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2007 DIGILAW 411 (KER)

Deepa P v. State of Kerala

2007-07-10

THOTTATHIL B.RADHAKRISHNAN

body2007
JUDGMENT Thottathil B. Radhakrishnan, J. 1. Petitioners mother, a school teacher died on 26-3-1975. The petitioner became entitled to draw family pension from 30-4-1998 and was granted such benefit as per Ext.P2 order. However, on the ground that due certificate was produced only at a later point of time, the date of her entitlement to family pension stands, in effect, postponed as per the impugned action. Hence, this writ petition. 2. Petitioner was born on 17-3-1975. She was found eligible for family pension from 30-4-1998, the day immediately following the date on which her elder sister attained the age of 25 years. 3. In terms of Rule 90(7)(c) in Part III k.S.R., the contributory family pension will be admissible in the case of unmarried daughter until she attains the age of 25 years or marriage or till she starts earning her livelihood, whichever is earlier. 4. The Government issued Ext.P12 executive order dated 31-8-1998, whereby, unmarried daughters of deceased Government servants are eligible for life time family pension subject to the conditions (a) to (c) in Paragraph 3 of that Government order. By those terms, an unmarried daughter above the age of 25 years has to furnish a certificate from the revenue authority to the effect that she was solely dependent on her parents and she has no independent income. A certificate and an affidavit regarding her unmarried status have to be produced, annually. 5. Thereafter, on 17-2-2000, the Government issued Ext.P13 circular clarifying that in cases where pension is allowed under Special circumstances, the family pension amount will be paid with effect from the date of issuance of eligibility certificates and will not accrue from the date following the day of death as in the case of spouse/minor children. That circular was to apply to all cases thenceforth and cases already settled would not be re-opened under any circumstances. 6. Petitioner has been denied pension for the period from 17-3-2000 to 21-2-2001 on the ground that she had not furnished the certificate of the revenue authority until 21-2-2001. 7. Non contributory family pension in terms of Section VI of Chapter V of part III K.S.R. accurse on the death of the Government servant. 6. Petitioner has been denied pension for the period from 17-3-2000 to 21-2-2001 on the ground that she had not furnished the certificate of the revenue authority until 21-2-2001. 7. Non contributory family pension in terms of Section VI of Chapter V of part III K.S.R. accurse on the death of the Government servant. The case of unmarried daughters beyond the age of 25 years is not governed by the statutory rule, but by Ext.P12, an executive order of the Government in terms of Article 162 of the Constitution of India. A field not occupied by a statutory rule can be regulated by an executive decision. Once the Government comes forward with an executive decision to occupy such a field, that will have to run in the space intended to be occupied by it. Any modification or dilution of the prescriptions of that executive decision could be had only by yet another executive decision or by superior statutory rules. It cannot be done by the issuance of a circular by the Secretary in the Government. In terms of Ext.P12, the entitlement to pension is not postponed to be effective only from the date of production of the certificate of the revenue officer. Therefore, once the necessary certificates are produced, the entitlement to pension cannot be pegged to be applicable only from the date of production of the certificate. 8. The petitioner was found entitled to pension from 30-4-1998. The averment in the counter affidavit is that, though the petitioner was eligible for family pension with effect from 30-4-1998, she applied for it only on 26-12-2000. Hence, the fact that she was entitled to family pension from 30-4-1998 is beyond dispute. In fact, she has been paid such pension from 30-4-1998, but refused such relief from 17-3-2000 to 21-2-2001, solely on the basis of Ext.P13 circular, on the ground of non-furnishing of certificates. Hence, the refusal to release the pension so due in terms of Ext.P12 order is arbitrary and unsustainable. In the result, this writ petition is allowed directing that the family pension amount due from 17-3-2000 to 21-2-2001 shall be released to the petitioner and all decisions to the contrary as are impugned in this writ petition will stand quashed or modified accordingly. In the result, this writ petition is allowed directing that the family pension amount due from 17-3-2000 to 21-2-2001 shall be released to the petitioner and all decisions to the contrary as are impugned in this writ petition will stand quashed or modified accordingly. The amount covered by this judgment shall be released to the petitioner within a period of three months from the date of receipt of a copy of this judgment. Having regard to the facts that the petitioner produced the certificate of the revenue officer only belatedly, the claim for interest and costs is refused.