Research › Search › Judgment

Kerala High Court · body

2005 DIGILAW 182 (KER)

Accountant General v. Shyson George

2005-03-01

K.R.UDAYABHANU, KURIAN JOSEPH

body2005
Judgment :- Kurian Joseph, J. The short and simple question to be considered in this case is whether mentally retarded dependant major children of a deceased pensioner is eligible to receive family pension only from the date of issuance of the medical certificate or from the day following the death of the pensioner. The Writ Appeal is at the instance of the respondent State and others in writ petition, O.P.33561/01. The writ petitioner is a mentally retarded person. The documents available in the case would show that the retardation was from the very birth of the petitioner. The date of birth of the writ petitioner is 1.9.1959. His father was a Teacher in an aided Upper Primary School. He retired from service on 31.8.1987 and retired from life on 21.5.1988. He left behind a mentally retarded child, the writ petitioner. Petitioner’s mother died earlier. His brother-in-law, the defacto guardian, Sri. E.J.Jose has been hectically making efforts for the eligible family pension of the writ petitioner. It appears he had approached the civil court to get a declaration that he is the legal guardian competent to represent the writ petitioner. In the meanwhile, the Government issued Ext.P2 Government Order dated 10.4.2000 making it clear that in the case of mentally retarded children, the defacto guardian also can apply for family pension since the Government found that severe hardships were being caused to such children in getting certificate from the District Court regarding the appointment of dejure guardian. It is seen that the defacto guardian had made an application, according to the Government on 30.10.2000 enclosing Ext.P3 eligibility certificate dated 8.7.1998. It is certified in Ext.P3 eligibility certificate by the Medical Board that the writ petitioner is a mentally retarded person having I.Q. below 50%. It is also certified that he is unable to earn his livelihood due to the mental retardation. It is also seen from Ext.R1(a) Medical Certificate issued by the Medical Board that the mental regardation of the petitioner is above 501% and that the retardation is right from the birth. 2. According to the writ petitioner, he is entitled to get family pension from the day following the date of death of his father, viz., 22.5.1988. The Accountant General in the impugned Ext.P7 order took the stand that the family pension can be granted only with effect from 8.7.1998, the date of the eligibility certificate. 2. According to the writ petitioner, he is entitled to get family pension from the day following the date of death of his father, viz., 22.5.1988. The Accountant General in the impugned Ext.P7 order took the stand that the family pension can be granted only with effect from 8.7.1998, the date of the eligibility certificate. However, it is seen that the pension sanctioning authority had sanctioned pension to the petitioner with effect from 22.5.1988 as can be seen from Ext.P5. The Accountant General has relied on Circular No.10/2000/Fin. Dated 17.2.2000 of the Government of Kerala. That circular is produced as Ext.P8 along with C.M.P.No.58422/2001. 3. There is no dispute in this case as to the eligibility of the petitioner for the family pension. The dispute is only with regard to his claim for arrears for the period prior to 8.7.1998. It is stated in the circular dated 17.2.2000 that in the case of pension granted to dependent parents and major children allowed under special circumstances, and in the absence of natural eligible heirs like the spouses/minor children etc., the family pension amount will be paid with effect from the date of issuance of eligibility certificates and will not accrue on the day following the day of death as in the case of spouse/minor children. However, the Government had rightly given two further clarifications; (1) the circular is “applicable to all cases henceforth” and (2) “Cases already settled will not be reopened under any circumstances”. 4. The learned Single Judge, taking note of the fact that Ext.P3 eligibility certificate is issued on 8.7.1998 and that the delay in making the application was due to reasons not attributable to the petitioner, clarified that the circular will not apply in the case of the petitioner and his case should be treated as one having been settled prior to the date of issuance of Ext.P8 circular. The learned Single Judge took note of the fact that the petitioner has been before the courts in the matter of getting a dejure guardian appointed to prosecute his claim for the family pension. It is only in the light of Ext.P2 Government Order clarifying that in the case of mentally retarded children, it is not necessary that dejure guardian should represent the person and it should be sufficient that defacto guardian represents such person, the application was filed subsequently. It is only in the light of Ext.P2 Government Order clarifying that in the case of mentally retarded children, it is not necessary that dejure guardian should represent the person and it should be sufficient that defacto guardian represents such person, the application was filed subsequently. It was in such special circumstances, the learned Single Judge issued a direction that the case of the petitioner should be treated to have been settled prior to the issuance of Ext.P8 Government Order, in which case as clarified in Ext.P8 itself by the Government, the petitioner was entitled to get the family pension on the day following the date of death of the father. 5. It is not the date of issuance of the eligibility certificate that is material, it is actually the date of accrual of the disability that is relevant. If for some reasons either the competent Medical Officer or the Medical Board as the case may be delays the issuance of certificate of disability, a person in want shall not suffer. It is the date of occurrence of the disability that is crucial and relevant and the rest are irrelevant. If the disability was there prior to the death of the protector-pensioner, necessarily the State should continue the support from the day following the death of the pensioner. Needless to say that if the disability is subsequent to the death of the pensioner, the eligibility starts only then. Therefore, we make it clear that the eligibility for family pension under special circumstances referred to in Ext.P8 should be understood as the date of occurrence of the disability and not as the date of issuance of a certificate by the Medical Officer or the Medical Board, as the case may be. Needless to say that the eligibility for family pension is only from the day following the death of the pensioner. If such an interpretation is not given to the provision, it would defeat the very purpose of Rule 90 of Part III K.S.R. In this context it is worth noting that in S.K.Mastan Bee V. General Manager, South Central Railway (2003)1 SCC 184), the Apex Court has gone to the extent of declaring that denial of right of family pension amounts to violation of the guarantee assured to the citizens under Article 21 of the Constitution of India. 6. 6. In the instant case, there are several certificates including Annexure R1(a) produced in the Writ Appeal to show that the petitioner is a mentally retarded person from his birth. Hence the Government should ignore Ext.P7 objection of the Accountant General. The petitioner was dependent on his father while in service and after his retirement. That source of dependency terminated by the death of his father. Then he has to depend on the State, on the day following the date of death of his father. The State cannot wash off its hands either under the rules or under any circulars from its liability to pay pension to the petitioner. The State cannot forget the fact that we are living in a welfare State and it is the primary duty cast on the State to protect the welfare of its citizens, particularly those who are unable to protect themselves. 7. In the above circumstances, we dismiss the Writ Appeal. There will be a direction to grant the family pension to the petitioner with effect from 22.5.1988 within a period of six weeks from the date of production of a copy of the judgment by the petitioner. We make it clear that in the event of any delay beyond the said period, the petitioner shall be paid interest at the rate of 18% from 22.5.1988 and the officers responsible for the delay shall be personally liable for the same.