(2012) 251 KLR 160 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN TUESDAY, THE 7TH DAY OF FEBRUARY 2012/18TH MAGHA 1933 OP (CAT).No. 739 of 2011 (S) ---------------------------- OA.374/2008 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH PETITIONER(S)/PETITIONER: ------------------------ THE GOVERNMENT OF INDIA,MINISTRY OF STEEL,UDYOG BHAVAN,NEW DELHI REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA. BY ADVS.SRI.T.SANJAY CGC SRI.P.PARAMESWARAN NAIR,ASG OF INDIA RESPONDENT(S): -------------- 1 INDIRA.A.W/O.SHRI SANKARANARAYANAN, KAMPALATH HOUSE,MANJALORE POST,ETHANUR VIA ALATHUR TALUK,PALAKAKD DISTRICT-678 541. BY SRI.SAJAN VARGHEESE K. BY SRI.LIJU. M.P THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 07-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ---------------------------- PETITIONER'S EXTS:
RESPONDENT'S EXTS:
/TRUE COPY/ P.A.TO JUDGE C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. ------------------------------------------ O.P.(CAT) No.739 OF 2011 ------------------------------------------- Dated this the 7th day of February, 2012 Head Note:- Central Civil Services (Pension) Rules, 1972 - Rule 54(6) - Whether a disabled son of a servant of Union of India is ineligible to family pension after the marriage? Held:- Rule 54(6)(ii) stipulates that normally son is entitled to family pension till he attains the age of twenty five years. The proviso to Rule 54(6) (iii) would show that the son or daughter of a Government servant suffering from any disorder or disability of mind including mentally retarded or physically crippled or disabled so as to render him or her unable to earn a living even after attaining the age of 25 years is entitled to family pension for life subject to six conditions enumerated thereunder. Explanation (b) quoted above to proviso to Rule 54(6)(vi) would show that a daughter shall become ineligible for family pension under this sub rule from the date she gets married. That means, a disabled daughter on her marriage alone would become ineligible for family pension under Rule 54(6). There is no disqualification by marriage for a disabled son to claim family pension. If the legislative intention was to exclude both married son and daughter, Explanation (b) should have included son also. But the daughter alone is mentioned there. That means a disabled son coming under the proviso to Rule 54(6)(iii) does not become ineligible once he gets married. J U D G M E N T ~~~~~~~~~~~ P.S.Gopinathan, J. Petitioner, the Union of India is the respondent in O.A.No.697/2009 on the file of the Central Administrative Tribunal, Ernakulam Bench. The respondent is the applicant before the Tribunal. The respondent is the wife of Sankaranarayanan, who is the only issue of late KPV Menon. KPV Menon, who was an Under Secretary under the petitioner, retired from service on 31.1.1981 and died on 21.8.2005. Sankaranarayanan being mentally retarded, the respondent was appointed as guardian as per the decree in O.S.No.332 of 2004 on the file of the Munsiff's Court, Alathur, and in that capacity she is pursuing the claim. Application for family pension was filed claiming that Sankaranarayanan is physically and mentally disabled and therefore, irrespective of the age, by virtue of Rule 54(6) of the Central Civil Services (Pension) Rules, 1972, he is entitled to family pension. The petitioner rejected the claim. An application as O.A.No.374/2008 was preferred before the Tribunal. The Tribunal by Annexure-A11 order dated 12.12.2008 set aside the order impugned and directed the petitioner to reconsider the claim of Sankaranarayanan. Accordingly, the petitioner reconsidered the claim and by Annexure-A13 order, the claim was again rejected by stating that since Sankaranarayanan is married, he is not entitled to get the family pension. Assailing that order, the respondent approached the Tribunal with the 2nd application. By the order impugned dated 18.10.2010, the Tribunal arrived at a finding that Sankaranarayanan, being disabled, marriage is not a disqualification to claim family pension. Assailing the above order of the Tribunal, this Original Petition is filed. 2. The question that arises for consideration is whether a disabled son of a servant of Union of India is ineligible to family pension after the marriage. 3. We have heard Sri.T.Sanjay, standing counsel appearing for the petitioner as well as Sri.Sajan Varghese, learned counsel appearing for the respondent. 