BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 15/12/2006 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P(MD)No.10144 of 2006 and M.P.No.1 K. Jegalingam ... Petitioner Vs. 1. The Director of Pensions, Government of Tamil Nadu, Madras - 2. 2. The Accountant General, (Accounts and Entitlements) Office of the Accountant General, (Accounts and Entitlements), Chennai - 18. 3. District Educational Officer, Department of Elementary Education, Thallakulam, Madurai. 4. The Assistant Elementary Education Officer, Thirupparankundram @ Thirunagar, Madurai. ... Respondents Prayer Writ petition filed under Article 226 of Constitution of India, praying this Court to issue a writ of mandamus directing the 2nd respondent to pay the family pension to the petitioner as per the Proviso to Sub-rule 6(iii) under Rule 49 of the Tamil Nadu Pension Rules, 1978 from 17.2.2001 to till date and throughout life in accordance with law within the time limit as this Court may impose. !For Petitioner ... Mr.Arun Murugan ^For Respondents 1,3,4 ... Mr.K.Baskaran Addl.Government Pleader For 2nd Respondent ... Mr.P.Gunasekaran :ORDER
Prayer in the writ petition is to issue a writ of mandamus directing the
2nd respondent to pay the family pension to the petitioner as per the Proviso to
Sub-rule 6(iii) under Rule 49 of the Tamil Nadu Pension Rules, 1978 from
17.2.2001 to till date and throughout life in accordance with law within the
time limit as this Court may impose.
2. The brief facts necessary for disposal of the writ petition are as
follows.
(i) Petitioner’s mother by name Thillaivanam worked as Teacher in the
department of School Education and she retired from service on 31.7.1992, after
total service of 37 years, 2 months and one day. Petitioner’s mother was
sanctioned the retirement benefits including pension and she died on 17.2.2001.
During her life time, petitioner’s mother declared the petitioner as her sole
nominee to receive family pension after her death, as the petitioner is a
physically handicapped person and also unemployed.
(ii) Petitioner is a physically disabled person, having 80% disability in
relation to his lower limb, unable to earn his livelihood even after attaining
the age of 25 years. Therefore, petitioner submitted a representation citing
the relevant Government Order and sub-rule 6(iii) of Rule 49 of the Tamil Nadu
Pension Rules, 1978, wherein it is stated that if a son or daughter of the
Government servant is suffering from disability of mind or physically crippled
and unable to earn livelihood after attaining the age of 25 years, family
pension shall be payable to such son or daughter for life.
(iii) It is the case of the petitioner that the Medical Board, Government
Rajaji Hospital, Madurai issued a certificate on 14.8.2005 and certified that
the petitioner is a disabled person with 80% disability in his lower limb. On
20.3.2001 petitioner submitted a representation for the sanction of family
pension, for which he received a reply on 23.3.2001 from the 4th respondent
requesting to produce the original death certificate, legal heirship
certificate, pension passbook of the petitioner’s mother. Petitioner sent the
same and thereafter 4th respondent recommended to the second respondent for the
sanction of family pension to the petitioner through his proceedings
Na.Ka.No.1545/B1/03 dated 29.8.2003. Petitioner also submitted grievance day
petition before the District Collector, Madurai and the same was also forwarded
to the second respondent in June, 2006.
(iv) The Director of School Education in his proceedings dated 21.9.2004
requested the third respondent to submit the proposal before him, who in turn
requested the 4th respondent to forward the details. The 4th respondent
forwarded all the details to the third respondent on 25.4.2004 and thereafter
there is no progress in the matter even though petitioner submitted
representations before the respondents 2 to 4 followed with counsel notice on
16.12.2005. The Tahsildar, Madurai South also issued a certificate to the
petitioner on 26.10.2006 to the effect that the petitioner is having no source
of livelihood and he is an unemployed person. Yet the family pension is not
sanctioned and hence the petitioner has chosen to file this writ petition.
