IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 WP(C).No. 34083 of 2005(G) --------------------------------------- PETITIONER: ------------------- P.SANTHAMMA, ANANDA MANDIRAM, KADAKKARAPPALLY, CHERTHALA, ALAPPUZHA. BY ADV. SRI.P.RAVINDRAN (SR.), ADV. SRI.HARIKRISHNAN RAVINDRAN. RESPONDENTS: ----------------------- 1. THE ACCOUNTS OFFICER, O/O.THE DIRECTOR GENERAL, BORDER SECURITY FORCE, PAY AND ACCOUNTS DIVISION, (PIN III) SECTION, PUSHPA BHAVAN, MADANGIR, NEW DELHI. 2. DIRECTOR GENERAL, BODRER SECURITY FORCE, PUSHPA BHAVAN, MADANGIR, NEW DELHI 62. 3. THE UNION OF INDIA, REP. BY THE SECRETARY, DEPARTMENT OF HOME, NEW DELHI. ADV. SRI.M.A.HAKEEM SHAH, CGC FOR R1 TO R3. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.34083/2005-G: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE COMMUNICATION RECEIVED BY PETITIONER FROM THE COMMANDANT DTD. 20/02/1992. EXT.P.2: COPY OF THE LETTER DTD. 06/05/2000 ISSUED BY THE COMMANDANT TO THE PETITIONER. EXT.P.3: COPY OF THE COMMUNICATION DTD. 19/08/2000 BY THE COMMANDANT TO THE PETITIONER. EXT.P.4: COPY OF THE LETTER DTD. 10/02/01 ISSUED BY THE COMMANDANT TO THE ADVOCATE OF THE PETITIONER. EXT.P.5: COPY OF THE COMMUNICATION RECEIVED BY PETITIONER FROM R1. EXT.P.6: COPY OF THE JUDGMENT IN W.A. NO. 2119/2004 DTD. 04/10/05. EXT.P.7: COPY OF THE OFFICE MEMORANDUM DTD. 05/03/1998. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. prv. P.N.Ravindran, J. ================= W.P(C).No.34083 of 2005 ===================== Dated this the 12th day of August, 2008. JUDGMENT The petitioner's son late Anandakumar was a Constable in the Boarder Security Force. He entered service as Constable on 3.7.1989. On completion of training, he joined the 21 Battalion on 8.7.1990. On 29.12.1990 while on sentry duty, he died of lightning strike. The petitioner moved the respondents for grant of family pension. By Ext.P4 letter dated 10.2.2001, her counsel was informed that it has been decided to sanction pension and graded relief and that on receipt of the succession certificate, the amount would be quantified. The succession certificate was admittedly produced on 9.7.2001. However, by Ext.P5 letter, the petitioner was informed that she is not entitled to family pension for the reason that the monthly income of the petitioner and her husband was more than Rs.2,550/-. The petitioner thereupon approached this Court in O.P.No.27830 of 2001. By judgment delivered on 14.7.2004 the said Writ Petition was dismissed. The petitioner carried the matter in appeal. By Ext.P6 judgment delivered on 4.10.2005 in W.A.No.2119 of 2004, the decision of the learned Single Judge was upheld. The Division Bench observed that it will be open to the petitioner to challenge the stipulations in Ext.R1 (same as Ext.P7) on all WP(C) 34083/05 -: 2 :- available grounds. This Writ Petition was thereafter filed seeking the following reliefs: "a) call for the records leading to Ext.P7 and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction; b) declare that the petitioner is entitled to family pension and other monetary reliefs due to her as the mother of deceased BSF Constable Anandakumar;" 2. I have heard Sri.P.Ravindran, the learned Senior Counsel appearing for the petitioner and Sri.M.A.Hakeem Shah, the learned Additional Central Government Standing Counsel appearing for the respondents. The learned Senior counsel for the petitioner contended that the proceedings issued by the respondents declining family pension to the petitioner were issued under the misconception that the grant of family pension is governed by Rule 54 of the Central Civil Services Pension Rules, 1972. The learned counsel further submitted that the petitioner also proceeded on the said assumption. According to the learned Senior Counsel, the petitioner was entitled to family pension under the provisions of the Central Civil Services (Extraordinary Pension) Rules and that in the said Rules, the restriction referred to in Ext.P7 does not find a place. The learned Senior Counsel relying on the various provisions of the Central Civil Services (Extraordinary Pension) Rules contended that as there is no restriction on the monthly income in the said Rules, the petitioner's case ought to have been considered by the WP(C) 34083/05 -: 3 :- authorities in the light of the said Rules and that the authorities also were under a misconception as to which Rules govern the field. The learned Senior Counsel submitted that as even the respondents were unaware of the applicability of the said Rules, the petitioner cannot be penalised for not invoking its provisions. Per contra, the learned Standing Counsel for the respondents relying on Ext.P6 judgment of this Court in W.A.No.2119 of 2004 submitted that on the principles of constructive res judicata, the petitioner cannot claim or be granted any relief. The learned counsel for the respondents further contended that the challenge to Ext.P7 is misconceived and is not tenable. 3. I have considered the submissions made at the Bar by the learned counsel appearing on either side. It is not in dispute that as directed by the respondents, the petitioner had produced a succession certificate. However, on the ground that her monthly income exceeds Rs.2,550/-, family pension was declined to her. The pleadings, especially the counter affidavit filed by the respondents does not disclose that the claim of the petitioner for family pension under the Central Civil Services (Extraordinary pension) Rules was considered or rejected. As persons in the know of things, respondents 1 and 2 had a duty to alert the petitioner that she had the option of claiming family pension either under the Central Civil Services (Extraordinary Pension) Rules or under the Central Civil Services Pension Rules, 1972. As a matter of fact, Rule 54(4) of the Central Civil Services Pension Rules states that where an WP(C) 34083/05 -: 4 :- award under the Central Civil Services (Extraordinary Pension) Rules, is admissible, family pension under that Rule shall not be authorised. 4. On the materials on record I am satisfied that the claim made by the petitioner did not receive serious attention at the hands of the respondents. Whether the petitioner was eligible for family pension under the Central Civil Services (Extraordinary Pension) Rules was never considered by the respondents. The issue regarding the entitlement of the petitioner to receive family pension under the Central Civil Services (Extraordinary Pension) Rules was neither considered nor rejected by this Court in Ext.P6 judgment. Therefore, notwithstanding the finality attached to Ext.P6 judgment which in my opinion disentitles the petitioner from claiming pension under the Central Civil Services Pension Rules only, her entitlement to claim and receive family pension under the Central Civil Services (Extraordinary Pension) Rules deserves to be considered by the respondents. 5. I therefore dispose of the Writ Petition with a direction to the respondents to consider the claim made by the petitioner for family pension in the light of the provisions contained in the Central Civil Services (Extraordinary Pension) Rules. A decision in this regard shall be taken within three months from the date of receipt of a copy of this judgment. As the petitioner has already produced the succession certificate on 9.7.2001 (vide paragraph 5 of the counter affidavit filed on behalf of the respondents) in the event of the petitioner being found WP(C) 34083/05 -: 5 :- eligible for family pension under the Central Civil Services (Extraordinary Pension) Rules, the arrears of family pension shall be disbursed within one month after a decision is taken in the matter. The respondents shall, if the petitioner is found eligible, also continue to pay her family pension during her life time. The Writ Appeal is disposed of as above. No costs. P.N.Ravindran, Judge. ess 13/8