JUDGMENT : Can the disabled daughter of a member who is covered under the Employees’ Pension Scheme, 1995 and whose wife has remarried after his death, claim orphan pension and children pension simultaneously? This is the question that is to be decided in this Writ Petition. 2. The facts which need to be stated to answer the above question can be sequentially stated in the following lines:- The petitioner is the disabled daughter of Late Sri. B. Umasankar, a former employee of M/s. Premier Tyres Limited, Kalamasserry, an establishment covered under the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (“Act 19 of 1952” for the sake of brevity). He died while in service on 7.3.2008. He was survived by his wife Seeja and the petitioner herein. The petitioner and her mother submitted an application seeking child/widow pension. By order dated 8.3.2008, Seeja was granted a sum of Rs.2,051/-towards widow pension and the petitioner was sanctioned a sum of Rs.513/-towards disability pension. On 27.10.2016 Seeja got remarried. Immediately thereafter, a request was made to the respondent to disburse orphan pension in terms of paragraph 16(4)(b) of the Employees' Pension Scheme, 1995 to the petitioner herein. Alleging inaction, the petitioner through her mother approached this Court seeking a direction to the 1st respondent to disburse children pension and also to grant her orphan pension from the date of re-marriage of her mother on 27.10.2016. The respondents refused her request and asserted that the fact that Seeja had got remarried was not disclosed to the organization. It was pointed out that the widow ceased to be eligible for pension with effect from her remarriage. A learned Single Judge of this Court by Exhibit P1 judgment ordered Seeja to refund the excess amount that she had drawn within a period of three months and the respondent was further ordered to disburse the family pension to the petitioner in accordance with law. 3. According to the petitioner, in terms of the order, the mother of the petitioner refunded a sum of Rs.48,000/-. It is urged in the writ petition that the petitioner is eligible for children pension as well as orphan pension. The orphan pension is 75% of the family pension which will come to Rs.1538.25/-and the children pension will come to Rs.527/-, thus totaling Rs.2051.25/-. What is being paid to the petitioner is only Rs.1538/-. It is urged in the writ petition that the petitioner is eligible for children pension as well as orphan pension. The orphan pension is 75% of the family pension which will come to Rs.1538.25/-and the children pension will come to Rs.527/-, thus totaling Rs.2051.25/-. What is being paid to the petitioner is only Rs.1538/-. Aggrieved by the above, the petitioner has approached this Court seeking the following prayers. “1. To declare that the petitioner is entitled to receive orphan pension and child pension at the same time as per para 16(e) of the Employees’ Pension Scheme 1995. 2. To issue a writ of mandamus or any other appropriate writ or direction directing the 1st respondent to grant orphan pension and child pension together to the petitioner at the rate of Rs.1538.25/-and Rs.527/-, the total amount being Rs.2051.25/-.” 4. Sri.P.K.Ramkumar, the learned counsel appearing for the petitioner, submitted that the petitioner, being a mentally disabled person, suffering from mental retardation is entitled to receive orphan pension as well as children pension simultaneously. Much reliance is placed on para 16(3) (e) of the Pension Scheme and it is argued that a reading of para 16(3) (e) r/w. para 16(d) would make it clear that a disabled child will be eligible to receive orphan pension as well as children pension at the same time. The refusal of the respondent to pay the pension on both counts is illegal, contends the learned counsel. 5. Sri.Thomas Mathew Nellimoottil, the learned standing counsel appearing for the respondent, has refuted the submissions. He would point out that the petitioner had approached this Court earlier with the very same prayer but by Exhibit P1 judgment, this Court, taking note of the fact that her mother had remarried, had directed the mother to refund the amount which was received by her towards widow pension. He would refer to para 16 of the Scheme and it is argued that the eligibility of the petitioner for orphan pension is governed by paragraph 16(4)(b) of the Employees’ Pension Scheme which states that in the event of death or remarriage of the widow/widower after sanctioning of widow/widower pension, the children shall be entitled in lieu of the monthly children pension, to a monthly orphan pension from the date following the date of the death/remarriage of the widow/widower. The conclusion