IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21/04/2006
CORAM
THE HON'BLE MR. JUSTICE P.K. MISRA
WP.No.511 of 2003
to
WP.No.516 of 2003,
2365, 3786, 5546,
35879, 35906, 35907,
36160 of 2003,
9403 of 2004 and 1285,
580, 22893 and 22894 of 2005
&
W.P.M.P.No.43608, 43632
and
43633 of 2003
and
678 of 2005
A. Mary,
W/o.P. Joseph
Cherukuzhiveedu, Annucode,
Desam, Koolamcode Post,
Vilavankode Taluk,
Kanyakumari District. .. Petitioner in WP.511/2003
-Vs-
1. The Government of Tamil Nadu,
rep. by its Secretary,
Tamil Development and Culture
Department, Fort St. George,
Chennai 600 009.
2. The Director of Tamil Development
and Culture, Kuralagam,
Chennai 108.
3. The District Collector,
Kanyakumari District
at Nagercoil .. Respondents in WP.511/2003
Petition filed under Article 226 of the Constitution of India for the
issuance of writ of declaration declaring Section 3 of the payment of Pension
to Tamil Scholars and Miscellaneous Provision Act, 1983 and the discretion
given to the Govt. to pay pension/Grant/Scholarship to Tamil Scholars under
the Act 23 of 1983, the Rules issued in G.O. Ms.No.21 Tamil Development
Culture dated 20-6-1984 and the consequential order of the 1st respondent
issued in G.O.Ms.No.255 Tamil Development and Culture Dept. dated 13-11-2002
in so far as not paying monthly pension to the petitioner as discriminatory,
violative Article 14 and 21 of the Constitution of India, as null and void and
direct the respondents to pay monthly pension to the petitioner from 1-1-2000.
!For Petitioner : Mr.K.Ravichandrababu
^For Respondents: Mr.S.Gomathynayagam
Special Govt. Pleader
:COMMON JUDGMENT
All these writ petitions raise common questions of fact and law and
therefore disposed of by this common judgment.
2. The petitioners in different writ petitions are either
participants in the movement relating to merger of Tamil areas within the
State of Tamil Nadu, who had undergone imprisonment in connection with such
movement, or widows of such participants. The agitations relating to merger
of Kanyakumari District and Sengottai Taluk had been launched during the year
1954. Similarly, the agitation for the merger of Tiruttani and Pallipattu had
been launched in the year 1953. With a view to compensate the sufferings
undergone by such agitators as well as to recognise their contributions
towards merger of such areas and for development of Tamil language, the State
Government had enacted Tamil Nadu Payment of Pension to Tamil Scholars and
Miscellaneous Provisions Act,1983 (hereinafter referred to as the Act).
Under the Rule making power envisaged under such Act, the Government had also
framed statutory rules known as Tamil Nadu Payment of Pension to Tamil
Scholars and Miscellaneous Provisions Rules, 1984, hereinafter referred to as
the Rules.
Initially under Section 3(1) of the Act, a person was eligible to
receive monthly pension of Rs.150/- or a grant not exceeding Rs.10,000/- or
both. However, subsequently by amendment, the quantum of pension has been
increased from time to time and ultimately such pension has been fixed at
Rs.3,000/- per month with Rs.15/- per month as medical allowance. Similarly,
the amount payable towards family pension to the legal heirs of such
participants has been correspondingly increased. However, there is no change
effected in the grant of lumpsum amount not exceeding Rs.10,000/-. The
Government has been sanctioning payment of such amount from time to time to
various participants as evident from G.O.Ms.No.72 dated 3.3.1988, when monthly
pension was sanctioned at the rate of Rs.250/- per month to the applicants.
Subsequently, under G.O.Ms.No.412 dated 15.12.1989, the Government had
sanctioned monthly pension to another 952 persons with effect from 1.10.19 89.
