IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.12.2010
CORAM:
THE HONOURABLE MR.JUSTICE K.N. BASHA
Writ Petition No.6855 of 2009
K.M.Arumugam .. Petitioner
Vs.
1. The Principal Accountant General,
(Accounts and Entitlements)
261, Anna Salai,
Madras-18.
2. The Superintendent of Police,
Cuddalore District,
Cuddalore.
3.The Assistant Treasury Officer,
Tittagudi,
Cuddalore District. ..Respondents
Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the records connection with the impugned rejection order passed by the first respondent in Lr.No.AG(A&E)/Legal Cell/W.P.666/2008/1715 dated 18.3.2008 and quash the same and direct the respondents to consider the claim of the petitioner to make entry in the pension book of the petitioner about the name of the petitioner's legally wedded wife Tmt.Gandhi as a nominee to receive family pension as per the pension rules.
For petitioner : Mr.G.Elanchezhiyan
For respondent No.1 : Mr.V.Vijayashankar
For respondents 2 & 3: Mrs.Lita Srinivadan
Government Advocate
O R D E R
The petitioner has come forward with this writ petition seeking to issue a writ of Certiorarified Mandamus calling for the records in connection with the impugned rejection order passed by the first respondent in Lr.No.AG(A&E)/Legal Cell/W.P.666/2008/1715 dated 18.3.2008 and quash the same and direct the respondents to consider the claim of the petitioner to make entry in the pension book of the petitioner about the name of the petitioner’s legally wedded wife Tmt.Gandhi as a nominee to receive family pension as per the pension rules.
2. The case of the petitioner is that he is a retired selection Grade Sub Inspector of Police. The petitioner was lastly working at Neyveli Township Police Station, Neyveli, Cuddalore District and he was allowed to retire from service on 30.04.1997 on attaining the age of superannuation. The petitioner was married to one Jothi in the year 1965 and out of the lawful wedlock, four children were born to the petitioner. Due to sudden illness, the wife of the petitioner could not do any work as per the doctor’s advice. As the first wife of the petitioner died on 31.10.1995, the petitioner married Smt.Gandhi on 08.12.1995 as per the Hindu Rites and Customary. Accordingly, the petitioner made representations to the Superintendent of Police on 22.11.1995, 05.07.2004, 21.3.2005 to make an entry in the pension proposal in the name of his wife as nominee to receive family pension after the life time of the petitioner. The petitioner received a letter after a lapse of ten years from the Superintendent of Police, Cuddalore dated 25.05.2005 directing the petitioner to approach the Treasury Officer. Thereafter, the petitioner made a representation to the Assistant Treasury Officer, Tittagudi with a request to make an entry in the name of his wife Tmt.Gandhi to receive family pension after the life time of the petitioner. The Assistant Treasury Officer replied in his letter dated 21.09.2005 that with regard to nomination of the pensioner nominee, the pension sanction authority is competent to make an entry about the nominee of the pensioner and for that, the District Police Officer has to send a recommendation to the Accountant General Office. Accordingly, the District Police officer, Cuddalore has issued a letter to the petitioner and asked him to submit relevant documents, so as to send to the Accountant General’s Office to receive family pension. Accordingly, the petitioner submitted relevant documents, but there is no reply. Then the petitioner approached the District Police Officer, Cuddalore,who, in turn, directed the petitioner to approach the pension sanction authority with regard to the claim made by the petitioner. The petitioner approached the first respondent and made several representations to consider his claim and to make an entry in the pension book about the name of his wife, Tmt.Gandhi as his nominee. The first respondent has not passed any order. Therefore, the petitioner was constrained to file a writ petition in W.P.No.666 of 2008 directing the petitioner to consider the claim of the petitioner, in the light of the Pension Rules and as per the Government orders based on the representations of the petitioner dated 22.11.1995, 05.07.2004, 21.3.2005 and 29.6.2006. This Court passed an order dated 08.01.2008 in the above said writ petition directing the first respondent to consider the representation of the petitioner dated 29.6.2006 and pass orders on merits and in accordance with law, within a period of eight weeks from the date of receipt of a copy of the said order. On receipt of the said order of this Court, the first respondent has rejected the request of the petitioner on the ground that the second wife is not entitled to get family pension, as per the rules. Aggrieved against the said order, the petitioner has come forward with the present writ petition seeking for the above said relief.
