“CR”

1. Note I(1)(a) under Rule 118 in Part III of Kerala Service Rules, for short, the “KSR”, provides that the share of DCRG due to minor children should be paid to the surviving parent except when the surviving parent happens to be a Muslim lady and that where there is no surviving parent or if the surviving parent is a Muslim lady, the payment be made to the person producing the guardianship certificate. The petitioner challenges this provision. Consequential directions are also sought for.

2. T.K. Mansoor, an employee of Kerala State Electricity Board, died leaving behind his wife and their two minor children. KSR applies to KSEB employees. Relying on the impugned rule, the share of Death cum Retirement Gratuity due to Mansoor’s minor children was not paid to their surviving parent, the petitioner, only on the ground that she happens to be a Muslim lady. Hence, this writ petition.

3. Mansoor’s children, having since attained majority, have been paid their due. However, it is insisted that the issue may be decided as it affects, as a class, Muslim widows of government servants dying intestate, leaving also behind, minor children. It is contended that such women and children form a challenged class, entitled to declaratory remedy in this writ petition raising fundamental issues of equality and equal treatment. it is pointed out that relief no. ii, as sought for, is a declaration in favour of Muslim mothers and not confined to the petitioner and that the delay in the matter was essentially because counter-affidavits were not filed for more than six years and this court had to impose an order of costs on that account, that too, to be paid personally by officers.

Petitioner’s contentions:

4. The petitioner contends that the provision “except when the surviving parent happens to be a Muslim lady” in Note I(1)(a) under Rule 118 of Part III KSR, is unconstitutional, being in violation of Articles 14 and 15(1) of the Constitution and that the said provision is in violation of the public policy and constitutional mandate under Articles 38, 39, 46, 15 and 14 to accord social and economic democracy to women as assured in the Preamble to the Constitution, which constitutional provisions form the core foundation for economic empowerment and social justice to women for economic stability and political democracy. It is contended that those constitutional provisions frown upon gender discrimination and aim at elimination of obstacles. The petitioner further pleads that the impugned provision is in clear violation of the obligations of the State in terms of the international instruments to which India is a party, including the Convention on Elimination of all forms of Discrimination against Women, 1979 (CEDAW) and the Beijing Declaration made in the Fourth Conference on Women in Beijing in September, 2005, hereinafter referred to as the “Beijing Declaration”, which requires all State parties to take up appropriate measures to prevent discrimination of all forms against women. The petitioner pleads that India having accepted and ratified CEDAW in June, 1993, the terms of the declarations of that international convention have to be given effect to, in construing the domestic laws and the constitutional provisions which are in consonance with those international declarations. It is pleaded that those norms are effectively contradicted by the impugned provision. It is further pleaded that on the face of Article 13(2), the impugned provision is an abridgment of the rights conferred under Part III of the Constitution and therefore, the said provision amounts to hostile discrimination against Muslim mothers of minor children of Government servants dying intestate, while or after serving the State of Kerala. The petitioner also points out by pleadings that even in terms of the Mohammedan Law, the provision is to take recourse to the Guardian and Wards Act, 1890 in relation to appointment of guardian, which again is a clear indication th