While the matter stood thus, some of the claimants, who had participated in
connection with some of the agitations were denied payment on the ground that
they were not able to produce certificate from jail authorities. The dispute
was taken to the High Court and ultimately in the judgment reported in 1997
Writ L.R. 639 (K. ARUMUGHAM NADAR v. GOVT. OF TAMIL NADU AND TWO OTHERS),
a learned single Judge of this Court laid down various principles relating to
consideration of such application. In one such writ petition, namely,
W.P.No.14718 of 1993, in the counter the State Government had indicated that
under the provisions of the Act and the Rules, payment of pension is not only
contemplated to the Tamil Scholars but also to those who had fought for merger
of Tamil areas within the State of Tamil Nadu. The relevant portion of such
counter affidavit is in fact extracted in the judgment of the High Court
reported in 1999-III MLJ 728 (C. NATARAJAN AND THERS v. THE GOVERNMENT OF
TAMIL NADU AND OTHERS). Such decision related to many of the petitioners.
Under such decision, the learned single Judge had ultimately issued the
following directions :-
20. Under these circumstances, I pass the following Orders :
(1) The impugned orders of the first respondent in W.P.Nos.20799, 21
924, 21925, 21927 and 22587 of 1993 are quashed and the matter is remitted to
the first respondent Government for passing appropriate fresh orders.
(2) The first respondent-Government is directed to consider the claim
of the petitioners in W.P.Nos.14718, 15899, 19645, 19646 of 1993 and 1788 of
1994 and pass appropriate orders on the basis of the materials placed by them.
(3) The first respondent is directed to take note of the observations
made above while passing fresh orders.
(4) If any additional information/material is required, it is open to
the first respondent to get the same from the respective petitioners.
(5) The order shall be passed within a period of three months from the
date of receipt of a copy of this order.
3. Even though a specific time limit was indicated, no order was
passed by the Government and, at that stage, the present petitioners had filed
Contempt Petitions. After receipt of notice in those contempt petitions, the
Government passed orders on 13.11.2002 sanctioning Rs.10,000/- as lumpsum
payment to those of the petitioners who were participants in the movement and
a sum of Rs.5000/- to those of the petitioners who are widows of the
participants. The contempt petitions were subsequently closed on 13.12.2002
leaving it open to the petitioners to challenge such order passed by the
Government and observing that it would be open to the petitioners to receive
such amount which has been granted by the Government. Thereafter the present
writ petitions have been filed challenging the validity of the provisions
contained in the Act and the Rules to the extent it provides for grant of
Rs.10,000/- as lumpsum. It is claimed that either monthly pension should be
paid or the lumpsum amount be increased.
3.1. The main contention of the petitioners is to the effect
that almost all the participants who had filed applications earlier had been
paid monthly pension, which was being increased from time to time, whereas the
Government, in the present case, has granted merely a payment of Rs.10,000/- /
Rs.5,000/- as the case may be without any rhyme or reason, even though the
petitioners had prayed for payment of monthly pension. It is submitted that
no guidelines have been fixed either in the Act or in the Rules as to whether
a participant should be paid monthly pension or a participant should be paid
lumpsum not exceeding Rs.10,000/-. It is also contended that grant of family
pension to other persons who had applied and refusal to grant family pension
to the present petitioners and instead granting them a lumpsum amount as one
time grant is factually discriminatory and at any rate no reason has been
given in such orders passed by the Government. The petitioners have prayed
that the Government should be directed to grant monthly pension to the
petitioners. It has been submitted that the amount already paid as one time
grant can be adjusted towards such pension.
4. In the counter affidavit filed on behalf of the Government
the history of the movement and the G.Os issued from time to time were
indicated and it was further indicated that there has been some administrative
delay and subsequently the Government had sanctioned lumpsum payment of
Rs.10,000/- / Rs.5,000/- as the case may be.
