.33/2003. P3: COPY OF THE LETTER DATED 16/11/2009 ISSUED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT. P4: COPY OF THE REPLY DATED 22/12/2009 ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT. RESPONDENT'S EXHIBITS NIL /TRUE COPY/ P.A. TO JUDGE SVS/ T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.4219 of 2010-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of October, 2010. JUDGMENT The petitioner is the husband of late Smt. P. Padmini, U.D. Clerk (Higher Grade) in the judicial service, viz. Munsiff's Court, Hosdurg. She died while in service, on 13.9.2001 leaving her husband and two minor children. The claim for family pension in favour of the petitioner, was originally sanctioned and he has received the same upto November, 2003. This is clear from the counter affidavit of the first respondent also. 2. A dispute was raised by the fifth respondent who is the sister of the deceased, contending that as per the will executed by the deceased, her two minor children are entitled for the entire pensionary benefits. This resulted in them filing O.S. No.33/2003 before the Subordinate Judge's Court, Hosdurg. Prior to the same, it appears that the matter was taken up before the learned District Judge who, as per Ext.P1 order, had upheld the right of the petitioner for family pension. As per the judgment Ext.P2 also, the petitioner's right to get family pension has been recognised. 3. The only obstacle before the petitioner now is that C.M.C. No.28/2009 in an unnumbered R.F.A. is pending before this Court at the wpc 4219/2010 2 instance of the fifth respondent and the minor children of the petitioner. Accordingly, the Accountant General, by Ext.P3, informed that the amount will be disbursed depending upon the outcome of the judgment of this Court. 4. As far as the family pension is concerned, under Rule 90(8) of Part III K.S.R., it will first be admissible to the widow/widower and thereafter to the eligible son/daughter in the order of seniority as given in the definition of family in sub-rule (6) till they attain the age of 25 years or getting married or starts earning his/her livelihood whichever is earlier. 5. As on today, there is no interim order also in the C.M.C. prohibiting the disbursement of family pension to the petitioner. Therefore, the mere pendency of a C.M.C. will not operate as a stay against the decree passed by the Sub Court. 6. Therefore, the competent authority will have to pass appropriate orders in the matter and there will be a direction to the fourth respondent to pass appropriate orders with regard to the claim for family pension, with notice to the petitioner and the fifth respondent in accordance with rules, within a period of two months from the date of receipt of a copy of this wpc 4219/2010 3 judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/