IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 WP(C).No. 3319 of 2007(T) PETITIONER: JUVANA PIOUS, AGED 60 YEARS, W/O.LATE PIOUS.P.B., IV/1446, PUTHENPARAMBIL, ADHIKARAVALAPPU, KOCHI-1. BY ADV. SRI.P.K.RAVISANKAR RESPONDENTS: 1. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY (FINANCE), THIRUVANANTHAPURAM. 2. ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.A.J.VARGHESE FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 3319 of 2007(T) APPENDIX PETITIONER'S EXHIBITS: Ext.P1: Copy of the letter dated 7-7-2004 issued by the petitioner to the Deputy Director of Education, Thiruvananthapuram. Ext.P2: Copy of Pension payment Order issued by 2nd respondent dated 23.1.2006. Ext.P3: Copy of representation dated 23-2-2006 issued by petitioner to the 2nd respondent. Ext.P4: Copy of the communication No.P-1/Pen A/646/AA/82- 83/1369 dated 6-4-2006. Ext.P5: Copy of the letter No.70405/Pen.A2/06/Fin. dated 2-1-2007. // True copy // P.A. to Judge jes A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.3319 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of March 2008 JUDGMENT Is Ext.P5 order issued by the Government rejecting the claim of the petitioner for arrears of family pension from May 6, 1983 till May 21, 2005 illegal and unsustainable? 2. Relevant facts may be briefly noticed. 3. Petitioner's late husband P.B.Pious retired on July 31, 1981 from the service of Cochin College, an aided institution while he was working as Watchman. Late Pious was recipient of service pension till his death on May 5, 1983. According to the petitioner, she had not submitted any application for family pension, since she was told by the colleagues of her husband and other staff of the college that she was not eligible to get the same. But petitioner claimed that during 2004 she came to know about her eligibility to receive the pension. Therefore, she submitted Ext.P1 application in July 2004. By Ext.P2 order dated January 23, 2006 respondent No.2 sanctioned family pension to the petitioner with effect from May 22, 2005. Though the W.P.(C)No.3319 OF 2007 :: 2 :: petitioner submitted Ext.P3 representation before respondent No.2 requesting for grant of pension with effect from May 6, 1983, the said request was turned down by the Government as revealed from Ext.P5 order. 4. Petitioner contends that Ext.P5 order is ex-facie illegal and unsustainable. She prays for issuance of a writ of certiorari to quash Ext.P5 and also prays for issue of a writ of mandamus or such other appropriate writ or direction to the respondents to grant family pension to her starting from the next day of her husband's death till the date from which she had subsequently been granted pension under Ext.P2. 5. In the counter affidavit filed on behalf of respondent No.1, it is pointed out that late Pious had not nominated the petitioner as his beneficiary in the relevant document. In fact petitioner's husband had noted “no beneficiary” in the column for nomination provided in the pension application. Petitioner's husband had passed away on May 5, 1983. For more than 22 years, the petitioner had not made any claim for family pension. W.P.(C)No.3319 OF 2007 :: 3 :: However, on receipt of her application dated May 22, 2005 her request was considered by the Government and family pension was sanctioned from the date of her application. It is asserted by respondent No.1 that petitioner had been working abroad ever since 1984. Presumably she had submitted the application for family pension after her return from abroad. Reference has also made to circular No.3/2000/Fin. dated 17-1-2000 in the counter affidavit, in which it has been stipulated that arrears of pension can be sanctioned only after availing of all avenues envisaged in Rule 129(b) Part III KSR to draw pension through some authorised person. It is also contended that liberalised family pension can be sanctioned only with effect from the date of submission of application with all relevant records. 6. Before dealing with the relevant statutory provisions and circulars governing the field relating to grant of family pension to eligible legal heirs of the deceased pensioner, it has to be at once noticed that petitioner is guilty of suppression of material facts. It can atleast be stated without fear of contradiction that the W.P.(C)No.3319 OF 2007 :: 4 :: petitioner has not placed all the relevant facts before the court while seeking reliefs from this court in exercise of the discretionary jurisdiction under Article 226 of the Constitution of India. As indicated earlier, it has been averred by the petitioner in the writ petition that she had not filed any application for family pension on the death of her husband since his colleagues and other members of staff had informed her that she was not eligible to get it. The specific case of the petitioner is that during 2004 she came to know that she was eligible to receive the pension. 7. In the counter affidavit respondent No.1 had specifically contended that petitioner was employed abroad since 1984. Learned counsel for the petitioner admitted that the petitioner had been working in the United States of America as Nurse and she came back to the country sometime during 2004. There was not even a whisper in the writ petition about her employment in the U.S.A. She wanted this court to believe that she had remained a helpless and hapless widow all these years eversince W.P.(C)No.3319 OF 2007 :: 5 :: the death of her husband. 