IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 R.P.No. 70 of 2008() ----------------------- AGAINST THE JUDGEMENT/ORDER IN WA.1426/2007 Dated 13/07/2007 ................................. REVIEW PETITIONER/1ST RESPONDENT IN WA: ------------------------------------------------------- P.P. MARGRET, W/O. LATE S.GEORGE, JANE COTTAGE, KANNIMELCHERRY, KAVANAD (P.O),KOLLAM BY ADV. SRI.M.V.THAMBAN RESPONDENTS/APPELLANTS & 2ND RESPONDENT IN THE WA: ------------------------------------------------------------------------- 1. THE SECRETARY, K.S.E.B. VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. CHIEF ENGINEER (GENERAL), K.S.E.B. VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 3. EXECUTIVE ENGINEER, ELECTRICAL DIVISION, K.S.E.B., KOLLAM. 4. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 TO 3 GOVT. PLEADER, SRI. K.C. SANTHOSHKUMAR THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 30/10/2008, THE COURT ON 05/11/2008 THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & ANTONY DOMINIC, JJ. = = = = = = = = = = = = = = = R.P. No. 70 OF 2008 IN W.A. No. 1426 OF 2007 = = = = = = = = = = = = = = = Dated this the 5th day of November, 2008 O R D E R Antony Dominic, J. The 1st respondent in W.A. No. 1426/07, which was disposed of by judgment dated 13.7.2007 is the Review Petitioner. 2. By the aforesaid judgment, in view of G.O.(P) No. 190/2007/Fin. dated 8.5.2007, amending Rule 90(7)(ii) of Part III, K.S.R., this Court held that the review petitioner is entitled for restoration of full family pension consequent on the death of her husband who was an employee of the Kerala State Electricity Board. However, dealing with her claim that the restoration should be with retrospective effect, referring to the provisions of the rules this Court held that the amendment introduced by the aforesaid Government Order is only prospective and therefore, the entitlement of the review petitioner for restoration of family pension is only R.P. No.70/08 in WA No. 1426 OF 2007 -2- from 8.5.2007. It is aggrieved by the judgment holding that the amendment is prospective and not retrospective, that this review petition is filed. 3. Counsel for the review petitioner contended that by the amendment effected by the Government Order dated 8.5.2007 the existing Rule 90(7)(ii) of Part III, K.S.R. was deleted and the new rule was inserted in the statute book and therefore the deletion should be held as having retrospective effect. Counsel also relied on the provisions contained in Rule 54 of the Central Civil Service Pension Rules to contend that those rules provided for restoration of family pension. He also relied on the judgment of this Court in Kunhami v. Union of India {2006(2) KLT 661} and also the judgment of a learned Single Judge of this Court in W.P.(C) No. 33059/03. 4. As already noticed the contention of the learned counsel for the review petitioner is that the provision for restoration of family pension introduced by the Govt. Order dated 8.5.2007 has retrospectivity. This contention was raised at the time when the writ appeal was considered and has been dealt with in paragraph 3 of the judgment where it has been held that there is no provision in R.P. No.70/08 in WA No. 1426 OF 2007 -3- the rule to infer that the said amendment is retrospective. On that basis it was held that the amendment is prospective and that the review petitioner's entitlement for restoration of full family pension is from 8.5.2007. 5. While dealing with the power of this Court to review judgments, it has been held by the Apex Court in various judgments that an error which is not self evident and which can be discovered by long process of reasoning cannot be treated as an error apparent on the face of the record to exercise power of review and that an erroneous order/decision cannot be corrected under the guise of the review power. (See in this connection State of West Bengal v. Kamal Sengupta {(2008)8 SCC 612}). In this case, appreciating the contentions this Court has held that the amendment is prospective. In view of the limited powers that are available, while considering the application for review, even if we are to assume that the said finding is an erroneous one, that does not justify the exercise of power of review. 6. That apart, paragraph 2 of the Government Order dated 8.5.2007 reads as follows: R.P. No.70/08 in WA No. 1426 OF 2007 -4- “As per Rule 90(7)(ii) Part III KSRs there is provision to share Family Pension between the child of the first marriage and wife/child etc., of the 2nd marriage. However, when all the children of the first marriage become ineligible, there is no provision to restore the full Family Pension to the child of the 2nd marriage. Under the existing provisions in the KSRs they will continue to get only 50% of the Family Pension even though the balance 50% is no longer payable by the Government. This is not the case in Government of India. Government therefore, propose to introduce a similar provision in KSRs to enable restoration of full Family Pension when 50% is no longer payable to the children of the first marriage.” (emphasis supplied) From this again, it is evident that until the amendment, there was no provision for restoration of full family pension and that the benefit of restoration of a newly introduced benefit. The Govt. Order or Part III K.S.R. does not provide anything to infer that the rule has retrospectivity. In such a situation, we are not in a position to accept the contention that the rule has retrospectivity. 7. When the words of the statute are clear, this Court need only give effect to the same. We also do not find any ambiguity in the rules to take assistance from the provisions contained in the C.C.S. Pension Rules. The judgment in the case of Kunhami v. Union of India {2006(2) KLT 661} dealt with the provisions of the R.P. No.70/08 in WA No. 1426 OF 2007 -5- Pension Regulation of the Army and the learned Judge of this Court has upheld the claim of the mother for restoration of full family pension in view of the provisions contained in the rules. The judgment in W.P.(C) No. 33059/03 was rendered following the aforesaid judgment. These judgments were rendered in the context of the relevant rules. Since the case of the petitioner has to be decided in terms of the provisions contained in Part III, K.S.R. and as Rule 90(7)(ii) does not admit of any ambiguity about its prospective effect, we do not think that the judgments relied on by the learned counsel for the review petitioner, are of any assistance. Review petition fails and is dismissed. PIUS C. KURIAKOSE JUDGE ANTONY DOMINIC JUDGE jan/-