IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.11.2009 CORAM THE HONOURABLE Mr.JUSTICE R.SUDHAKAR W.P.NO.3396 of 2006 1.Chellammal 2.Thirupura Sundari .. Petitioners Versus 1.The State of Tamil Nadu rep. by the Secretary to Government Transport Department, Fort St.George, Chennai 600 009 2.The State of Tamil Nadu rep. by the Secretary to Government Finance Department, Fort St. George, Chennai 600 009. 3.The Tamil Nadu State Transport Corporation (Villupuram Division II) Ltd. rep. by its Managing Director, Rangapuram Vellore 632 009. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for a writ of certiorarified mandamus calling for the connected and relevant records relating to the orders passed by the third respondent in Lr.No.12223/r[ep 12/j.m.ngh.f (tp) ypl;.nt. K/04 dated 6.1.2005 and quash the same and direct the first respondent to extend the benefit of Family Pension granted in G.O.Ms.No.189 Transport Department dated 13.8.2004 to the petitioners. For Petitioner ... Mr.D.Sadhasivan For R1 and R2 ... Mrs.C.K.Vishnupriya, Addl. Govt. Pleader. For R3 ... No appearance - - - - - ORDER
This petition is filed calling for the connected and relevant records relating to the orders passed by the third respondent in Lr.No.12223/r[ep 12/j.m.ngh.f (tp) ypl;.nt. K/04 dated 6.1.2005 and quash the same and direct the first respondent to extend the benefit of Family Pension granted in G.O.Ms.No.189 Transport Department dated 13.8.2004 to the petitioners.
2.The two petitioners herein are the spouses of the late employees of the respondent State Transport Corporation. With effect from 01.05.1975, consequent to the formation of the various Transport Corporations, the Government employees working in Transport Department were absorbed into the Corporation of the Government granting certain benefits as per G.O.Ms.No.1028 (transport) dated 23.08.1985. The retired employees and the family members were granted pension, gratuity, provident fund, earned leave, etc.
3.The Transport Corporation Retired Employees Association filed W.P.No.21204 of 1992 for grant of family pension under the Pension Rules and by an order dated 07.03.2001, this Court in the above said writ petition granted the benefit of family pension under the existing Pension Rules to the families of eligible members of the Tamil Nadu State Transport Retired Employees Association. As such, order was implemented in G.O.Ms.No.110 dated 06.06.2002 and paragraph 6 of the said G.O. reads as follows –
6.The Government also direct that the eligible family pensioners are entitled to Family Pension and D.A. as applicable from time to time to Government pensioners as per the existing Pension rules.
4.In the said Government Order, in paragraph 10, it was stated that the order will take effect from 07.03.2001, i.e. the date of the judgment of this Court in W.P.No.21204 of 1992 or from the date of death of the eligible pensioner, whichever is later. This paragraph 10 came to be challenged by way of individual writ petitions and that portion of the Government Order which fixed the date as 07.03.2001 as the eligible date was struck down by this Court in W.P.No.482 of 2008 dated 23.06.2009. It was clearly held in the earlier decision that the family pension will be on the death of the eligible pensioner.
5.In the present case, the two petitioners claim family pension on the death of the eligible pensioners who were retired employes of the Transport Corporation. The respondents rejected the claim stating that a lumpsum amount has been made in lieu of monthly pension and therefore they are not entitled to family pension. Contending that similarly placed persons have been granted benefit and that the respondents are acting arbitrarily denying the benefits the present writ petition has been filed to quash the impugned proceedings.
6.When the matter is heard by this Court today, the petitioners have a benefit of G.O.Ms.No.581 dated 18.09.2006 whereby the petitioners in this case who have already drawn lumpsum amount in lieu of monthly pension have been granted the benefit of monthly pension on the death of the eligible pensioner. Clause 4(d) of G.O.No.581 dt.18.09.2006 read as follows –
(d)Family pension will, however, be admissible to the families of those Government servants absorbed in the State Public Sector Undertakings/Boards/Cooperative Institutions/ Central Public Sector Undertakings/Autonomous Bodies etc. who drew the lump sum amount in lieu of monthly pension on their absorption on the date of its becoming due and thus do not draw any monthly pension on the date of death.