8. The Government had accorded sanction for grant of family pension to the petitioner from May 22, 2005, the date on which she had submitted the application in this regard. Eventhough respondent No.1 had asserted that petitioner had been working abroad since 1984, petitioner has not chosen to deny or controvert the same for obvious reasons. Petitioner now wants arrears of family pension from 1983, in the above backdrop of the case. 9. It is true that family pension is not a bounty of the State. It is a statutorily recognised right available to the family of a deceased employee as enumerated in Rule 71 Part III KSR, subject to the satisfaction of the eligibility criteria stipulated in the relevant Rules. It is also trite that the statutorily recognised right to receive pension cannot be taken away by any executive order, circular etc. But the question that has cropped up in this writ petition is whether in the peculiar facts and circumstances the petitioner is legitimately entitled to claim arrears of family W.P.(C)No.3319 OF 2007 :: 6 :: pension with effect from the next day of her husband's death. 10. It has to be noticed at once that Clause IV of Rule 123 Part III KSR postulates that on the death of a pensioner on any day during the course of a month, family pension, if eligible under the Rules, shall commence from the first day of the succeeding month and it shall become payable on or after the first day of the month following that to which it relates. Therefore, the claim made by the petitioner that she is entitled to get pension from the succeeding day of her husband's death cannot, at any rate, be sustained at all. 11. It is not in dispute that petitioner had not claimed family pension for nearly 22 years after the death of her husband. Government had nevertheless granted her pension from the date of her application viz. May 22, 2005. In this context, it is worthwhile to note that under Rule 135 Part III K.S.R. the pension payable to a pensioner ceases to be payable, if the pension remains undrawn for more than three years. Rule 126 enables a pensioner, specially exempted by the Government from W.P.(C)No.3319 OF 2007 :: 7 :: personal appearance, and also certain other catagories of pensioners, to receive his or her pension upon production of a life certificate signed by a responsible officer of the Government or by some other well known and trustworthy person enumerated in the said Rule. Rule 129 further enables a pensioner to draw his pension through a duly authorised agent possessing legally valid Power of Attorney who must produce a life certificate referred to in Rule 126. 12. It is undoubtedly true that Rule 136 empowers the Government to release the arrears of pension to a pensioner which had remained undrawn. Rule 138 mandates that on the death of pensioner/family pensioner, payment of any arrears actually due may be made to his heirs/nominee without obtaining fresh sanction from the sanctioning authority. But the above rule will not apply in the case of the petitioner because admittedly no arrears remained unpaid to petitioner's husband. Petitioner was not a nominee either. It cannot of course be disputed that no specific time limit has been prescribed to claim family pension by W.P.(C)No.3319 OF 2007 :: 8 :: the legal heir of a deceased pensioner. But the provisions contained in the Rules referred to above, which of course deal with payment of pension to a retired employee, will in my view, squarely apply mutatis mutandis, to family pension as well. 13. Learned counsel for the petitioner, while inviting my attention to a decision of the apex court in Deokinandan Prasad V. State of Bihar and others [1971 (2) SCC 330] has contended that the Government has no discretion in the matter of payment of pension, which is governed by the Rules. It is also contended by the learned counsel that the right to receive pension is recognized under the Constitution and therefore the said right cannot be taken away or interfered with by any whimsical order of the Government. In the case referred to above, the question that came up before their Lordships was entirely in a different context. Having perused the judgment carefully, I have no hesitation to hold that the dictum laid down in that case has no application to the case on hand. 14. The other decision that has been pressed into service by W.P.(C)No.3319 OF 2007 :: 9 :: the petitioner is Loka Ram V. Haryana State Electricity Board and another [1995 (5) SLR 566]. In that judgment, a learned single Judge of the Punjab and Haryana High Court had held that the mere fact that the pensioner had not claimed the pension for a long time did not mean that his rights had since been extinguished. The petitioner in that case had approached the court praying for issue of a writ of mandamus to the respondents to consider his claim for grant of pension after taking into account the period of service rendered by him on work-charge basis. The respondents had resisted the claim on the ground that it was highly belated and also that service rendered on work-charge basis could only have been taken into consideration under the Service Bye-laws of Board. The question of delay in the above case had arisen in totally different circumstances. Therefore, the above decision also will have no application in this case. The unreported decision (W.P.(C) 16918/06) which has been cited before me cannot also advance the case of the petitioner. W.P.(C)No.3319 OF 2007 :: 10 :: Having regard to the totality of the facts and circumstances of the case particularly in view of the provisions contained in the relevant rules referred to above, I am not satisfied that the petitioner is entitled to get any relief in this writ petition. In my view, the Government was justified in restricting the claim of the petitioner for family pension only with effect from the date of the application. There is no illegality or irregularity in Ext.P5 order. Therefore, the writ petition is dismissed. (A.K.BASHEER, JUDGE) jes