IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 2ND FEBRUARY 2011 / 13TH MAGHA 1932 WP(C).No. 28468 of 2008(L) -------------------------- PETITIONER(S): --------------- 1. M.R. KARUNAKARAN, S/O. RAMAN, AGED 80, MAYITHARA MATTATHIL HOUSE, MAYITHARA MAYITHRA MARKET.P.O, KANJIKUZHI VILLAGE, CHETHALA TALUK, ALAPPUZHA DISTRICT. 2. T.G. SARASAMMA, W/O. KARUNAKARAN, AGED 70, -DO- BY ADV. DR.V.N.SANKARJEE SMT.R.UDAYA JYOTHI SRI.V.N.MADHUSUDANAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, FINANCE (PWC A) DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE SECRETARY TO GOVERNMENT, REVENUE (T) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 4. THE ACCOUNTANT GENERAL (A&E), KERALA, INDIAN AUDIT AND ACCOUNTANT DEPARTMENT, THIRUVANANTHAPURAM-695 039. 5. THE DISTRICT COLLECTOR, ALAPPUZHA. GOVERNMENT PLEADER SHRI.M.K.MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2.2.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 28468/2008 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE PUBLIC NOTICE DTD.25.1.06. P2. COPY OF THE ORDER DTD.10.8.06 OF R5. P3. COPY OF THE LETTER DTD.14.8.06 OF R5. P4. COPY OF THE LETTER DTD.4.12.06 OF R4. P5. COPY OF THE LETTER OF R5 DTD.27.12.06. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 28468 of 2008 ================== Dated this the 2nd day of February, 2011 J U D G M E N T The petitioners are parents of late Mr.Sajithkumar, who died on 10.11.1998, while working as a Village Officer in the Revenue Department of the Government of Kerala. He left behind him, apart from the petitioners, his wife. The couple had no children. The wife was being paid family pension as per the order dated 14.9.1999. The wife got remarried on 11.12.2005. Thereafter, the 5th respondent sanctioned family pension to the 1st petitioner, by Ext.P2 order, and forwarded the same to the 4th respondent for verification. By Ext.P4, the 4th respondent replied that the 1st petitioner is not eligible for family pension in view of sub rule (6A) (i) of Rule 90 of Part III of KSR. The petitioners filed this writ petition challenging Ext.P4 as well as the constitutional validity of clause 6A(i) of Rule 90 of Part III of KSR, seeking the following reliefs; “i) Issue appropriate writ, direction or order declaring that note 1 to sub rule (6) of Rule 90, condition (i) under clause (1) to sub rule (6A) of Rule 90, and sub rule (9) of Rule 90 of K.S.R. Part III are unconstitutional; ii) Issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Exhibit P4 and P5 and quash the same; iii) Issue appropriate writ, order or direction declaring that the petitioners are entitled to family pension as provided under Rule 90 of the K.S.R. Part III. iv) Issue a writ of mandamus or any other appropriate writ or order directing the respondents to sanction and pay family pension to the petitioners.” w.p.c.28468/08 2 2. A counter affidavit has been filed on behalf of the 2nd respondent supporting Ext.P4. 3. I have considered the rival contentions in detail. 4. Sub rule 6A of Rule 90 of Part III of KSR reads thus; “(6A) Notwithstanding anything contained in sub-rule 6 above. (1) Contributory family pension will be admissible to the parents of the deceased Government employee if they were solely dependent on the deceased for maintenance and they have no other source of income or support for maintenance, and even in cases where the parents have an independent source of income of less than Rs.2,400 per annum and they were partly dependent on the deceased for maintenance and there are other extenuating circumstances, subject to the following conditions: (i) The employee was unmarried at the time of his/her death or if married, he/she had no wife/husband or minor children at the time of death. (ii) The parents of the deceased Government employee have no other living sons/daughters who are well placed, and the husband/wife, as the case may be of the beneficiary is also not well placed in life. (iii) Only one family pension will be payable to a person under this rule even if there may be claim for more than one family pension on account of death of more than one son or daughter. (2) The Contributory Family Pension shall be payable to parents in equal shares and on the death of either one of the recipients, his/her share shall be payable to the surviving member. (3). *** *** *** (4) The family pension under this rule is payable with effect from 20th March, 1969 to the parents of the Government employees who died while in service or after retirement on or after 1st April, 1964. (5) The family pension under this rule will be sanctioned by Government. (6) Eligibility for contributory family pension will be determined on the basis of the report (in the form in Annexure -I) of the Tahsildar of the Taluk in which the person lives. For the continued payment of family pension the person entitled to the pension shall produce at the treasury one year after the date of commencement of the family pension an annual certificate (in the form in Annexure II) w.p.c.28468/08 3 from the Tahsildar or a gazetted employee of the locality.” As far as the challenge to the validity of the rule is concerned, I do not think that the petitioners can challenge the same on the ground of unconstitutionality. Payment of family pension is not a right. The petitioners became eligible for family pension only because the rules provide for the same. If that be so, the petitioners have to seek the benefit of the rules in terms of the rules themselves including the restrictions contained therein. 5. Still I have to consider whether the language of sub rule (6A) would totally disentitle the parents from receiving family pension on the re-marriage of the wife. If there was no wife, naturally the parents would have been entitled to family pension automatically. The parents are included as part of the family along with the wife, and denial of family pension to the parents, if the wife is living, is obviously because of the assumption that the wife would look after the parents of the deceased Government servant also. The ultimate object of the same is to see that the parents do not go destitute on account of the death of their son. If the wife re-marries, the position as far as the parents are concerned is that of no wife mentioned in sub rule 6A(i). In the said circumstances, I am of opinion that the said rule should be read down to mean that the parents would be entitled to the family pension if the wife remarries and becomes disentitled for family pension. I am of the further opinion that by adopting such an w.p.c.28468/08 4 interpretation, the Government does not incur any additional expenditure insofar as what the Government pays to the parents is the family pension which was hitherto being paid to the wife, which would have been continued to be paid, if the wife had not re-married. In that view, I am inclined to set aside Ext.P4. Accordingly, Ext.P4 is set aside. If the 1st petitioner is eligible for family pension but for the interpretation put by the 4th respondent on sub rule 6A(i), the 4th respondent shall authorise payment of family pension to the 1st petitioner. If the 1st petitioner has to comply with any other conditions for receiving family pension, the 5th respondent shall inform the 1st petitioner accordingly within two weeks from the date of receipt of a copy of this judgment. On receipt of the same, the 1st petitioner shall comply with the said directions and submit the necessary papers before the 5th respondent. The 5th respondent shall forward the same to the 4th respondent-Accountant General, within two weeks of the 1st respondent complying with the formalities, if any. On receipt of the same, the Accountant General shall pass orders authorising the family pension to the 1st petitioner and the respondents shall pay the same to the 1st petitioner, within another month from the date of receipt. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.28468/08 5