7.In effect, what has been denied by the impugned proceedings has been granted to the petitioner in terms of G.O.Ms.No.581 dt.18.09.2006. However, there is one difficulty in the said G.O. which may affect the petitioners pecuniarly which is Paragraph 5 and it reads as follows –
5.This order takes effect from the date of issue of this Order or from the date following the date of death after retirement whichever is later in respect of those absorbed on or after 1.4.64.
8.In this case, as can be seen from the Paragraph 5 of the Government Order, the Government Order comes into effect from 18.09.2006 as that is the later date. In effect the family pension is denied to the petitioners from the date of death of the eligible pensioner till 17.09.2006.
9.As has been pointed out above, with regard to G.O.No.110 dated 06.06.2002, the effective date for applicability of the family pension is the date of death of the eligible pensioner and not another date, i.e. the date of decision of this Court, i.e. W.P.No.21204 of 1992 dt.07.03.2001. On the same analogy, in this case also, the Government will have to consider the eligibility for family pension from the date of death of the eligible pensioner and not from the date of the G.O., namely 18.09.2006.
10.Though no specific prayer is made in the writ petition, the Government is directed to consider the effective date of G.O. in the light of the earlier decision of this Court in W.P.No.482 of 2008 dated 23.06.2009 which reads as follows –
10.The only point in issue is whether the effective date for the purpose of granting the family pension will be 07.03.2001 or the date of the death of the eligible pensioner whichever is later?
11.The pensioner in this case died prior to 07.03.2001 and therefore, the petitioner is entitled to get family pension in terms of Rule 76 of the Tamil Nadu Pension Rules and in accordance with the G.O.Ms.No.110, Transport Department, dated 06.06.2002. However, in the Government Order, no reason has been given as to why effective date has been taken as 07.03.2001. Under Rule 76 of the Tamil Nadu Pension Rules, 1978, the family pension comes into operation on the death of the pensioner. That being the position, when the Rule itself provides for family pension on the death of the retired employee, the Government cannot fix another cut-off date viz., 07.03.2001. The decision of the learned Single Judge rendered on 07.03.2001 gives the family members viz., widow or widower, as is the case, an entitlement to get family pension under the Tamil Nadu Pension Rules, 1978. The date of the decision cannot be taken as cut-off date as the petitioner will lose her valuable claim for family pension till the cut-off date (i.e.) 7.3.2001 even though the pensioner died earlier. This will be contrary to Rule 76 of the Tamil Nadu Pension Rules, 1978. No reason is stated as to why the date is fixed as 7.3.2001. It is contrary to the Tamil Nadu Pension Rules, 1978. As per the ruling of the courts cited earlier, if pension is an entitlement based on the service, family pension also accrues and cannot be denied. In this case, family pension is granted, but the date is fixed based on the decision of court. This cannot be accepted because the decision of the court in this case confers the right to family pension. The family pension is governed by Rules and the Government cannot fix another date contrary to the Rules. Hence, para 10 of the Government Order No.110, Transport Department, dated 6.6.2002, is held to be contrary to the provisions of Tamil Nadu Pension Rules, 1978, in particular, Rule 76.
12.In such view of the matter, clause-10 of the G.O.Ms.No.110, Transport Department, dated 06.06.2002 in so far as it fixes the effective date as 07.03.2001 is set aside. The petitioner in this case will be entitled to family pension under the Tamil Nadu Pension Rules, 1978, from the date following the date of death of the pensioner/employee, viz., 28.10.1994 and not from the date as specified in para 10 of the G.O.Ms.No.110 Transport Department dated 6.6.2002. If any application is required, petitioner shall submit the same within four weeks from the date of receipt of a copy of this order. Thereafter, the respondent shall pass appropriate orders in terms of the order of this Court for family pension within a period of four weeks from the date of such application. This writ petition is allowed. No costs.
11.If the said order of this Court has already been given effect to, the same benefit shall be extended to the petitioners for family pension as well.
12.With the above direction, the writ petition stands disposed of. No costs.
rgr
To
1.The State of Tamil Nadu
rep. by the Secretary to Government
Transport Department,
Fort St.George,
Chennai 600 009
2.The State of Tamil Nadu
rep. by the Secretary to Government
Finance Department,
Fort St. George,
Chennai 600 009.
3.The Tamil Nadu State Transport Corporation
(Villupuram Division II) Ltd.
rep. by its Managing Director,
Rangapuram
Vellore 632 009