3. The second respondent filed counter affidavit wherein in para 4 it
is stated as follows,
“It is also submitted that Government had issued G.O.Ms.No.327 Finance
(Pension) Department dated 30.8.2001 amending Rule 49 of Tamil Nadu Pension
Rules, 1978, wherein it was directed that in the case of sons/daughters family
pension shall be sanctioned till he/she attains the age of 25 years or upto the
date of his/her marriage whichever is earlier. Since the above G.O. Had not
specified whether family pension is payable to married physically handicapped
son/daughter this respondent had addressed Government for clarification vide
letter dated 2.12.2003 as to whether the physically handicapped son/daughter of
the deceased Government servant is not eligible for family pension from the date
of marriage. Government had replied vide letter dated 13.9.2004 that the issue
is being examined separately and that necessary clarification would be issued
later. Reminder was also issued subsequently vide letter dated 28.9.2004 but
clarification in this regard is still awaited. Conferring the family pension on
married son/daughter is a policy decision to be taken by the Government of Tamil
Nadu. Therefore this Respondent cannot grant family pension without the
clarification/ concurrence of the Government of Tamil Nadu.”
4. The learned counsel appearing for the petitioner submits that Rule
49(6)(iii) of the Tamil Nadu Pension Rules, 1978 mandates the respondents to
sanction family pension to the physically crippled or disabled son or daughter
of the deceased Pensioner, for life and the same can be stopped only if the son
or daughter starts earning his or her livelihood and so long as the petitioner
continues to be a physically crippled person and not earning for his livelihood,
the respondents are bound to sanction the family pension under the said rule.
The learned counsel also argued that the said rule is not amended even according
to the counter affidavit filed by the second respondent and only reason stated
in the counter affidavit is that the second respondent cannot grant family
pension without clarification or concurrence of the Government of Tamil Nadu.
5. The learned counsel for the respondents argued that the
orders/clarification from the Government is awaited and thereafter only the
petitioner’s claim for the sanction of family pension from the date of the death
of the petitioner’s mother will be considered.
6. I have considered the rival submissions made by the learned counsel
for the petitioner as well as the respective respondents.
7. The point in issue is whether the petitioner, who is a physically
disabled son of the deceased pensioner, is entitled to get family pension from
18.2.2001, after the death of her mother as per the Tamil Nadu Pension Rules,
1978 ?
8. The facts in this case are not disputed. Petitioner’s claim for
family pension was rightly recommended by the 4th respondent as early as on
29.8.2003 along with all the required enclosures. The 4th respondent through
his proceedings Na.Ka.No.1545/A1/03 dated 29.8.2003 submitted the proposals with
recommendation to the second respondent to sanction family pension to the
petitioner from 18.2.2001. The receipt of the said recommendation and proposal
is not denied by the second respondent in the counter affidavit. The only
reason stated in the counter affidavit by the second respondent is that the
second respondent is awaiting clarification/concurrence of the Government of
Tamil Nadu.
9. Rule 49 of the Tamil nadu Pension Rules, 1978 is governing the
sanction of pension and family pension. Sub-rule (6) of Rule 49 is relevant to
the case on hand, which reads as follows,
“49(6) The period for which the family pension is payable shall be as
follows:-
(i) in the case of a widow or widower upto the date of death or remarriage,
whichever is earlier;
(ii) in the case of a son until he attains the age of twenty five years;
(iii) in the case of an unmarried daughter, until she attains the age of twenty-
five years or until she gets married whichever is earlier:
Provided that if the son or daughter of a Government Servant including the son
or daughter, born after retirement from the marriage solemnized before or after
retirement of a Government servant, is suffering from any disorder or disability
of mind including mentally retarded or is physically crippled or disabled,
whether such handicap manifests before or after retirement or death while in
service of a Government servant so as to render him or her unable to earn a
living even after attaining the age of 25 years in the case of the sons and 25
years in the case of the daughter, the family pension shall be payable to such
son or daughter for life subject to the following conditions, namely.-
(i) if such son or daughter is one among two or more children of the Government
servant, the family pension shall be initially payable to the minor children in
the order set out in clause (iii) of sub-rule (8) until the last minor child
attain the age of 25 and thereafter the family pension shall be resumed in
favour of the son or daughter suffering from disorder or disability of mind or
who is physically crippled or disabled and shall be payable to him/her for
life.”
Further Rule 49(6)(vi) states,
“such daughter shall not be eligible for family pension from the date on which
she gets married.”
Nowhere in the rule it is stated that a physically disabled son will not be
eligible to get family pension on his marriage.
10. Admittedly the above said rule mandates the respondents to sanction
family pension to the disabled or physically crippled son or daughter for life,
subject to the condition that the family pension payable to such son or daughter
shall be stopped if he or she starts earning for livelihood.