4. Rule 54(6) of the Central Civil Services (Pension) Rules, 1972 which is the relevant rule applicable for payment of family pension reads as follows:- (6) The period for which family pension is payable shall be as follows: (i) in the case of a widow or widower, upto the death or remarriage whichever is earlier. (ii) in the case of a son, until he attains the age of (twenty five) years and (iii) in the case of an unmarried daughter, until she attains the age of (twenty five) years or until she gets married whichever is earlier. Provided that if the son or daughter of a Government servant is suffering from any disorder or disability of mind (including mentally retarded) or is physically crippled or disabled so as to render him or her unable to earn a living even after attaining the age of (twenty five years), the family pension shall be payable to such son or daughter for life subject to the following conditions, namely:- (i) if such a son or daughter is one among two or more children of the Government servant, the family pension shall be initially payable to the minor children in the order set out in Clause (iii) of sub rule (8) of this rule until the last minor child attains the age of (twenty five) and thereafter the family pension shall be resumed in favour of the son or daughter suffering from disorder or disability of mind (including mentally retarded) or who is physically crippled and shall be payable to him/her for life. (ii) if there are more than one such children suffering from disorder or disability of mind (including mentally retarded) or who are physically crippled or disabled, the family pension shall be paid in the order of their birth and the younger of them will get the family pension only after the elder next above him/her ceases to be eligible. Provided that where the family pension is payable to such twin children, it shall be paid in the manner set out in clause (d) of sub rule (7) of this rule. (iii) the family pension shall be paid to such son or daughter through the guardian as if he or she were a minor except in the case of physically crippled son/daughter who has attained the age of majority (iv) Before allowing the family pension for life to any such son or daughter, the Appointing Authority shall satisfy that the handicap is of such nature so as to prevent him or her from earning his or her livelihood and the same shall be evidenced by a certificate obtained from a medical officer not below the rank of a Civil Surgeon setting out, as far as possible, the exact mental or physical condition of the child. (v) the person receiving the family pension as guardian of such son or daughter or such son or daughter nor receiving the family pension through a guardian shall produce every three years a certificate from a medical officer not below the rank of a Civil Surgeon to the effect that he or she continues to suffer from disorder or disability of mind or continues to be physically crippled or disabled. (vi) in the case of a mentally retarded son or daughter, the family pension shall be payable to person nominated by the government servant or the pensioner, as the case may be, and in the case no such nomination has been furnished to the head of office by such government servant or pensioner during his life time, to the person nominated by the spouse of such government servant or family pensioner, as the case may be, later on. Explanations: (a) deleted (b) A daughter shall become ineligible for family pension under this sub rule from the date she gets married. (c) The family pension payable to such a son or daughter shall be stopped if he or she starts earning his/her livelihood. (d) In such cases it shall be the duty of the guardian or son or daughter to furnish a certificate to the Treasury or Bank as the case may be, every month that (i) he or she has not started earning his/her livelihood (ii) in case of daughter that she has not yet married. (Rest omitted as not relevant) xxxx xxxx xxxx xxxx xxxx xxxx 14(b) For the purposes of this rule Family in relation to a government servant means (i) wife in the case of male Government servant, or husband in the case of a female Government servant (ii) son who has not attained the age of twenty five years and unmarried daughter who has not attained the age of twenty five years including such son and daughter adopted legally. Rule 54(6)(ii) stipulates that normally son is entitled to family pension till he attains the age of twenty five years. The proviso to Rule 54(6) (iii) would show that the son or daughter of a Government servant suffering from any disorder or disability of mind including mentally retarded or physically crippled or disabled so as to render him or her unable to earn a living even after attaining the age of 25 years is entitled to family pension for life subject to six conditions enumerated thereunder. Explanation (b) quoted above to proviso to Rule 54(6)(vi) would show that a daughter shall become ineligible for family pension under this sub rule from the date she gets married. That means, a disabled daughter on her marriage alone would become ineligible for family pension under Rule 54(6). There is no disqualification by marriage for a disabled son to claim family pension. If the legislative intention was to exclude both married son and daughter, Explanation (b) should have included son also. But the daughter alone is mentioned there. That means a disabled son coming under the proviso to Rule 54(6)(iii) does not become ineligible once he gets married. 