IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 WP(C).No. 24826 of 2008(E) -------------------------------- PETITIONER: -------------- A.P.SAROJINI, AGED 56 YEARS, W/O.LATE IMBICHUNNI, ATHIPARAMBATHU HOUSE, AZHINHILAM, VIA. FEROKE COLLEGE, MALAPPURAM. BY DR.GEORGE ABRAHAM, ADVOCATE. RESPONDENTS: ------------------ 1. ACCOUNTANT GENERAL, O/O.THE ACCOUNTANT GENERAL (A&E), M.G.ROAD, PB.NO.5607, THIRUVANANTHAPURAM - 39. 2. DIRECTOR OF TECHNICAL EDUCATION O/O.THE DIRECTOR OF TECHNICAL EDUCATION THIRUVANANTHAPURAM. 3. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT GOVERFNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY MR. K. RAMESH, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.24826/2008 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF ORDER ISSUED BY PRINCIPAL, GOVT. POLYTECHNIC, PERINTHALMANNA DTD. 14.12.1987. EXT. P2 : COPY OF ORDER ISSUED BY R2 DTD. 22.7.2000. EXT. P3 : COPY OF ORDER OF R2 DTD. 1.11.2006. EXT. P4 : COPY OF PETITIONER'S REPRESENTATION TO R1 DTD. 3.10.07. EXT. P5 : COPY OF COMMUNICATION DTD. 12.3.08 ISSUED BY R1. EXT. P6 : COPY OF ORDER ISSUED BY R2 DTD. 2.1.08. EXT. P7 : COPY OF ORDER DTD. 3.4.08 ISSUED BY R3. EXT. P8 : COPY OF GOVERNMENT ORDER No.760/97/FIN. DTD. 6.9.1997. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.24826 OF 2008 --------------------------------------- Dated this the 24th day of July, 2009. J U D G M E N T The petitioner is the widow of late A.Imbichunni who was a full time sanitary worker. Originally he was appointed as a part time Sweeper on 15.12.1987 in the Technical Education Department and he continued as such till 15.08.2000, and thereafter promoted to the post of full time sanitary worker on 16.08.2000. He retired from service on 31.05.2002 on attaining the age of superannuation. He died on 18.01.2003 after drawing the pension for a period of less than 8 months. 2. The petitioner applied for sanction of family pension and by Exhibit P3 it was sanctioned. Since the petitioner did not obtain any authorization for withdrawal of the amount, Exhibit P4 representation was filed. Thereafter, by Exhibit P5 it was informed by the 1st respondent that since the petitioner's husband was granted ex-gratia pension under the Ex-gratia Pension Scheme, the petitioner is not entitled for getting family pension. W.P.(C) No.24826/2008 2 3. The petitioner has produced Exhibit P6 which is the letter dated 02.01.2008 addressed by the Director of Technical Education to the Government stating the details as to the eligibility of family pension to the petitioner. But, still by Exhibit P7, the matter was decided against the petitioner, which is under challenge in this writ petition. 4. Exhibit P8 is the order issued by the Government dated 06.09.1997 wherein minimum family pension has been sanctioned to legal heirs of part time contingent employees. Alternatively, it is contended that atleast the petitioner may be granted the benefit available under the said order. 5. Learned counsel for the petitioner submitted that going by Exhibit P3 it was found that the petitioner is entitled for family pension. It is further pointed out that the objection taken by the Accountant General cannot be sustained especially in view of the fact that sanction of ex-gratia pension was without any option submitted by the deceased husband of the petitioner and the entire details regarding the eligibility restated in Exhibit P6 have not been considered by the Government while passing Exhibit P7. W.P.(C) No.24826/2008 3 6. The 2nd respondent has filed a counter affidavit in the writ petition. Going by the averments in the counter affidavit, it is evident that the Institution Head of the petitioner's husband applied for ex-gratia pension for his employee Sri.Imbichunni as he had only 8 years of qualifying service taking into account his part time service and full time service together which is less than 10 years of qualifying service required for service pension. It was in this circumstance, ex-gratia pension was granted. It is submitted in paragraph 6 of the counter affidavit that if the Institution Head had requested to sanction service pension and family pension to the petitioner on the basis of G.O.(P) No.356/94/Fin dated 27.05.1994 and G.O.No.760/97/Fin dated 06.09.1997 the 2nd respondent might have admitted it. In this case, instead of applying service pension and family pension under G.O.(P) No.356/94/Fin dated 27.05.1994 Institution Head of the petitioner's husband applied for ex-gratia pension. 7. It is evident from the averments in the counter affidavit that the deceased had not opted to have ex-gratia pension. It was proposed by the Head of the Institution. Therefore, the W.P.(C) No.24826/2008 4 question is whether the petitioner can be denied the benefit of family pension in such a situation. 8. Now the eligibility of the petitioner for family pension is evident from Exhibits P3 and P6. The benefit can be denied only for valid reasons. Exhibit P8 shows that family pension and invalid pension could be sanctioned to part-time contingent employees. It is true that the persons who have been granted ex-gratia pension may not be entitled for family pension. But, in this case, it was not the choice of the deceased by which ex- gratia pension was sanctioned to him. 9. Therefore, the matter will be reconsidered by the Government in the light of Exhibits P6 and P8. The Government will also consider the fact that the deceased was only a part time Sweeper at the time of his entry in service and had been promoted to the post of full time sanitary worker on 16.08.2000. He was a lowly paid employee. 10. The petitioner has submitted that she is not having any sufficient income also to lead the family life after the death of her husband. It is pointed out that she is living in a pathetic W.P.(C) No.24826/2008 5 condition. Therefore, it will be a fit case wherein the Government could consider these aspects and sanction family pension as a special case even by granting exemption/relaxation from the provisions of G.O.(P) No.1851/99/Fin. dated 18.09.1999. Therefore, Exhibit P7 is quashed. There will be a direction to the Government to reconsider the matter in the light of Exhibits P3 and P6. The benefit claimed by the petitioner by way of Exhibit P8 also will be considered and appropriate orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp