State of Kerala and Others vs Bhanumathy

K.A. Abdul Gafoor, J.—State is in appeal aggrieved by the order in R.P. No. 307/05 directing the Appellant to disburse family pension due to the mother of the writ Petitioner with effect from 13-6-1988.

It is contended by the Govt. pleader that as the incumbent who retired was not receiving any family pension, his widow was not entitled even to the liberalised family pension in terms of Rule 90, Part III, K.S.R. It is further contended that daughter of the widow, who was entitled for family pension, is not eligible to claim the arrears.

Few facts are required to appreciate these contentions. The father of the writ Petitioner was in service in a school managed by the erstwhile Malabar District Board. He served in that school during the period from 4-6-1948 to 15-10-1955, the date of retirement. At that time even the Kerala State had not been formed. The school was managed by the Malabar District Board. The service there was not pensionable. There was contributory provident fund scheme there. After his retirement he was re-employed in an aided school on 17-10-1955 and retired from service on attaining the age of 60 years on 31 -3-1961. By that time Karala State had been formed and the Kerala Education Act and Rules were also enforced. But he did have only less than six years service to his credit. It was not sufficient to earn pension. Therefore he was not a Kerala Government pensioner. He died. It was far later than that a liberalised Family Pension Scheme was introduced as is revealed by Rule 90, Part III, K.S.R. The members of family of certain Kerala pensioners who retired before the introduction of liberalised family pension were not covered by that scheme. The Government considered this aspect and issued Ext. R-1 (a) Govt. Order, dated 11-2-1986. By reason of this the members of family of those Kerala pensioners who retired or died before the introduction of the liberalised family pension also became entitled to family pension with effect from 1-1-1986. Even though the father of the Petitioner died on 26-11-1961, he did not come within its purview, as he had not been a pensioner. Any how Government in Ext. P-5 dated 2-2-1993 issued orders granting the mother or the Petitioner, the widow of the retired teacher, family pension at the minimum eligible rate. She came before this Court seeking arrears from June, 1988 to February, 1993. On her death, the daughter, die writ Petitioner got impleaded. The writ petition was dismissed holding that as the retired teacher was not a Kerala pensioner, his wife was not entitled to family pension with effect from 1988. Thereupon a review petition was filed. The review petition was allowed directing payment of arrears from 13-6-1988 relying on Rule 14J, Part III, K.S.R. It is in the above circumstances this Writ Appeal has been filed by the State.

It is contended by the Government Pleader that the said rule does not have application in the matter of grant of family pension. The teacher, after whose death his wife claimed family pension, was not a pensioner. Therefore the case is not covered by Rule 90 and other provisions relating to grant of family pension. The Government Pleader also contends that as the family pensioner also had died and the claimant before this Court being his daughter is not entitled to claim the arrears in terms of Rule 90(9A) of Part III, K.S.R., as it stood then.

On the other hand it is submitted by the present writ Petitioner that, what she claims is the entitlement of her mother who died while prosecuting the Original Petition. Therefore Rule 90(9A) is not applicable to the situation. She is entitled to arrears from June, 1988 onwards because her mother had applied in time on 30-6-1988, immediately after Ext. R-1(a) Government order had been issued, further liberalising the rule regarding family pension. Ext R-1(a) was happened to be passed on 11-2-1986 because the members of family of certain Kerala pensioners who died before the introduction of the liberalised Family Pension were not entitled to get family pension. Ext. R-1(a) therefore brought within the coverage of Rule 90, those members of family of the pensioners, who retired or died before the introduction of the liberalised Family Pension with effect from 1-4-1964. So mere is nothing for interference, it is submitted.

As the teacher in this case retired on 31-3-1961 without the required minimum of service to earn pension, he was not getting any pension. Being thus not a pensioner, he was not covered by the liberalised Family Pension brought into force with effect from 1-4-1964. He also being thus not a Kerala pensioner was not covered by Ext. R-1(a) as well, though he died prior to the introduction of the liberalised family pension rules. So his case is not covered by Ext. R-1(a). Later Ext. R-1(a) was further modified by issuing G.O. (P) No. 503/92 dated 18-8-1993 to cover those employees of aided school who died in harness or retired before the introduction of the pension rules in K.E.R. As the liberalised family pension is again thus extended even to those who were not getting family pension, necessarily his widow became covered by the liberalised family pension rules to get family pension. This was effective only from 18-8-1992. Necessarily, the mother of the writ Petitioner was not entitled to get arrears as directed in the reviewed Judgment from 1988. But at the same time, her mother was entitled to get pension from 18-8-1992, the date of the order G.O. (P) No. 503/92, by which she became entitled to family pension.

The contention of the Govt. Pleader that going by sub Rule (9A) of Rule 90, Part HI, K.S.R., the writ Petitioner being the daughter of the family pensioner is not entitled to receive arrears of family pension cannot be accepted. The said provision reads:

Where the person eligible to receive family pension dies before receiving the same, the arrears, if any, due to him/her shall be given to the person, if any, who is living and is entitled to receive family pension on the date of the issue of the order sanctioning family pension.

By reason of this provision, on death of the ''family pensioner'', whatever amount due to him/her towards arrears accrued during his/her life time shall be paid to that member of the family who was entitled to receive family pension. Because, there may be more than one person eligible for family pension on death of a pensioner, e.g. wife and minor daughter. If one of them is dead before disbursal of the arrears accrued, it shall be given to the surviving family pensioner. It is the effect of Rule 90(9A), Part III, K.S.R. But in case no one else is entitled to family pension, on the death of the only family pensioner; the amount accrued to that deceased as arrears of family pension shall have necessarily to be disbursed to the legal heirs. The only legal heir of the widow in this case is her daughter, the present Petitioner. Necessarily, she will be entitled to the arrears with effect from 18-8-1992 to 2-2-1993. The amount so payable shall be paid at any rate within 4 months.

Appeal is allowed thus, in part.