11. It is not the case of the respondents that the petitioner is not a
physically crippled son of the deceased pensioner. It is also not the case of
the respondents that the petitioner is earning for his livelihood. In the
absence of such contention in the counter affidavit, the second respondent
cannot deny the payment of family pension to the petitioner from 18.2.2001 as
recommended by the 4th respondent through his proceedings dated 29.8.2003. The
second respondent is bound by law to sanction the family pension as per rule
49(6) extracted above and the second respondent is not justified in postponing
payment on the plea that clarification/concurrence of the Tamil Nadu government
is awaited. The said pension rule nowhere contemplates getting concurrence of
the Government. Even if the Government issues clarification, the same will not
have any retrospective effect. So far no clarification is also issued. Hence,
the second respondent is not justified in not sanctioning family pension as
recommended by the 4th respondent as early as on 29.8.2003 to the petitioner.
12. A similar issue arose before the Honourable Supreme Court in the
decision reported in 1995 Supp (1) SCC 145 (Bhagwanti Mamtani v. Union of India
and others) wherein a mentally disabled daughter applied for family pension
after six years of her father’s death. The Honourable Supreme Court held that
the delay in making the claim, is not fatal. However, the family pension was
directed to be paid from the month and year in which the person approached the
Administrative Tribunal. In the said decision, the delay aspect was considered
by the Honourable Supreme Court in para 4 and a direction was issued to sanction
family pension from the date of filing of the original application before the
Tribunal and if it was not paid within six months 12% interest was also ordered
to be paid. Relevant paras 4 and 5 are extracted here under,
“4. We have heard learned counsel for the parties. Mr.N.N.Goswami,
learned counsel appearing for the Union of India has contended that the
appellant’s father died in 1976 whereas the appellant approached the Government
of India for the grant of pension in the year 1982. According to him the claim
of the appellant being belated, she is not entitled to any relief by this Court.
We do not agree with the learned counsel. The benefit of the provisions of the
rule to the appellant who is mentally disabled cannot be denied, in the facts
and circumstances of this case, on the ground of delay in approaching the
Government of India. Mr.Goswami further stated that the rule cannot be made
operative retrospectively. According to him the rule came into force with
effect from September 30, 1974, whereas the appellant’s father had retired from
service in the year 1969. We see no force in the contention. The appellant’s
father was drawing pension till he died in the year 1976. The appellant only
became entitled to the disability pension under the above-quoted rule after the
death of her father. We therefore hold that the appellant is entitled to the
family pension in terms of proviso to Rule 54(6) of the Central Civil Services
(Pension) Rules, 1972.
5. We are, however, of the view that the interest of justice would be
met if we direct the Government of India to grant family pension to the
appellant from May 1986 when she approached the Central Administrative Tribunal,
New Delhi. Under the circumstances, we direct the Government of India to grant
family pension to the appellant with effect from May 1, 1986. The arrears of
pension shall be paid to the appellant within six months from today. In case
the arrears are not paid within the abovesaid period, the appellant shall be
entitled to earn interest at the rate of 12% per annum from the expiry of the
period of six months. They payment of arrears and the future pension shall be
made by way of payee’s account cheque in the name of the appellant. The arrears
shall be spread over the period from May 1986 onwards for the purposes of income
tax. …”
13. In view of the above referred judgment of the Honourable Supreme
Court and based on my above finding, a writ of mandamus is issued directing the
second respondent to sanction family pension to the petitioner from 18.2.2001 as
recommended by the 4th respondent in his proceedings Na.Ka.No.1545/B1/03 dated
29.8.2003 within a period of four weeks from the date of receipt of copy of this
order. The second respondent is directed to sanction family pension as ordered
above and pay the arrears of family pension to the petitioner on or before
31.1.2007.
The writ petition is allowed with the above directions. No costs.
Connected miscelleneous petition is closed.
vr
To
1. The Director of Pensions, Government of Tamil Nadu,
Madras – 2.
2. The Accountant General (Accounts and Entitlements),
Office of the Accountant General,
(Accounts and Entitlements), Chennai – 18.
3. The District Educational Officer,
Department of Elementary Education,
Thallakulam, Madurai.
4. The Assistant Elementary Education Officer,
Thirupparankundram @ Thirunagar, Madurai.