M. Radha v. The Executive Engineer (Irrigation) Karapuzha Project Division, Kalpetta, Wayanad-673 121; Accounts Officer, Office of the Accountant General (A&E) Kerala; Sub Treasury Officer, Pension Payment Sub Treasury, Kozhikode-673 020; Tahsildar, Kozhikode-673 121; Yasoda

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941** **OP(KAT).No.1472 OF 2013(Z)** ## **PETITIONER/S:** **M.RADHA, AGED 67 YEARS W/O. LATE RAGHAVA KURUP, MEETHALE MOORIPRATH, CHORODE EAST POST, VATAKARA, KOZHIKODE-673 106.** **BY ADVS. SRI.P.B.KRISHNAN SRI.N.AJITH SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN** ## **RESPONDENT/S:** **1 THE EXECUTIVE ENGINEER (IRRIGATION) KARAPUZHA PROJECT DIVISION, KALPETTA, WAYANAD-673 121.** **2 THE ACCOUNTS OFFICER OFFICE OF THE ACCOUNTANT GENERAL (A & E) KERALA, M.G.ROAD, THIRUVANANTHAPURAM-695 039.** **3 THE SUB TREASURY OFFICER PENSION PAYMENT SUB TREASURY, KOZHIKODE-673 020.** **4 THE TAHSILDAR KOZHIKODE-673 121.** **5 YASODA, 'SOUPARNIKA', M.L.A.ROAD, MAKKANCHERY THAZHAM, CHEVAYOOR POST, KOVOOR, KOZHIKODE-673 017.** **R1-4 BY GOVERNMENT PLEADER, SRI.ANTONY MUKKATH R5 BY ADV. SRI.M.PROMODH KUMAR R5 BY ADV. SRI.P.R.SREEJITH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 29.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(KAT).No.1472 OF 2013(Z)** ..2.. ## **JUDGMENT** ## **K.VINOD CHANDRAN,J.** The dispute revolves around the family pension payable, of a retired government employee, one Raghava Kurup. Both the petitioner and the 5[th] respondent claim to be legally wedded wife of the deceased government servant, entitled to family pension. 2. The petitioner is said to have married Raghava Kurup in 1959 and three children were also born in the wedlock. The 5[th] respondent's claim is of a marriage in 1978, in which also two children were born. The issue arose as to who is entitled to get the family pension on the death of Raghava Kurup. The Government records showed a nomination in favour of the 5[th] respondent, who is the second wife. **OP(KAT).No.1472 OF 2013(Z)** ..3.. 3. The petitioner claimed that even if there are two wives, the eldest will be entitled to claim the family pension, as is provided under Rule 85 of Part-III KSR. It is also her contention that there being no valid marriage with the 5[th] respondent, she cannot come within the definition of 'family', as is provided under Section V Nominations of KSR; specifically Rule 71. The 5[th] respondent's case is that the marriage of Raghava Kurup with the petitioner is not proved nor admitted and the nomination is in her favour. 4. The Tribunal found that the _inter_ _se_ dispute between the petitioner and the 5[th] respondent has to be resolved before a civil court. There is admittedly a civil case pending between the parties as O.S.No.598/ 2015, before the Munsiff's Court-II, Kozhikode, in which the plaintiff is the 5[th] respondent and the petitioner here the **OP(KAT).No.1472 OF 2013(Z)** ..4.. defendant 5. The learned Counsel for the petitioner has a contention that under Section 15 of the Administrative Tribunal's Act, 1985, the authority henceforth exercised by all courts with respect to service matters was taken away and the Administrative Tribunal, conferred with such powers. In such circumstance, the Tribunal ought to have decided the question of who is to obtain the family pension and it could not have relegated the parties to the civil court. 6. We are not able to accept such a contention, since the dispute between the petitioner and the 5[th] respondent is not pertaining to a service matter. The right to claim pension by the legally wedded wife is definitely incidental and arising out of the service of the deceased pensioner. However when two persons raise a claim on such **OP(KAT).No.1472 OF 2013(Z)** ..5.. entitlement it is not a service matter and is one which has to be adjudicated in the civil court based on the laws of succession applicable to the parties. The service rules also play confined role as to the entitlement, which is on a legally wedded wife. When two women raise a claim, it is an _inter se_ dispute between them as to one of them being entitled to raise a claim for the family pension as the wife of the deceased pensioner. This is not a dispute which can be adjudicated by the Tribunal. 7. In such circumstances, necessarily, the matter would have to be settled by a civil court and not by the Administrative Tribunal. The Tribunal as per the decision of the Hon'ble Supreme Court in _**L.Chandra Kumar**_ v. ## _**Union of India and Others [AIR 1997 SC 1125]**_ , discharges a supplemental role, though is not a substitute of the High Court, but still **OP(KAT).No.1472 OF 2013(Z)** ..6.. enabled to decide on the vires of a statute; subject to the writ jurisdiction of the High courts under Article 226 and 227. The Tribunals act as the Courts of first instance in the areas of law for which they have been constituted. 