IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932 WP(C).No. 1606 of 2007(N) --------------------------------- PETITIONER(S): --------------- MOHAN GEORGE,(MENTALLY RETARDED) REPRESENTED BY PHILOMINA MATHEW, SISTER AND BEST FRIEND, PANACHAKKALA HOUSE IRAVAN VILLAGE, KOZHENCHERY TALUK. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE, KERALA GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. ACCOUNTANT GENERAL, INDIAN AUDIT & ACCOUNTS DEPARTMENT, OFFICE OF ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM-695 039. 3. DEPUTY DIRECTOR OF PANCHAYATH, PATHANAMTHITTA. SPL.GOVERNMENT PLEADER MR. MANOJ KUMAR FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 1606 of 2007 APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF MEDICAL CERTIFICATE DTD 29.10.2002 ISSUED BY ASSISTANT SURGEON, PSYCHIATRIST, DISTRICT MEDICAL BOARD, PATHANAMTHITTA. EXT.P2: COPY OF DISABILITY CERTIFICATE DTD 14.09.2004 SHOWING THAT PETITIONER IS MENTALLY DISABLE. EXT.P3: COPY OF MEDICAL CERTIFICATE DTD 13.12.2005 CERTIFYING THAT PETITIONER DISABILITY HAS RENDERED HIM UNABLE TO EARN. EXT.P4: COPY OF HEIRSHIP CERTITIFICATE DTD 28.01.2004. EXT.P5: COPY OF DEATH CERTIFICATE ISSUED BY SECRETARY OF PANCHAYATH, KOZHENCHERRY PANCHAYATH DTD SHOWING THAT PETITIONER DIED ON 28.4.2001. EXT.P6: COPY OF PROCEEDINGS OF R3 DTD 28.10.2005. EXT.P7: COPY OF PROCEEDINGS OF R2 DTD 3.04.2006 REJECTING PETITIONER'S REQUEST FOR PENSIONARY DUES FROM 1.05.2001. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ----------------------------------- W.P.(C) No.1606 OF 2007 --------------------------------------- Dated this the 1st day of March, 2011 JUDGMENT The petitioner herein is a mentally retarded person represented by his sister and best friend. The petitioner's mother was an employee under the Government of Kerala who retired from service on 30.6.2002. She died on 20.4.2001 leaving behind the petitioner and his sister named Philomina. The petitioner through his sister applied for family pension on the ground that he is mentally retarded person. But, family pension was sanctioned to the petitioner only from the date of application. According to the petitioner, the petitioner is entitled to arrears of family pension from the next due date of pension from the date of death of the petitioner's mother. The same has been rejected by Ext.P7 order on the ground that as per a Government Order and a Circular referred to therein, family pension to unmarried daughters, parents, physically/mentally disabled children etc. are to be paid from the date from which application for family pension with all enclosures are received in W.P.(C)No.1606/07 2 full shape/from the date of issuance of eligibility certificate. That order is under challenge before me. The petitioner seeks the following reliefs: “i) issue a writ of certiorari or any other appropriate writ quashing Exhibit P7 proceedings of second respondent. ii) issue a writ of mandamus or any other appropriate writ commanding second respondent to disburse pensionary dues with effect from 1/05/2001 as if application in full for pensionay benefits was submitted earlier, with 12% interest” 2. A counter affidavit has been filed on behalf of the first respondent wherein they would contend that in a Full Bench decision in State of Kerala v. Lucy Lonappan [2009 (3) KLT 673(F.B.), this Court has held that the provision that applicant will get family pension only from the date of submission of application is not arbitrary. It is also submitted that the Government themselves, considering the peculiar facts of the case, decided to sanction family pension to the petitioner with effect from 29.10.2002, which is the date of Ext.P1 medical certificate, certifying that the petitioner is a mentally retarded person. 3. I have considered the rival contentions in detail. No doubt, in the Full Bench decision in Lucy Lonappan's case (supra) this Court has held that the provision that the W.P.(C)No.1606/07 3 applicant will get family pension only from the date of submission of application is not arbitrary. But, I find that, in that decision, the Full Bench had not specifically considered the question as to the case of a person who is unable to file an application for family pension because of mental deficiency. In fact, there is a decision of a Division Bench of this court squarely covering that situation, which is Accountant General v. Shyson George [2005(2) KLT 137], wherein the Division Bench held that mentally retarded children of deceased pensioner are eligible to receive family pension from the day following the death of the pensioner and not from the date of issuance of medical certificate. The Full Bench has not chosen either to refer to or to overrule this decision. Since the Full Bench has not considered the question in the case of persons who are incapable of filing an application for family pension, the decision in Shyson George's case (supra) holds the field still. Therefore, following that decision, I hold that the petitioner is entitled to family pension from the day following the death of his mother and not from the date of issuance of the medical certificate. Accordingly, the writ petition is allowed. The respondents W.P.(C)No.1606/07 4 are directed to disburse family pension to the petitioner with effect from 1.5.2001, which is the date from which the pension became due after the death of the petitioner's mother. Orders shall be passed and arrears disbursed to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. S. SIRI JAGAN, JUDGE acd W.P.(C)No.1606/07 5