5. From the materials on record, it is apparent that on
earlier occasions when the Government had passed orders sanctioning payment,
the Government had sanctioned monthly pension which was being increased from
time to time as per the different G.Os issued by the Government. In the
impugned G.O.Ms.No.255 dated 13.11.2002, (W.P.No.511 of 2003 ) sanctioning
lumpsum amount to these petitioners, no reason has been indicated. Obviously
all the petitioners had applied for grant of monthly pension. No reason
whatsoever has been indicated in the present impugned orders as to why the
present petitioners are only granted lumpsum amount of Rs.10,000/- or
Rs.5,000/- as the case may be. There is nothing on record to indicate as to
how the cases of the present petitioners are in any way different from the
other grantees who had been sanctioned monthly pension under different G.Os.,
namely, G.O.Ms.No.412 dated 15.12.1989 and G.O.Ms.No.123 dated 20.7.1993. For
example, in the matter relating to grant in respect of the petitioners in
W.P.Nos. 512, 35906, 511, 513 of 2003 and one G. Srinivasan, nothing has
been indicated, save and except the narration relating to previous litigation
and the order passed by the Court on earlier occasion. Since such orders do
not indicate any reason and in the counter affidavit also except narrating
different facts, nothing has been explained as to what is the basis for
granting such lumpsum and not monthly pension, such orders are liable to be
quashed.
6. Learned counsel appearing for the petitioners has
submitted that in the provisions of the Act and the Rules, no guidelines have
been given as to when a person should be granted monthly pension and when such
person should be granted lumpsum.
7. Under the Rules, a Form has been prescribed indicating in
what format the application should be made. One such column relates to income
of the applicant. Similarly one other column relates to the period of
imprisonment undergone by the applicant. Similarly, in the Form, the
applicant is also required to indicate whether he is seeking for monthly
pension or lumpsum grant. Initially when the provisions had been made, the
lumpsum grant envisaged was Rs.10,000/-, whereas monthly pension envisaged was
Rs.150/-. Keeping in view the rate of interest in those years, it may be
inferred that payment of Rs.150/- per month, i.e., Rs.1,800/- per year, was
considered as almost equivalent to lumpsum payment of Rs.10,000/-. Obviously,
at that stage, the difference was not perceptible. It is therefore evident
that during those days grant of lumpsum amount or monthly pension was
obviously more or less dependent upon the option given by the applicant. In
course of time, however, the amount of monthly pension has steadily increased,
whereas the amount payable as lumpsum grant has not at all been increased.
Therefore, even though initially there was no further necessity to indicate
the guidelines when lumpsum amount should be granted and when monthly pension
should be granted as such course was dependent upon the option given by the
applicant, the difference in the amount of benefit as it stands now is
markedly visible and therefore guidelines should be indicated.
8. Nowhere in the guidelines it is indicated under what
circumstances grant of monthly pension should be permitted and under what
circumstances one time lumpsum payment not exceeding Rs.10,000/- should be
permitted. The question is whether in the absence of any such guideline, the
provisions contained in the Act and the Rules delegating such power to the
Executive authority can be said to be hit by the vice of excessive delegation.
9. There is a definite line of judicial thinking to the
effect that even in the absence of specific guideline, the authority can take
into consideration the object of the legislation, the mischief which is sought
to be cured by the legislation and other surrounding circumstances. In this
context it is also well accepted that when such authority is conferred on high
ranking functionary so that the vice of excessive delegation can be said to be
diluted to a large extent. In the present case, the High Level Committee has
been conferred with such authority. While such Committee deciding the matter
can always be guided on the object of the legislation, which is to recognise
and reward the efforts of the persons who have suffered on account of such
movement. Apart from the above, the statutory Form in which the application
is required to be made contains queries regarding the income of the applicant
and the period of imprisonment. From such information, required to be given
in the application, it can be reasonably concluded that it is the intention of
the Legislature to come to the financial aid of those persons who have
sacrificed for the cause of the development of the Tamil language/State.
While identifying such persons, if the Committee comes to a conclusion that
the applicant is financially very well-off, there may not be any necessity of
granting monthly pension to such person and instead such person can be
honoured with grant of lumpsum amount.