8. If the State Administrative Tribunal had not been constituted, the petitioner who approached the Tribunal would have definitely approached this Court under Article 226 of the Constitution of India. It is trite that when there is a civil dispute between the parties, this Court would not exercise the jurisdiction under Article 226 and would relegate the parties to the civil court, unless the alternate remedy is found to be not efficacious. In such circumstances, we do not find any infirmity in the decision of the Tribunal. **OP(KAT).No.1472 OF 2013(Z)** ..7.. 9. Be that as it may, we have to notice an interim order passed by this Court on agreement of both the parties dated 28.06.2013, which we extract here under:- Pending this original petition, it is ordered on consensus of parties that the pension will be received by the petitioner and respondent No.5 in equal proportion during the pendency of this original petition and until the dispute is finally resolved through the competent court. The respondents 1 to 4 will ensure that the amounts are released in terms of this order. 10. The Government has not till date disbursed the amounts in terms of the settlement entered into by the petitioner and the 5[th] respondent. 11. The learned Senior Government Pleader specifically brings to our notice an amendment to the rule providing for pension to more than one wife. By G.O(P) No.190/2007/ Fin. Dated 08.05.2007, the provision for **OP(KAT).No.1472 OF 2013(Z)** ..8.. distributing pension between more than one widows of the deceased employee has been deleted. Hence, only one person can be disbursed with the family pension, is the contention. It is also pointed out that the Government would have additional financial liability in complying with the order, if one of the persons who is validly entitled to the family pension passes away and the other, claims the entire pension later. 13. In that context, if one pre deceases the other, definitely, the continuance of the pension would be on the basis of the orders of the civil court. We make it clear that it cannot be on the basis of an order issued by the civil court on consent or the dismissal of the plaint on default or the death of one of the parties. Either of the surviving persons would have to obtain a declaration of the right to receive **OP(KAT).No.1472 OF 2013(Z)** ..9.. the family pension; being the legally wedded wife of the deceased to continue disbursement of the pension, on one of the claimants passing away. 14. In such circumstances, we direct the Government to disburse the family pension; one half to the petitioner and the other half to the 5[th] respondent. The disbursal shall continue only when both of them are alive. But on the death of one of them, the Government shall keep in abeyance the further disbursement till a declaration is obtained from the civil court. The arrears of family pension, however, shall be computed and shall be disbursed; one half each to the petitioner and the 5[th] respondent. The arrears of family pension shall be computed and paid within a period of three months, from the date of receipt of a certified copy of this judgment. The regular pension payment shall commence **OP(KAT).No.1472 OF 2013(Z)** ..10.. from December 2019; the petitioner and the 5[th] respondent being entitled to half of the arrears and the pension. This original petition is disposed of with the above directions and the parties are left to suffer their respective costs. **Sd/K.VINOD CHANDRAN JUDGE** SB/30/10/2019 **Sd/V.G.ARUN JUDGE** **OP(KAT).No.1472 OF 2013(Z)** ..11.. ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1P1 : COPY OF WPC NO.23770/2011, ON THE FILE OF THIS HON'BLE COURT, DTD.29.8.2011.** **EXHIBIT P1DATED 29.04.2009 TRUE COPY OF THE BIRTH IN TA CERTIFICATE OF MANOHARAN ISSUED BY THE CHORODE GRAMA PANCHAYAT** **EXHIBIT P2P2 : COPY OF THE COUNTER AFFIDAVIT FILED BY RESPONDENT NO.5 IN WPC NO.23770 OF 2011.** **EXHIBIT P2DATED 04.05.2009 TRUE COPY OF THE EXTRACT OF IN TA THE ADMISSION REGISTER OF MURALEEDHARAN MAINTAINED BY THE GOVERNMENT U.P. SCHOOL,MATTANUR** **EXHIBIT P3P3 : COPY OF REPLY AFFIDAVIT FILED BY THE PETITIONER TO THE COUNTER-AFFIDAVIT FILED BY RESPONDENT NO.5 IN WPC NO.23770/2011, DTD.30.11.2011. EXHIBIT P3DATED 30.03.2009 TRUE COPY OF THE CERTIFICATE IN TA ISSUED BY THE VILLAGE OFFICER, CHORODE EXHIBIT P4P4 : COPY OF THE COUNTER AFFIDAVIT FILED BY RESPONDENT NO.2 IN TA NO.2406/2012, DTD.21.5.2012.** **EXHIBIT P4DATED 09.03.2009, TRUE COPY OF THE CERTIFICATE IN TA ISSUED BY THE PRESIDENT OF THE CHORODE GRAMA PANCHAYAT** **EXHIBIT P5P5 : CERTIFIED COPY OF THE ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM, IN TA NO.2406/2012.** **EXHIBIT P5DATED 07.12.1998, TRUE COPY OF THE VOTER I.D. IN TA CARD EXHIBIT P6DATED NIL, TRUE COPY OF THE PAGE 9 OF THE IN TA VOTERS LIST OF CHORODE GRAMA PANCHAYAT EXHIBIT P7DATED 14.03.2009, TRUE COPY OF THE LETTER SENT IN TA BY THE PETITIONER TO RESPONDENT NO.3** **OP(KAT).No.1472 OF 2013(Z)** ..12.. **EXHIBIT P8DATED 19/24-06.2009, TRUE COPY OF THE IN TA COMMUNICATION P6/PEN-A/705/I/97-98/10 ISSUED BY THE 2ND RESPONDENT** **EXHIBIT P9DATED 12.04.2011, TRUE COPY OF THE JUDGMENT OF IN TA THIS HON'BLE COURT IN WPC.NO. 27817/2010-B** **RESPONDENTS EXTS: NIL** **// TRUE COPY //** **P.A TO JUDGE**