5. The learned standing counsel canvassed our attention to Annexure-A12 containing a clarification. Clause (vi) of the clarification reads as follows: "(vi) payment of family pension is to be discontinued in the event of eligible sons/daughters (including widowed/divorced daughters) getting married/remarried or on their earning a monthly income exceeding Rs.2,550/- on attaining 25 years of age, whichever is earlier. The crucial date for determining their continued eligibility to family pension shall be 1st January, 1998 and not 5th March, 1998." According to the learned standing counsel, in the light of the above clarification, married children, whether son or daughter, abled or disabled, after marriage, are not entitled to family pension. In our opinion it is in respect of general cases and not relating to the cases coming under the proviso to Rule54(6)(iii). 6. The learned counsel for the respondent canvassed our attention to clause 20 in Annexure - R1. Sub clause 3 to clause (20) referring to OM No.1(26) P&PW/90-(E) dated 18.1.1993 reads as follows: "3. It has also been decided by the Government on the basis of the recommendations of the Fifth Central Pay Commission and in partial modification of this Department's OM No.1 (26)-P&PW/90-(E) dated 18.1.1993 [Not printed] that the Family Pension in respect of sons/daughters (including widowed/divorced daughter) will be admissible, subject to the condition that the payment should be discontinued/not admissible when the eligible son/daughter starts earning a sum of Rs.2,550 per month from employment in Government, the private sector, self employment, etc. It is further clarified that the Family Pension to the sons/daughters will be admissible till he/she attains 25 years of age or up to the date of his/her marriage/re-marriage whichever is earlier. There is however, no change in the provisions about admissibility of Family Pension in respect of sons/daughters suffering from any disorder or disability of mind or who is physically crippled or disabled as mentioned in the OM, dated 18.1.1993." In the light of above, according to the learned counsel, there is no change in the provision about the admissibility of family pension in respect of sons/daughters suffering from any disorder or disability of mind or who is physically crippled or disabled as mentioned in the O.M. dated 18.1.1993. We find merit in the submission. 7. Our attention was also canvassed by the learned Standing Counsel to the Railway Board's Letter No.F(E) III/2003/PNI/43 dated the 10th August, 2005 which reads as follows: "(26) Life-long family pension to mentally retarded or physically crippled or disabled MARRIED sons and daughters not admissible: In terms of Explanation (2) below Rule 75(6) of Railway Services (Pension) Rules, 1993 read with para 7.2(b) of Board's Letter No.F.(E)III/97/PN1/22, dated 5.11.1997, dependent sons and daughters of deceased Railway servants shall be eligible for family pension in their turn till they attain the age of 25 years or up to the date of their marriage/remarriage, whichever is earlier. However, as per the proviso to the said rule, such of the sons or daughters as are suffering from any disorder or disability of mind including mentally retarded or are physically crippled or disabled so as to render them unable to earn a living even after attaining the age of 25 years, family pension shall be payable to them for life subject to fulfillment of certain conditions stipulated thereunder. In this context, a query has been raised by one of the Railways about admissibility of family pension to a mentally retarded MARRIED son. The matter has been examined in consultation with the Department of Pension and Pensioners' Welfare and it is clarified that the MARRIED sons and daughters, who are suffering from any disorder or disability of mind, including mentally retarded or are physically crippled or disabled shall NOT be eligible for family pension." 8. Going by Rule 54(6) the clarifications and the Annexures quoted above, we find that that letter is in respect of the persons retired from the Railway service coming under Railway Services (Pension) Rules 1993 and not applicable to the petitioner. In the light of the proviso to Rule 54(6), coupled with Explanation (b) and OM No.1 (26) P& PW/90-(E) dated 18.1.1993 we find that the claim of the respondent is sustainable. The Tribunal is absolutely correct in allowing the application. We find no error, illegality or impropriety to be rectified in exercise of the jurisdiction vested on this Court under Article 227 of the Constitution of India. In the result, this O.P.(CAT) is dismissed. (C.N.RAMACHANDRAN NAIR, J) (P.S.GOPINATHAN, JUDGE) ps/cms/9/11 |
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O.P. (CAT) No. 739 of 2011 - Government of India Vs. Indira A., (2012) 251 KLR 160 : 2012 (2) KLT 837posted Jun 11, 2012, 7:39 PM by Law Kerala [ updated Jun 11, 2012, 7:39 PM ] |
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