IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 WP(C).No. 21017 of 2008(B) -------------------------------------- PETITIONER: ------------------- K.N.VALSALA, W/O M.R. RAGHAVAN, MADATHEDATH HOUSE, KEEZHILLAM P.O., ERNAKULAM DISTRICT. BY ADVS. SMT.REENA ABRAHAM, SRI.D.B.BINU, SRI.SUNIL NAIR PALAKKAT, SRI.K.N.ABHILASH, SMT.R.LEELA. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO HEALTH & FAMILY WELFARE DEPARTMENT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY FINANCE, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 4. SUPERINTENDENT, TALUK HEAD QUARTERS, MUVATTUPUZHA. 5. THE DISTRICT MEDICAL OFFICER, DISTRICT MEDICAL OFFICE, ERANKULAM. 6. MEDICAL OFFICER IN CHARGE, PRIMARY HEALTH CENTRE, RAYAMANGALAM, ERNAKULAM. R1 TO R6 BY GOVERNMENT PLEADER SRI. MOHAMMED FAZIL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.21017/2008-B: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE SANCTIONING ORDER ISSUED BY THE R.2. DTD. 16/09/1995. EXT.P.2: COPY OF THE ORDER GO.(P).S91/97/FIN. DTD. 17/06/1997 WAIVERING THE LIABILITIES OF GOVERNMENT EMPLOYEES WHO DIE IN HARNESS. EXT.P.3: COPY OF THE G.O.(P).NO.S91/97/FIN. DTD. 02/09/1997 ISSUED BY THE R.1. EXT.P.4: COPY OF THE ORDER DTD. 27/10/1997 CLARIFYING THAT THE BENEFIT OF EXHIBIT P.2. WOULD BE AVAILABLE TO ALL OUTSTANDING LIABILITIES PENDING SETTLEMENT AS ON 17/06/1997. EXT.P.5: COPY OF THE CLARIFIED ORDER, G.O.(P).NO.1932/97.FIN. DTD. 17/08/1995 ISSUED BY THE R.2. EXPLAINING OUTSTANDING LIABLITIES. EXT.P.6: COPY OF THE AFFIDAVIT DTD. 27/03/2001 SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT. EXT.P.7: COPY OF THE ORDER DTD. 23/11/2001 ISSUED BY THE R.1. ADDRESSING THE R.3. EXT.P.8: COPY OF THE REPRESENTATION DTD. 05/12/2006 SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE MINISTER FOR HEALTH AND FAMILY WELFARE. EXT.P.9: COPY OF THE COMMUNICATION DTD. 25/01/2007 ISSUED BY THE R.5. ADDRESSING THE R.3. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.21017 OF 2008 (B) -------------------------------------------------- Dated this the 25th day of June, 2010 J U D G M E N T Petitioner's husband Late M.R. Raghavan was a Pharmacist in the Taluk Head Quarters Hospital, Muvattupuzha. Sri. Raghavan died in harness on 24th January, 1996. Before his death, he availed of a loan for Rs.62,500/- for the construction of a building for residential purposes. Ext.P1 is the proceedings of the 3rd respondent, sanctioning the said loan. As per Ext.P1 order, the first installment was payable in July, 1996 and before the said date, Sri. Reghavan breathed his last. 2. Ext.P2 Government Order dated 17.6.1997 provided that, as a measure of compassion to the families of prematurely deceased Government employees, State Government are pleased to order that in the unfortunate event of a Government employee dying in harness, his liabilities due to Government up to Rs.2 lakhs will be written off. It is also provided that such liabilities will include house building advance availed of by the deceased employee. This order was clarified by Ext.P3 Government Order dated 2.9.1997, stating WPC.No. 21017/08 :2 : that Ext.P2 Government Order will be applicable to cases of dying- in-harness cases prior to 17.6.1997 and that liabilities in respect of death occurring prior to 17.6.1997 will be recovered as usual. Ext.P2 and P3 were again clarified in Ext.P4 Government Order dated 27.10.1997 to the effect that the benefit contemplated in Ext.P2 will be available to all cases of outstanding liabilities pending settlement as on 17.6.1997. Again yet another clarificatory Order dated 17th August, 1998 was issued, a copy of which is Ext.P5 and in paragraph 5 thereof the expression “outstanding liabilities” occurring in paragraph 4 was clarified in the following manner. 5. Outstanding liabilities shall be the liabilities outstanding as on 17.6.1997 while the remittances of instalments were going on in usual course as per the conditions of the sanction order and the amount to be so written off shall be determined after deducting the amount already repaid. 3. Petitioner claimed benefit of waiver available in the event of death which have occurred after 17.6.1997. Further representations made by the petitioner also did not yield any relief. It is in these circumstances complaining that for recovery of the liability amount due, the DCRG due to the deceased is withheld, the writ petition is filed. WPC.No. 21017/08 :3 : 4. The stand of the Government as reflected in the counter affidavit filed is that the purport of paragraph 5 of Ext.P5 clarifying Exts.P2, P3 and P4, is that the benefit of waiver is available only in the case of liabilities where the repayment had already commenced prior to 17.6.1997. The question that arises for consideration is whether Ext.P5 to the extent it provides that the benefit of waiver as provided in Exts.P2 to P4, will be available only in cases where repayment has started before 17.6.1997 is reasonable or not. 5. As already seen, in Ext.P2, the Government as a measure of compassion to the families where the government employee had a premature death, ordered that liabilities up to Rs.2 lakhs will be written off. The liability includes loans availed of towards house building advance as well. Although this has been clarified by Ext.P3 that the benefit of Ext.P2 will be available to cases where death had occurred on or after 17.6.1997, the cut off date in Ext.P3 is seen to have been diluted in Ext.P4, where Exts.P2 and P3 were clarified that the benefit of Ext.P2 will be available to all liabilities pending settlement as on 17.6.1997. Therefore going by Ext.P4, if as on 17.6.1997 the liabilities are outstanding against the deceased, the WPC.No. 21017/08 :4 : family is entitled to the benefit of Ext.P2 as contemplated in Ext.P4. Ext.P1 loan was availed of as early as on 16.9.1995. Therefore, as on 17.6.1997, the liability was outstanding, and therefore, the petitioner is eligible for the benefit if Ext.P4 remained in force. However, in Ext.P5 the expression “outstanding liability” occurring in Ext.P5 has been clarified to include only those liabilities where the repayment had started as on 17.6.1997. In my view, when the purpose of the scheme is to give waiver the liabilities outstanding as on 17.6.1997, the question whether the repayment has already commenced before 17.6.1997 or whether the repayment was due after 17.6.1997 is immaterial. Therefore, Ext.P5 to the extent it clarifies that the outstanding liabilities, as mentioned in Ext.P4 will take in only those liabilities where repayment had started as on 17.6.1997 is irrational and in fact destroys the very purpose of the scheme and therefore is unsustainable. Since as on 17.6.1997, the liability incurred by the petitioner by Ext.P1 was outstanding, her case is covered by the scheme, and hence, there will be a declaration that the petitioner will be entitled to the benefit of waiver as available in Exts.P2 to P4. WPC.No. 21017/08 :5 : 6. Therefore, there will be a direction to the 3rd respondent to pass orders extending the benefit of Exts.P2 to P4 to the petitioner, release the title deeds that are mortgaged and disburse the DCRG that is due to the petitioner. This shall be done as expeditiously as possible and at any rate within 8 weeks from the date of production of a copy of the judgment. Writ Petition is disposed of. (ANTONY DOMINIC) JUDGE vi/