The Kerala High Court on 8 June 2012 in State of Kerala Vs. M.R. Karunakaran held that “the parents would be admissible to the family pension only if the employee was unmarried at the time of his/her death or married if she/he had no wife/husband/ minor children at the time of death”.
A bench comprising of Acting Chief Justice Manjula Chellur and Justice A.M. Shaffique, J. observed apparently that there were no children at all to the couple on hand. However, the wife of the deceased was living at the time of his death. Therefore, as on the date of death of the employee he left behind him his wife who was entitled for family pension.
“As on the date of his death, by virtue of the fact that the wife of the deceased was living, she was entitled to family pension,” the judgment said.
The moot question before the Court was that “Whether parents would automatically be eligible to get the family pension on the re-marriage of the widow of their son?
The learned Single Judge opines that the ultimate object of sub rule 6 A of Rule 90 should be read down to mean that the parents would be entitled to the family pension if the wife remarries and the wife becomes disentitled for family pension.
While setting aside the judgment of learned Single Judge the Writ Appeal Court observed that that what weighed with the learned Single Judge was that family pension is sanctioned to the wife with the assumption that the widow of the son would look after the parents. If the widow of the son refuses to extend any financial assistance to the parents of the deceased government servant, in law there is no right vested in the parents to claim family pension or maintenance from the daughter-in-law. So far as minor children are concerned, even under general law, they could claim maintenance from their mother. In that view of the matter, just because there is some vacuum in the provisions made under the rules concerned, by assumption, one cannot interpret the provisions to conclude a situation subsequent to the sanction of the pension and what happens when widow gets remarried.
# Rule 6 A of Rule 90 of Part III Kerala Service Rules (KSR)
Aggrieved by the Single bench judgment, in the present appeal, contention of the State is that when Rule 90 (6A) of Part III K.S.R. provided how family pension would be admissible to the parents of the deceased and who are all included in the family as contemplated under sub rule 6 of Rule 90.
In the present case it is not in dispute that one Sajithkumar, who was working as a Village Officer in the Revenue Department died leaving behind him his wife and parents. Admittedly, the couple did not have children. Therefore, the wife and the parents of the deceased government servant were the legal representatives left behind by him.
# Payment of family pension provided under the KSR.
“Family” includes the following persons who are entitled to get contributed family pension. Rule 90 (6) in Section VII of Part III K.S.R. reads as follows:-
“90(6) “Family” for purposes of those rules, means the following relatives of the employee, namely:-
a) Wife, in the case of male employee
b) Husband, in the case of female employee
c) Eldest eligible son/daughter (in the order of seniority) till marriage or till attaining the age of 25 years or till he/she gets employed, whichever is earlier.
d) Children suffering from Physical /mental disorder or disability.
e) Unmarried daughters above 25 years.
f) Son/daughter adopted legally before retirement
g) Parents (in equal shares)
h) Judicially separated wife
i) Judicially separated husband
j) Disabled divorced daughters
k) Widowed disabled daughters”.
Note I. If there are no surviving members of the family as in items (a) to (e) above. Government may sanction family pension to the members, referred to in items (f) and (g) subject to the conditions prescribed in sub-r.6A.
If the members referred to in items (a) to (g) are not surviving, the family pension may be paid to the member specified in items (h) or (i) as the case may be, provided the employee has included the details of such member also in Form 5 A.
If judicially separated wife/husband is not included in the details of family furnished in Form 5 A, family pension is not payable to judicially separated wife/husband”.
# G.O. (P) 330/75/Fin.dated 23rd July, 1975.
Note 2: Legal marriage after retirement shall also be considered for the purpose of these rules. In such cases, the retired officer shall file a revised Form 5 A before the Accountant General after marriage. In cases where Form 5 A has not been filed due to death of the pensioner, the family pension will be sanctioned after observing the procedure laid down in Rule 118 (2) Part III, Kerala Service rules.
In the case of second marriage after retirement, necessary certificates/documents from the authorities concerned duly certified by the Notary Public of the locality to the effect that the spouse of the first marriage is not alive and the marriage of the deceased Government servant with the applicant was lawful and legally valid one shall also be produced.
Note 3: The terms ‘sons’ and daughters’ occurring in clauses (c ) and (d) of sub rule (6) include posthumous sons and posthumous daughters.
Note 4. In the case of disabled divorced daughter of a deceased employee/pensioner whose marriage has been legally annulled, family pension is admissible from the date on which her marriage stands annulled. In the case of widowed disabled daughter of a deceased employee/pensioner, family pension is admissible from the date of death of her husband”.
“6A Notwithstanding anything contained in sub-rule (6) above . (1) Contributory family pension will be admissible to the parents of the deceased Government employee if they were solely dependent on the deceased for maintenance and they have no other source of income or support for maintenance, and even in cases where the parents have an independent source of income of less than Rs. 4,800 per annum and they were partly dependent on the deceased for maintenance and there are other extenuating circumstances, subject to the following conditions:-
(i) The employee was unmarried at the time of his/her death of if married, he/she had no wife/husband or minor children at the time of death.
(ii) The parents of the deceased Government employee have no other living sons/daughters who are well palced, and the husband/wife as the case may be of the beneficiary is also not well placed in life.
(iii) Only one family pension will be payable to a person under this rule even if there may be claim for more than one family pension on account of death of more than one son or daughter.”
A reading of Sub Rule 6 along with the note indicate that in the absence of persons referred to at Sl. Nos. (a) to (e) only the persons referred to at (f) and (g) would be entitled for family pension. The persons entitled to family pension are subject to further conditions enumerated under Rule 6 A.
Rule 6 A categorically imposes several conditions, subject to them the parents would be entitled to get family pension. Therefore, in order to have sanction of family pension to the parents they must first become eligible persons as enumerated under sub rule 6 and later the conditions referred to at sub rule 6 A have to be fulfilled. Apparently, no legal representatives other than the parents are left behind by the deceased government servant at the time of his death.
# Facts of the Case
Admittedly, the widow of the deceased Sajithkumar re- married on 11-12-2005. Between 1998 to 2005 she was drawing the family pension of her husband Sajithkumar. After her re- marriage she was not entitled to draw the family pension. Therefore, the question is whether parents would automatically be eligible to get the family pension on the re-marriage of the widow of their son.
As a matter of fact, sub rule 6 does not refer to payment of pension except under Note 1. Therefore, the Court read sub rule 6 along with sub rule 6 A whenever to deal with sanction of pension to the parents. So far as eligibility is concerned, parents are also one of the categorized eligible persons to get the pension. In other words except the persons referred to at sub rule 6 others are not eligible for family pension.
# How to get the family pension to parents ?
The procedure is covered under sub Rule 6 A. There are three conditions under sub Rule 6 A (1) as enumerated above. By reading Sub Rule 6 A along with the three conditions it would clearly go to show that parents who are totally dependent on the deceased and without having any other source of income or support for maintenance would be eligible for such pension and even if they were to have some independent source of income, it would be less than Rs. 2400 per annum later on enhanced to Rs. 4800/- per annum and now it is Rs. 6,000/- per annum.
The parents would be admissible to the family pension only if the employee was unmarried at the time of his/her death or married if she/he had no wife/husband/ minor children at the time of death. Apparently, there were no children at all to the couple on hand. However, the wife of the deceased was living at the time of his death.
Therefore, as on the date of death of the employee he left behind him his wife who was entitled for family pension. As on the date of his death, by virtue of the fact that the wife of the deceased was living, she was entitled to family pension.