IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3013 of 2009(H)
1. K.NARAYANI AMMA, W/O.LATE K.K.BALAKURUP,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE ACCOUNTANT GENERAL (A&E),KERALA
3. SUPERINTENEDENT OF POLICE, KOZHIKODE
For Petitioner :SMT.VIDHYA. A.C
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :06/03/2009
O R D E R
T.R.RAMACHANDRAN NAIR,J.
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W.P ( C) No.3013 of 2009
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Dated this the 6th March,2009
J U D G M E N T
Petitioner is the widow of one Sri.K.K. Bala Kurup,
who was a Police Constable in the Police Department and
who died while in service on 6.9.1990. She is the third
wife of the deceased and is the legally wedded wife. As
on the date of death of her husband, she had a minor son.
Civil Suits were filed by the 2nd divorced wife, her minor
daughter and his mother as O.S No.49/91 and 38/92
claiming share of family pension to them in which it was
held by the Sub Court, Vadakara that the petitioner, her
minor son and minor daughter of the deceased’s second
divorced wife are entitled to family pension. Accordingly
she was receiving 1/3rd share in the family pension.
2. Under the relevant provisions, Rule 90 (7) (ii)
(b) & (c) of Part III of K.S.R., “the contributory family
pension is admissible in case of son until he attains the
age of 25 years or till he starts earning livelihood
whichever is earlier and in the case of unmarried
daughter until she attains the age 25 years or till she
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starts earning livelihood whichever is earlier.” The
daughter of her husband’s second divorced wife was
married in the year 1997 and therefore her eligibility for
family pension ceased after the marriage. On 30.5.2006,
her minor son who was receiving family pension also
ceased to receive pension as he attained the age of 25
years. Since the representation submitted by the petitioner
to sanction full pension to her was not being attended to,
she approached this Court by filing WPC No.16092 of 2007,
wherein, by Exhibit-P1 judgment this Court directed the
Accountant General to pass orders in the matter.
3. Exhibit-P2 is the recommendation made by the
3rd respondent to the Accountant General for sanctioning
full family pension to the petitioner. Thereafter, by
Exhibit-P3 the Accountant General has passed appropriate
orders sanctioning full pension from 8.5.2007. The
petitioner is seeking arrears from the date on which the
daughter of her husband’s second wife ceased to receive
her share in the family pension.
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4. By Exhibit-P4, the Government has proposed
amendment to the Rule providing for restoration of full
family pension in the case of a claimant like the petitioner
when the other sharers ceases to get the amount. Relevant
portion of the order incorporating the amended provisions
is extracted below.
“Where the deceased employee is
survived by a widow but has left behind an
eligible son/daughter from another wife,
the eligible son/daughter will be paid the
share of Family Pension which the mother
would have received. If she had been alive
at the time of death of the employee while
sharing Family Pension between children of
1st marriage and spouse/children in second
marriage, restoration of full Family Pension
can be allowed in case where 50% is no
longer payable by the Government to the
children of first marriage/spouse or
children by second marriage.
The issue as such is covered by Exhibit-P1 judgment. In
the opening paragraph of the judgment, the submission by
the learned Government Pleader that the petitioner is
entitled to full family pension from the date on which the
other legal heirs attains majority or when the dependents
gets married is recorded. Finally it was directed that the
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petitioner shall be given the arrears due in the manner
aforementioned, within the period fixed.
5. Evidently, Exhibit-P4 is dated 8.5.2007 and
accordingly by Exhibit-P3 the benefit was restricted from
8.5.2007. Learned counsel for the petitioner submitted that
since it is by way of restoration that the petitioner is
getting full amount of family pension she should get the
shares as on the date on which they have ceased to be
made available to other sharers otherwise there will not be
any relevant principle in restricting the claim from the
date of Exhibit-P4.
6. Third respondent has filed a counter affidavit,
wherein, it is stated that going by the date of Exhibit-P4 the
benefit is available from that date. It is also submitted that
the 3rd respondent has fully complied with the directions
issued by this Court in Exhibit-P1 judgment. In paragraph
10 of the counter affidavit, the stand taken is that the
petitioner is eligible to get full family pension only with
effect from 8.5.2007 as per Exhibit-P4 Government Order
as it is not having any retrospective effect.
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7. A reading of Exhibit-P4 shows that what the
Government intends is to restore the full pension when
the other sharers become ineligible. This amendment was
proposed to be made in tune with the provisions applicable
under the Government of India. When the benefit of
restoration is sought to be made, the claimant will be
entitled for restoration from the date on which such
claimant becomes eligible to get the full pension. The words
used in the provision are “restoration of full family
pension” and hence it will necessarily have to be from an
anterior date, on which the right accrues. The right
accrues when the other shares cease to get it. The
intention of the provision is to benefit a class of family
pensioners, who were also getting a portion of the amount
sanctioned. By the new amendment they become entitled
for the shares which ceases to other sharers, which is
automatic on the happening of the said event.
8. In that view of the matter, restriction imposed in
Exhibit-P3 for sanctioning full pension only from 8.5.2007
cannot be justified.
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9. It is pointed out that the daughter of her
husband’s second wife got married in the year 1997 and
and her son attained the age of 25 years on 30.5.2006.
Hence their share of family pension ceased with effect from
5.12.1997 and 30.5.2006. Revised orders will be passed
accordingly by granting such benefit of restoration to the
petitioner from the respective dates as shown above.
Appropriate orders shall be passed within a period of two
months from the date of receipt of a copy of this judgment.
The writ petition is disposed of as above.
(T.R.RAMACHANDRAN NAIR,
JUDGE)
ma
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