IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28468 of 2008(L)
1. M.R. KARUNAKARAN, S/O. RAMAN,
... Petitioner
2. T.G. SARASAMMA, W/O. KARUNAKARAN,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE SECRETARY TO GOVERNMENT,
3. THE SECRETARY TO GOVERNMENT,
4. THE ACCOUNTANT GENERAL (A&E),
5. THE DISTRICT COLLECTOR,
For Petitioner :DR.V.N.SANKARJEE
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :02/02/2011
O R D E R
S.SIRI JAGAN, J.
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W.P.(C).No. 28468 of 2008
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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.”
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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
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