RENUKA.P. v. ACCOUNTANT GENERAL (A&E) OF KERALA and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 15TH DAY OF NOVEMBER 2019 / 24TH KARTHIKA, 1941** ## **WP(C).No.6458 OF 2015(F)** ## **PETITIONER/S:** **RENUKA.P., AGED 49 YEARS, D/O. RAGHAVAN EZHUTHACHAN, PATHINARUPOTHIYIL HOUSE, VELLIYADU, MANNANUR P.O., OTTAPALAM, PALAKKAD DISTRICT.** **BY ADVS. SRI.P.R.SHAJI** ## **RESPONDENT/S:** |**ENT/S**<br>**:**|| |---|---| |**1**|**ACCOUNTANT GENERAL (A&E) OF KERALA,**| ||**OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL,**| ||**THIRUVANANTHAPURAM-695 001.**| |**2**|**THE ASSISTANT EDUCATIONAL OFFICER,**| ||**OTTAPALAM, PALAKKADU DISTRICT-679 101.**| |***ADDL.**|**RUKMANI @ BALAMANI AMMA,**| |**R3**|**AGED 82 YEARS,**| ||**W/O. RAGHAVAN EZHUTHACHAN,**| ||**PATHINARUPOTHIYIL HOUSE,**| ||**VELLIYADU, MANNANUR P.O.,**| ||**OTTAPALAM, PALAKKAD DISTRICT - 679 101.**| |***ADDL.**|**TAHSILDAR OTTAPALAM,**| |**R4**|**PALAKKAD DISTRICT - 679 101.**| |***ADDL.**|**MOHANAN,**| |**R5**|**AGED 57 YEARS,**| ||**PATHINARUPOTHIYIL HOUSE,**| ||**VELLIYADU, MANNANUR P.O.,**| ||**KAVALAPPARA, OTTAPALAM TALUK,**| ||**PALAKKAD DISTRICT -679 101.**| |***ADDL.**|**NALINI,**| |**R6**|**AGED 51 YEARS,**| ||**PATHINARUPOTHIYIL HOUSE,**| ||**VELLIYADU, MANNANUR P.O.,**| ||**KAVALAPPARA, OTTAPALAM TALUK,**| ||**PALAKKAD DISTRICT - 679 101**| **W.P.(C)No.6458 of 2015** **2** ***ADDL.R4 TO R6 ARE IMPLEADED IN IA 1/2019 AS PER ORDER DATED 18.02.2019 AND R3 IS IMPLEADED AS PER ORDER IN IA NO.12561/2018.** **BY ADVS. R1, R2 & R4 - SRI. JESTIN MATHEW, GOVERNMENT PLEADER R3 - SRI. M.R. ARUNKUMAR R5-6 - SRI. K. AMAR RAGH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-11-2019, THE COURT ON 15-11-2019 DELIVERED THE FOLLOWING:** **W.P.(C)No.6458 of 2015** **3** ## **JUDGMENT** This writ petition is filed by the petitioner, who is the daughter of one Raghavan Ezhuthachan, seeking to declare that she is entitled to receive the family pension on account of the petitioner as the sole living physically disabled, unmarried daughter, after petitioner's mother, who is the legally wedded and only living wife of late Raghavan Ezhuthachan, and for other consequential reliefs. Even though the wife of late Raghavan Ezhuthachan viz., Rukmani was not in the party array in the writ petition, later she was impleaded as additional 3[rd] respondent. Brief material facts for the disposal of the writ petition are as follows: 2. Late Raghavan Ezhuthachan, according to the petitioner, has married the 3[rd] respondent viz., Rukmani and in that wedlock, petitioner was born. However, it is admitted that late Raghavan Ezhuthachan had a second wife viz., Dhakshayini, and after her death, Raghavan Ezhuthachan married another person viz., Visalakshi. In the family pension record, the 3[rd] wife Visalakshi was shown as the successor for family pension. However, she pre-deceased Raghavan Ezhuthachan on 06.07.1997. Raghavan Ezhuthachan died on 09.05.2010. Raghavan Ezhuthachan did not have any ## **W.P.(C)No.6458 of 2015** ## **4** issues in Visalakshi. However, in Dhakshayini, additional respondents 5 and 6 were born. 3. Claim of the petitioner is that, on the death of Raghavan Ezhuthachan, petitioner is the only eligible person who is entitled for the family pension of Raghavan Ezhuthachan. Even though petitioner approached the Human Rights Commission for redressal of her grievances and secured orders, the respondents did not take any action to release family pension to the petitioner. However, the authorities have demanded the petitioner for production of certain documents and even though produced the same, it was also not taken into account, and declined family pension to the petitioner. It is thereupon that petitioner has approached this Court by filing this writ petition. 4. The 2[nd] respondent has filed a counter affidavit, stating that Sri. Raghavan Ezhuthachan retired from service on 30.03.1983, and on enquiry, it was found that he had three wives, i.e., petitioner's mother, Dhakshayani and Visalakshi. The third wife Visalakshi was shown as nominee for family pension in the pension records of Raghavan Ezhuthachan. However, as pointed out above, she pre-deceased Raghavan Ezhuthachan. After the death of Visalakshi, there were **W.P.