ACCOUNTANT GENERAL Vs. SHYSON GEORGE

JUDGEMENT

(1.) 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 de facto 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 de facto 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 de facto 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 retardation of the petitioner is above 50% 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. 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".