The Secretary, Chief Engineer (General) and Executive Engineer vs P.P. Margrett and State of Kerala

Antony Dominic, J.—The question that arises for consideration is regarding the claim of the first respondent for full family pension that is due on account of the death of her husband while in the service of the appellants. It is stated that late S. George was an employee of the appellants and was a subscriber to the Contributory Family Pension Scheme. At the time of death, apart from the first respondent, Sri. George had a son in a previous marriage. On the death of the employee, in terms of the rules governing family pension, the son was eligible for 50% of the eligible family pension till he attains 18 years. Accordingly 50% of the family pension amount was paid to the son and the balance was paid to the first respondent. On the son attaining 18 years, he having been rendered ineligible for further payment, first respondent claimed that she should be paid the full amount of family pension. This having been denied by the appellants, the writ petition was filed by the first respondent. The learned Single Judge disposed of the original petition by judgment dated 21st December 2006, upholding the claim of the first respondent. Aggrieved by the judgment, the respondents in the original petition are in appeal.

In view of certain subsequent developments, adjudication on the merits of the dispute regarding the entitlement of the first respondent for full family pension is not necessary. It is the common case that the Contributory Family Pension Scheme in question is governed by Rule 90, Part III of KSR. By GO(P) No. 190/2007/Fin. Dated 8th May 2007, Rule 90(7)(i), which provided for payment of family pension to more than one widow has been deleted. Rule 90 Sub-rule 7 Clause II has also been amended to the following effect:

Rule 90(7)(ii) Existing Rule Amendment Where the deceased employee Where the deceased is survived by a widow but has employee is survived by left behind an eligible a widow but has left son/daughter from another wife, behind an eligible the eligible son/daughter will be son/daughter from paid the share of Family Pension another wife, the eligible which the mother would have son/daughter will be paid received if she had been alive at the share of Family the time of the death of the Pension which the employee. mother would have received, if she had been alive at the time of the death of the employee. While sharing Family Pension between children of first marriage and spouse/children in 2nd 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 necessity for the amendment to the Rule is stated to be that under the then existing provisions in the KSR, the widow would continue to get only 50% of the family pension even though the balance 50% was no longer payable by the Government once children in the first marriage are rendered ineligible. With the amendment as stated above, provision has now been incorporated for restoration of full family pension to the widow where 50% is no longer payable to the children of first marriage/spouse or children by second marriage. In the light of the amendment as above, we hold that the first respondent is eligible for restoration of full family pension.

However, the parties were at controversy regarding the effective date of restoration of full pension. While the counsel for the first respondent asserted first respondent''s right to get full family pension throughout, the counsel for the appellant contended that the benefit of amendment should be only from 8th May 2007 when the Government order was issued. As we have already noticed, before the amendment to the Rule by GO(P) No. 190/2007/Fin. dated 8th May 2007, the provisions of the KSR did not contain any clause for restoration of full pension to the wife, once the children in the previous marriage becomes ineligible for payment of any portion of family pension. This anomaly was rectified by Government and amendment has been incorporated only from 8th May 2007. While introducing the amendment, there is no provision in the amended rule to infer that the said amendment is retrospective. Such being the case, we are of the view that the amendment introduced by GO(P) No. 190/2007Fin. dated 8th May 2007 can only be prospective. In that view of the matter, we hold that the entitlement of the first respondent for restoration of full family pension is only from 8th May 2007.

In the light of what is discussed above, the writ appeal is disposed of modifying the judgment of the learned Single Judge that the benefit of restoration of full family pension to the first respondent shall be only from 8th May 2007.