is inescapable that the petitioner is not entitled to receive orphan pension and children pension simultaneously. He would argue that the petitioner was previously drawing monthly children pension at the rate of Rs.513/-per month, (25% of the widow pension) whereas, after Exhibit P1 judgment, she has been drawing orphan pension at the rate of Rs.1538/-per month (75% of the widow pension). It is further argued that the petitioner being a disabled child, the restriction of two children made mention of in 16(3)(d) of the Pension Scheme is not applicable to her and she would be entitled to draw her pension even beyond 25 years of age. 6. I have anxiously considered the submissions advanced and have perused the records. To resolve the controversy it would be apposite to have a glance at paragraph 16 (3) of the Employees Pension Scheme, 1995. Paragraph 16 deals with benefits to the family on the death of a member. Since the controversy is with regard to the interpretation that is to be given to monthly children pension, para 16(3) is extracted below for easy reference. 16. Benefits to the family on the death of a member (1) xxxxxxxx (2) xxxxxxxxx (3) Monthly children pension : - (a) If there are any surviving children of the deceased member, falling within a definition of family, they shall be entitled to a monthly children pension in addition to the monthly widow/widower pension. (b) Monthly children pension for each child shall be equal to 25 per cent of the amount admissible to the widow/widower of the deceased member as monthly widow pension payable under sub-paragraph (2) (a) (i) provided that minimum monthly children pension for each child of the deceased member shall not be less than Rs. 150/-per month. (c) Monthly children pension shall be payable until the child attains the age of 25 years. (d) The monthly children pension shall be admissible to maximum of two children at a time and will run from the oldest to the youngest child in that order. (e) If a member dies leaving behind a family having son or daughter who is permanently and totally disabled such son or daughter shall be entitled to payment of monthly children pension or orphan pension, as the case may be, irrespective of age and number of children in the family in addition to the pension provided under clause (d)". (e) If a member dies leaving behind a family having son or daughter who is permanently and totally disabled such son or daughter shall be entitled to payment of monthly children pension or orphan pension, as the case may be, irrespective of age and number of children in the family in addition to the pension provided under clause (d)". (4) (a) If the deceased member is not survived by any widow but is survived by children falling within the definition of family or if the widow pension is not payable, the children shall be entitled to a monthly orphan pension equal to 75 per cent of the amount of the monthly widow pension as payable under subparagraph (2) (a) (i) provided that minimum monthly orphan pension for each orphan shall not be less than Rs. 750/-per month.] (b) In the event of death or remarriage of the widow/widower after sanctioning of widow/widower pension the children shall be entitled in lieu of the monthly children pension, to a monthly orphan pension from the date following the date of death/remarriage of the widow/widower. (emphasis supplied). (c) The monthly orphan pension shall be admissible to a maximum of 2 orphans at a time and shall run in order from the oldest to the youngest orphan. 7. Para 16 (3) deals with monthly children pension. It states that if there are any surviving children of the deceased member, they shall be entitled to a monthly children pension in addition to the monthly widow/widower pension. Para 16(3)(b) states that the monthly children pension for each child shall be equal to 25% of the amount admissible to the widow of the deceased member as monthly widow pension payable under clause (a) of sub para (2). It further states that the minimum monthly children pension including relief for each child of the deceased member shall not be less than Rs.250/-per month. 16(3)(c) states that the monthly children pension shall be payable until the child attains the age of 25 years. 16(3)(d) lays down that the monthly children pension shall be admissible to the maximum of two children at a time and will run from the oldest to the youngest child in that order. 8. Now we come to Para 16(3) (e) which along with para 16 (3) (d) is relied on by Sri. 16(3)(d) lays down that the monthly children pension shall be admissible to the maximum of two children at a time and will run from the oldest to the youngest child in that order. 