10. As already indicated, initially the two types of benefit
were almost similar and, therefore, the applicant himself would be praying for
payment of monthly pension or lumpsum grant depending upon his own age and
other circumstances. In view of the gross disparity in the benefit now
available, obviously, the applicants would always prefer to get the benefit of
monthly pension rather than the lumpsum grant. Obviously, the prayer made by
such applicants is entitled to serious consideration and the Committee should
ordinarily accept the method of benefit claimed by the applicants. However,
even though for the aforesaid reasons and keeping in view the presumption
regarding validity of an Act or Rule, the provisions need be granted, it would
be better for the Government to prescribe by Rules the method and norms for
identifying as to whether the applicant should be given monthly pension or
lumpsum payment. Moreover, even though the amount of monthly pension has been
steadily increased, there has not been any corresponding increase in the
amount payable as lumpsum grant. The State Government should do well to look
into this aspect and appropriately increase the lumpsum payable.
11. Even though the provisions of the statute and the Rules
are being upheld, albeit reluctantly, the validity of the orders passed by the
Respondent No.1 in the facts and circumstances of the case are required to be
considered. It is obvious from the materials on record that all the
applicants had applied for grant of monthly pension. From the materials on
the record it is apparent that many similar applications considered earlier
time were decided in favour of those applicants by granting the monthly
pension. As a matter of fact all the applicants who had been conferred the
benefit hitherto apart from the present petitioners appear to have been given
the benefit of monthly pension rather than any lumpsum payment, obviously
because such applicants had prayed for grant of monthly pension. In the
impugned orders passed by the Government, no reason has been given as to why
instead of granting monthly pension lumpsum payment has been granted. In the
counter affidavit also nothing has been indicated as to why the applicants
were not given the benefit of monthly pension and were merely granted lumpsum.
The only excuse seems to be indicated in the counter is in the following words
:-
… The court had directed to pass orders in accordance with law
within a period of four months. Due to the financial crisis of the State, the
Government had decided to sanction a sum of Rs.10,000/- to the petitioner as
an one time Grant and issued G.O.Ms.No.255 Tamil Development and Culture
Department dated 13.7.2002 and sanctioned a sum of Rs.10,000/- to the
petitioners as one time grant.
12. In my considered opinion, the so called financial crisis
cannot be considered as a sufficient justification for mechanically granting
lumpsum grant instead of granting monthly pension, more particularly when
other applicants had been given the benefit of monthly pension. A reading of
the counter affidavit makes it clear that as if the respondents were merely
going through the formality of complying with the previous direction of the
High Court possibly because of the pendency of Contempt proceeding. As a
matter of fact, even though there was no specific direction in the earlier
decision as to whether monthly pension should be given or lumpsum grant should
be given, it is obvious from the tenor of the judgment that the learned Judge
at that stage intended that these applicants should be treated at par with the
applicants whose applications had been allowed and who had been given the
monthly pension.
13. A contention has been raised by the respondents that the
petitioners have already accepted the benefit of grant of Rs.10,000/- and
therefore their prayer for grant of monthly pension should not be considered.
From the materials on record, it is apparent that the applicants have accepted
such benefit of Rs.10,000/- without prejudice to their right to claim monthly
pension and, therefore, it cannot be said that such applicants have waived
their right to claim monthly pension instead of lumpsum grant.
14. For the aforesaid reasons, the impugned orders cannot be
sustained and are liable to be quashed. The respondents are directed to
consider the applications and to take appropriate decision regarding payment
of monthly pension. Since the applicants have already been found to be
eligible by the respondents, the only question now required to be considered
is whether such applicants should be paid monthly pension or not. This may be
done keeping in view the prayer in the applications made by each individual
applicant and also the financial status of such applicants. In the event, it
is decided to give monthly pension to any applicant, the sum of Rs.10,000/- or
Rs.5,000/- already granted can be adjusted towards such monthly pension. This
exercise should be completed within a period of twelve weeks from the date of
receipt of the order. Accordingly, the writ petitions are allowed to the
extent indicated above. No costs.
dpk
To
1. The Government of Tamil Nadu,
rep. by its Secretary,
Tamil Development and Culture
Department, Fort St. George,
Chennai 600 009.
2. The Director of Tamil Development
and Culture, Kuralagam, Chennai 108.
3. The District Collector,
Kanyakumari District at Nagercoil.