(C)No.6458 of 2015** **5** no nominated claimants. Thereupon, Rugmini, mother of the petitioner applied for family pension and the same was rejected, stating that she is a divorcee and divorced woman is not eligible for family pension after the death of the pensioner. 5. The Human Rights Commission as per order dated 15.05.2012, directed the Senior Accounts Officer, Office of the Accountant General, Kerala to file a report after considering the petition filed by the petitioner seeking family pension. Thereupon, the Accountant General directed the 2[nd] respondent to produce certain documents. The Tahsildar, Ottapalam was also directed to file a report before the Human Rights Commission as to whether the petitioner is the legal heir of late Raghavan Ezhuthachan. The Tahsildar as per report dated 14.06.2012 has informed the Commission that legal heirship certificate cannot be issued to the petitioner. The Human Rights Commission disposed of the complaint by proceedings dated 21.01.2013, holding that since the fatherhood of the petitioner is under dispute, the issue will not come under the purview of the Human Rights Commission. That apart, it is submitted that, since the petitioner has not produced the legal heirship certificate to prove **6** ## **W.P.(C)No.6458 of 2015** that she is the legal heir of Late Raghavan Ezhuthachan, the 2[nd] respondent is not in a position to recognize her as the legal heir of the deceased person. 6. The Additional 4[th] respondent, i.e., the Tahsildar, Ottapalam, Palakkad District has filed a counter affidavit, basically contending that legal heirship certificate is issued in the name of respondent Nos.5 and 6, who are allegedly the children of Dakshayani, and therefore, the claim raised by the petitioner cannot be sustained under law. It is also pointed out that, when the first wife of late Raghavan Ezhuthachan viz., the mother of the petitioner, Rugmini is alive, petitioner is not entitled to raise any claim for family pension. 7. I have heard learned counsel for the petitioner, learned Government Pleader as well as the respective counsel appearing for the party respondents, and perused the pleadings and the documents on record. 8. Learned counsel for the petitioner submitted that, since Rugmini is the legally wedded wife of late Raghavan Ezhuthachan, she is the person entitled to get family pension during the life time of Rugmini. Even though Raghavan Ezhuthachan has married Dakshayani and Visalakshi, the said marriages cannot be treated as a **7** ## **W.P.(C)No.6458 of 2015** valid one rather those are illegal marriages and the children outside the wedlock cannot be said to be entitled for the family pension of late Raghavan Ezhuthachan. Learned counsel in that regard has invited my attention to the judgment of this Court in ' _**Paru v. State of Kerala**_ ' [2010 (1) KLT 790], wherein it was held that the Kerala Service Rules does not give an employee of Government any right to nominate a specific person to receive family pension when his legally wedded wife is alive and her status as wife has been declared by a Civil Court in a suit instituted by him. 9. True, in the counter affidavit filed by the respondents, it is stated that, Rugmini is the legally wedded wife of late Raghavan Ezhuthachan. Anyhow, along with the counter affidavit filed by the Tahsildar, Ottapalam, Ext.R4(c) Legal Heirship Certificate dated 26.06.2012 is produced, from where, I am satisfied that the Tahsildar has declared that respondent Nos.5 and 6, i.e., the children of late Raghavan Ezhuthachan to Dakshayani are the legal heirs of late Raghavan Ezhuthachan. However, fact remains, according to learned counsel for the petitioner, the claim of the petitioner was not considered and ## **W.P.(C)No.6458 of 2015** **8** respondent Nos.5 and 6 have secured the legal heirship certificate from the additional 4[th] respondent, as is specified above, behind the back of the petitioner and the first legally wedded wife of Raghavan Ezhuthachan, viz., Rugmini. 