8. Now we come to Para 16(3) (e) which along with para 16 (3) (d) is relied on by Sri. Ramkumar to bring home his point that the petitioner is entitled to children pension and orphan pension simultaneously. Para 16 (3) (e) states that if a member dies leaving behind a family having son or daughter who is permanently and totally disabled, such son or daughter shall be entitled to payment of monthly children pension or orphan pension, as the case may be, irrespective of age and number of children in the family in addition to the pension provided under clause (d). The interpretation placed by Sri P.K. Ramkumar on para 16 (3) (d) & (e) cannot be accepted. A reading of Section 16(e) shows that if the child is permanently and totally disabled, it is entitled to payment of monthly children pension or orphan pension, as the case may be, irrespective of its age and the number of children in the family. For instance, if a person is having four children and two are disabled and if they are the youngest of the lot, the limitation in Section 16(3)(d) that pension shall be admissible to the maximum of two children at a time and that it will run from the oldest to the youngest child in that order may not apply. Both the disabled children will be entitled to children pension or orphan pension, irrespective of their age. That is exactly the reason why the conjunction “or” is used between “children pension” and “orphan pension”. It represents alternatives. 9. Para 16 (4)(a) deals with orphan pension which provision is relied on by Sri Thomas Mathew Nellimoottil to unsettle the submissions of Sri Ramkumar. Para 16 (4) (a) states that if the diseased member is not survived by any widow, but is survived by children falling within the definition of family or if the widow pension is not payable, the children shall be entitled to a monthly orphan pension equal to 75% of the amount of the monthly widow pension as payable under clause (a) of sub paragraph (2). The proviso provides that the minimum monthly orphan pension including relief for each orphan shall not be less than Rs.750/-per month. The proviso to para 16(4) (aa) provides that if such orphan is suffering from disorder or disability of mind or is physically crippled or disabled, the monthly orphan pension shall be payable beyond the age of 25 years. Paragraph 16(4)(b) states that in the event of death or remarriage of the widow/widower after sanctioning of widow/widower pension, the children shall be entitled in lieu of the monthly children pension to a monthly orphan pension from the date following the date of death/remarriage of the widow/widower. ‘In lieu of’ means instead of or in place of; in exchange or return for (see Black’s Law Dictionary Ninth Edition). In other words if the widow remarries, the children shall be entitled to orphan pension instead of children pension and if the child is disabled, the pension shall be payable beyond the age of 25 years. No other interpretation is possible. In that view of the matter, this Court will not be justified in declaring that the petitioner is entitled to receive orphan pension and child pension at the same time. 10. Though all my sympathies are with the petitioner, since the provisions are clear and lucid, it would not be possible for this Court to direct the respondent to pay additional amounts in exercise of powers under Article 226 of the Constitution of India. Before parting, it has to be noticed that the provisions work out some prejudice to a disabled child as she is entitled to only 75 % of the amount which a widow is entitled to. As and when the widow gets remarried, if the child is disabled, ideally the entire amount should have gone to the orphan and not 75% of the widow pension. The Employees' Family Pension Scheme was framed by the Central Government in exercise of the power conferred on it under Section 6A of the Employees Provident Funds and Miscellaneous Provisions Act. Since it is a social welfare legislation it is only just and proper that proper amendments are brought to clear the incongruity that exists. These are matters which I feel ought to be taken note of by the legislature and it is for the legislature to modify the law or to make appropriate amendments. Since it is a social welfare legislation it is only just and proper that proper amendments are brought to clear the incongruity that exists. These are matters which I feel ought to be taken note of by the legislature and it is for the legislature to modify the law or to make appropriate amendments. It would be appropriate if the above anomaly is noted by the appropriate Government and necessary amendments are brought out so that disabled persons such as the petitioner may get the entire benefits and not 75% of the widow pension. This Writ Petition is dismissed.