V MOIDU Vs. STATE OF KERALA

JUDGEMENT

(1.) THE main point that arises for decision in this writ appeal is the constitutional validity of Rule 90 (7) (a) of Part III, Kerala Service Rules.

(2.) THE facts of the case are the following: The appellant is the writ petitioner. He was a pensioner, who retired from service on 31. 3. 1990, while working as the Headmaster of an L. P. School. His second wife Smt. Susheela retired from service as the Headmistress of the very same school. While she was a pensioner, she died on 19. 5. 1996. She had nominated the petitioner, her husband as eligible for receiving family pension. On her death, the petitioner applied for family pension and the same was sanctioned to him. He was receiving the pension through the Central Bank of India. While so, the Branch Manager of the said Bank, by Ext. P2 communication dated 10. 11. 2003 informed him of the objection raised by the Accountant General regarding the payment of pension. This was preceded by Ext. P3 communication issued by the Accountant General's office, informing the Branch Manager to stop the payment of pension to the appellant. The appellant thereafter filed Ext. P5 representation before the Accountant General, detailing the circumstances under which he received the family pension. He prayed for payment of the pension, which was stopped from December, 2003. The appellant, thereafter moved this Court by filing W. P. (C) No. 22516/2004. The said writ petition was disposed of by Ext. P6 judgment, directing the Accountant General, the respondent therein to consider his representation. Pursuant to the said judgment of this Court, the Accountant General's office informed the appellant that the payment of family pension was stopped, as he was having another wife living. He was also informed that the Government have been moved for further action in the matter. The Government by Ext. P9 order dated 27. 12. 2004, ordered that the appellant is ineligible for drawing family pension. The Accountant General forwarded a copy of that order and informed the appellant that the amount paid to him towards family pension between June, 1996 and November, 2003, which will come to Rs. 3,19,059/-, is proposed to be recovered from him. He was asked to represent, if he has got any objection against the same. The Accountant General, later, overruling the objection of the petitioner, decided to recover the amount paid to him, as evident from Ext. P10 communication addressed to the Branch Manager of the Bank. In the above background, the writ petition was filed, challenging the validity of Rule 90 (7) (a) of Part III, Kerala Service Rules, which stood in his way of receiving the family pension. In the writ petition the petitioner, the appellant herein also prayed to quash Exts. P2, P3, P7, P8, P9 and P10 and also sought consequential relief"s. The learned single Judge who heard the writ petition, repelled the challenge of the writ petitioner against Rule 90 (7) (a) of Part III, K. S. R. The learned Judge also declined to interfere with the impugned orders. Hence this Writ Appeal.

(3.) THE learned counsel for the appellant firstly submitted that the appellant being a Muslim, is entitled to have a second wife. So, the Rule which provides that a living wife will stand in the way of getting family pension in respect of a deceased wife, is arbitrary and discriminatory. Therefore, the same violates his fundamental rights under Article 14 of the Constitution of India. So, the appellant prays for striking down the offending provision in the said Rule. Secondly, it was submitted that the right to receive pension is the right to receive property. The same can be deprived only by a valid law. The same cannot be deprived on the basis of the above invalid Rule. Thirdly, it was contended that in any view of the matter, the amount paid to him cannot be recovered. It was paid in good faith and it was received in good faith. There is no fraud or mis- representation from his part. Owing to the present physical condition of the appellant, it is impossible for him to repay the amount which was paid to him in monthly installments. In support of this submission, the learned counsel for the appellant relied on the decision of the Apex Court in N. D. P. Namboodripad v. Union of India [ (2007)4 SCC 502]. It was a case where the Apex Court interdicted the recovery of the excess amount paid to the deceased appellant from his legal heirs. The learned counsel also relied on the decision of the Apex Court in Babulal Jain v. State of M. P. [ (2007) 6 SCC 180]. It was a case where excess payment was made while allowing higher pay to the appellant therein, on misconception of law and not due to any mistake, mis-representation or fraud from the part of the appellant. The Apex Court in the circumstances of the case, prohibited recovery of the excess amount paid to him. The learned counsel further referred to the decision of the Division Bench of this Court in Krishnakumar S. P. v. Guruvayoor Devaswom [i. L. R. 2007 (1) Kerala 699]. In that case also, though this Court laid down that the excess amount paid can be recovered, did not permit recovery on the particular facts of that case. Lastly, the learned counsel relied on the decision of the Apex Court in Aleyamma Varghese v. Secretary, General Education Department [2007 (3) KLT 700 (SC)], where recovery was sought to be made of excess amount paid after the lapse of more than 15 years. The Apex Court prohibited the recovery. The learned counsel for the appellant submitted that there is no fraud or mis-representation from the part of the appellant. Even assuming by a mistake of law he applied for family pension, the same cannot be treated as a fraud. In support of the said submission, the learned counsel relied on the words of the learned author Kerr in his book "law of Fraud and Mistake".