10. Having evaluated the situations and taking into account the documents produced and the pleadings put forth by the respective parties, I am of the considered opinion that, the legal heirship certificate issued by the Tahsildar, Ottapalam in favour of additional respondents 5 and 6 cannot be sustained under law. It may be true, the claim raised by the petitioner for and on behalf of herself and the first wife of Raghavan Ezhuthachan viz., Rugmini, in view of the contention put forth by various parties may be a disputed question of fact, but it will have to be taken into account by the Tahsildar and pass appropriate orders. Since I find that none of the aspects put forth above and the factual situations were not taken into account by the Tahsildar, the legal heirship certificate issued in favour of additional respondents 5 and 6 is arbitrary and illegal, liable to be interfered with by this Court under Article 226 of the Constitution of India. **W.P.(C)No.6458 of 2015** **9** 11. Accordingly, I quash Ext.R4(c) Legal Heirship Certificate issued by the Tahsildar, Ottapalam Taluk dated 26.06.2012 and consequentially direct the Tahsildar, Ottapalam to re-consider the matter after receiving application from the petitioner, 3[rd] respondent viz., Rugmini and children of late Raghavan Ezhuthachan born to Dakshayani viz., Mohanan and Nalini. All the parties are given the liberty to submit suitable application before the Tahsildar, Ottapalam within three weeks from the date of receipt of a copy of this judgment, which shall be considered by the Tahsildar, after providing notice of hearing to all the parties and attain finality at the earliest, and at any rate, within three months thereafter, taking into account all the inputs provided by the respective parties. The writ petition is allowed to the above extent. ## **Sd/-** ## **SHAJI P.CHALY** ## **JUDGE** **W.P.(C)No.6458 of 2015** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 A TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED BY MEDICAL BOARD OF THE DISTRICT HOSPITAL, PALAKKAD.** - **EXHIBIT P2 THE DEATH CERTIFICATE OF VISALAKSHI AMMA. EXHIBIT P3 THE DEATH CERTIFICATE OF RAGHAVAN EZHUTHACHAN.** - **EXHIBIT P4 A TRUE COPY OF THE ORDER OF THE HONOURABLE HUMAN RIGHT COMMISSION.** - **EXHIBIT P5 A TRUE COPY OF THE LETTER DATED 14-06-2012 WITH NUMBER P7/KER/1255/LADDL/82-83 ISSUED FROM OFFICE OF THE FIRST RESPONDENT.** - **EXHIBIT P6 A TRUE COPY OF THE CERTIFICATE DATED 05-07-2012 ISSUED BY THE VILLAGE OFFICER, VANIYAMKULAM VILLAGE TO THE EFFECT THAT PETITIONER IS A SPINSTER.** - **EXHIBIT P7 A TRUE COPY OF THE INCOME CERTIFICATE DATED 05-07-2012 ISSUED BY THE VILLAGE OFFICER, VANIYAMKULAM VILLAGE.** - **EXHIBIT P8 THE TRUE COPY OF COVERING LETTER DATED 30-07-2012.** - **EXHIBIT P9 THE TRUE COPY OF REMINDER DATED 20-09-2012. EXHIBIT P10 THE TRUE COPY CERTIFICATE DATED 04-11-2014 ISSUED BY THE REVENUE AUTHORITY TO THE EFFECT THAT APPLICANT IS UNMARRIED.** - **EXHIBIT P11 THE TRUE COPY OF THE INCOME CERTIFICATE DATED 04-11-2014 ISSUED BY THE REVENUE AUTHORITY.** - **EXHIBIT P12 THE TRUE COPY OF THE AFFIDAVIT DATED 04-10-2014 OF THE APPLICANT, DULY CERTIFIED BY THE NOTARY PUBLIC DATED 09.05.2015.** **EXHIBIT P13 A TRUE COPY OF THE COVERING LETTER. EXHIBIT P14 A TRUE COPY OF THE PLAINT IN O.S.NO.394/2015 OF MUNSIFF'S COURT, OTTAPALAM.** **W.P.(C)No.6458 of 2015 11** |**EXHIBIT P15**|**A TRUE COPY OF THE WRITTEN STATEMENT IN**| |---|---| ||**O.S.NO.394/2015 OF MUNSIFF'S COURT,**| ||**OTTAPALAM.**| |**EXHIBIT P16**|**A TRUE COPY OF THE PLAINT IN**| ||**O.S.NO.143/2013 OF MUNSIFF'S COURT,**| ||**OTTAPALAM.**| |**EXHIBIT P17**|**THE TRUE COPY OF THE WRITTEN STATEMENT**| ||**FILED BY THE PETITIONER'S MOTHER (SECOND**| ||**DEFENDANT IN O.S.NO.143/2013 OF MUNSIFF'S**| ||**COURT, OTTAPALAM).**| |**EXHIBIT P18**|**THE TRUE COPY OF THE WRITTEN STATEMENT**| ||**FILED BY THE ELDER SON OF THE SECOND WIFE**| ||**OF LATE RAGHAVAN EZHUTHACHAN, SRI. MOHANAN**| ||**IN O.S.NO.143/2013 OF MUNSIFF'S COURT,**| ||**OTTAPALAM. (FIRST DEFENDANT IN THE ABOVE**| ||**SUIT.)**| |**RESPONDENT'S/S**|**EXHIBITS:**| |**EXHIBIT R4(A)**|**TRUE COPY OF THE PETITION FILED BY**| ||**SMT.BALAMANI AMMA @ RUGMINI AND ANOTHER**| ||**BEFORE THE AFCM, OTTAPPALAM.**| |**EXHIBIT R4(B)**|**TRUE COPY OF THE LETTER NO.REF.C 303/2011**| ||**DATED 17/4/2012 ISSUED BY THE ADDL. GOVT.**| ||**PLEADER, OTTAPALAM.**| |**EXHIBIT R4(C)**|**TRUE COPY OF THE CERTIFICATE NO.K.DIS C2-**| ||**2011/3606/9/400/DATED 26/6/2012.**|