IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 WA.No. 1084 of 2008 ------------------------- AGAINST THE JUDGEMENT IN WPC.3977/2008 Dated 18/02/2008 .................... APPELLANT/PETITIONER: ---------------------------- S.MEHERUNISSA, MUGAPPURA VEEDU, BEACH NORTH, PALLITHOTTAM P.O, KOLLAM - 6. BY ADV. SRI.BRIJESH MOHAN SMT.RESMI G. NAIR RESPONDENTS/RESPONDENTS: ----------------------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, PLANNING & ECONOMICS AFFAIRS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1. 2. THE DIRECTOR OF ECONIMICS & STATISTICS, DIRECTORATE OF ECONOMICS & STATISTICS, VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL, KERALA, THIRUVANANTHAPURAM. 4. THE DIRECTOR, TREASURY DIRECTORATE, THIRUVANANTHAPURAM. 5. THE DISTRICT TREASURY OFFICER, KOLLAM. 6. SMT.MYMOONA, PADIPPURAKKALLU VEEDU, EDAVANAKKAD, KOCHI. GOVERNMENT PLEADER SRI. BENNY GERVASIS. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & P.R. RAMACHANDRA MENON, JJ. ------------------------------------------ Writ Appeal No.1084 OF 2008 ------------------------------------------ Dated this the 21st day of January, 2009. J U D G M E N T Kurian Joseph, J. The appellant is the petitioner in W.P.(C) No.3977/2008. The writ petition was filed praying for a direction to sanction family pension to the petitioner with effect from 10.08.2003 since her husband died on 09.08.2003. However, as per the impugned order, the family pension was sanctioned with effect from only 01.02.2007. The reason stated in the impugned order passed by the Director of Economics & Statistics is that family pension in respect of the husband of the petitioner, M. Abdul Shukoor, had already been sanctioned in favour of the 6th respondent herein in the light of the nomination made by Abdul Shukoor. 2. Learned Senior Government Pleader submits that Abdul Shukoor had in fact made a nomination along with a joint photo W.A.No.1084/2008 2 of Smt.Mymoona in the pension book and hence only family pension was sanctioned in favour of the 6th respondent-Mymoona. But, in Exhibit P1 judgment of the Family Court, Trivandrum there is a declaration that the appellant is the legally wedded wife of Abdul Shukoor. The 6th respondent has not disputed the same. There is no appearance also for the 6th respondent. 3. It is also seen from Exhibit P1 judgment that the appellant-petitioner had made a prayer for recovery of the amounts wrongly and illegally paid to the 6th respondent. Apparently, that was declined on the ground that there is no evidence as to the amount thus paid. 4. The submission of the learned counsel for the appellant- petitioner is that in the light of the declaration by the Family Court that the petitioner is the legally wedded wife, she is entitled to family pension with effect from 09.08.2003 and the amount illegally paid to the 6th respondent is liable to be recovered. It is also submitted that in view of the Bench decision of this Court in Radhamony Amma vs. State of Kerala (2001 W.A.No.1084/2008 3 (3)KLT 49), the petitioner alone could have been paid family pension being the legally wedded wife. It has been held therein that the eligibility and entitlement of the family pension does not depend on the nomination or otherwise of the employee concerned. It depends on the status, the status originally declared by the employee concerned. As a matter of fact, under Rule 93 of the Kerala Government Servants' Conduct Rules, 1960, even if the personal law permits, an employee is not entitled to contract a second marriage without sanction from the Government. Therefore, merely for the reason that the Family Court has declined the prayer for recovery, there is no justification in not ordering family pension with effect from the date of eligibility. What is the method for recovery and payment are also matters to be decided by the authority concerned in the process. Therefore, we quash Exhibits P2, P3 and P5 with a direction to respondents 2 and 3 to pass fresh orders in the matter in the light of the observations contained in the judgment. This shall be W.A.No.1084/2008 4 done within a period of two months from the date of production of a copy of this judgment. The writ appeal is disposed of as above. KURIAN JOSEPH JUDGE P.R. RAMACHANDRA MENON JUDGE smp W.A.No.1084/2008 5 KURIAN JOSEPH & P.R. RAMACHANDRA MENON, JJ. W.A. No. 1084 OF 2008 J U D G M E N T 21.01.2009