3. Learned counsel for the petitioner would contend that on 18.3.2008, the impugned order was passed by the first respondent by applying the Tamil Nadu Pension Rules, which is not applicable to the facts of the instant case. It is contended that the first respondent proceeded on the basis as if the proposed nominee is not legally wedded wife of the petitioner. It is submitted that the petitioner married the proposed nominee Tmt.Gandhi only after the death of his wife and the marriage was conducted in the manner known to law, as per the Hindu Rites and Customary. Learned counsel would submit that the petitioner has enclosed the certificate of marriage issued by the Marriage Registrar Office, Thittakudi and the same was also looked into by the first respondent. Therefore, it is contended that the impugned order passed by the first respondent is liable to be quashed. Learned counsel for the petitioner, in support of his contention would also place reliance on the decision of the Hon’ble Supreme Court in Luxmi Kunwar Vs. State of Rajasthan reported in SCSR (13) 95.
4. Heard Mr.V.Vijayshankar, learned counsel for the fist respondent and Mrs.Lita Srinivasan, learned counsel for the second respondent for the second respondent.
5. This Court carefully considered the submissions on either side and perused the impugned order passed by the first respondent herein.
6. A perusal of the impugned order reveals that the first respondent has proceeded on the basis that as if the proposed nominee Smt.Gandhi is not the legally wedded wife of the petitioner herein. It is seen that the first respondent has simply overlooked the materials produced before the authority by the petitioner viz., the Registrar of Marriages, Tittakudi. It is pertinent to note that the petitioner, after the death of his first wife, had married the proposed nominee, Smt.Gandhi in a manner to known to law, as per the Hindu Rites and Customary. The said fact made is crystal clear from the perusal of the certificate of Registration issued by the Marriage Registrar Office, Thittakudi.
7. Learned counsel for the petitioner also rightly placed reliance on the decision of the Apex Court in Luxmi Kunwar’s case referred above. It is relevant to extract Paragraph 3 of the decision which reads as follows:
“3.This court in Smt.Bhahgwanti Vs. Union of India (1989) 4SCC 397 had occasion to deal with identical situation under the Central Services Rules which were pari materia to the Rajasthan Rules. This Court struck down part of the rule which excluded the marriage after retirement from the definition of “Family”. We adopt the reasoning of his Court in Bhagwanti case (supra) and hold that Note 2 to Rule 269-D reproduced above is arbitrary and as such ultra vires Article 14 of the Constitution of India. We, therefore, allow the petition, direct the respondents to consider the case of the petitioner for grant of family pension ignoring Note 2 to Rule 268-D which we have struck down. The family pension be finalised within three months from today. All the arrears of the pension shall be paid to the petitioner within one month thereafter. No costs.”
8. The principle laid down in the decision cited supra is squarely applicable to the facts of the present case, in view of the reasons assigned by this Court. Therefore, this Court is of the considered view that absolutely there is no legal impediment for the first respondent to deny the claim of the petitioner to the effect that the request to the first respondent to enter the name of said Smt.Gandhi as a nominee to receive the family pension, after the lifetime of the petitioner. In view of the same, this Court is constrained to set aside the impugned order passed by the first respondent. Consequently, the second respondent is directed to follow the procedure contemplated as per the rules in entering the name of the proposed nominee of the petitioner to receive the family pension and on receipt of the proposal from the second respondent, the first respondent shall pass orders on merits and in accordance with law by entering the name of Smt.Gandhi as nominee to receive family pension after the life time of the petitioner. It is made clear that the above said exercise shall be completed within a period of two weeks from the date of receipt of this order and the first respondent on receipt of the said proposal from the second respondent, shall complete the exercise within a period of four weeks from the date of receipt of proposal from the second respondent,
9. The writ petition is disposed of accordingly. No costs.
VJY
To
1. The Principal Accountant General,
(Accounts and Entitlements)
261, Anna Salai,
Madras-18.
2. The Superintendent of Police,
Cuddalore District,
Cuddalore.
3.The Assistant Treasury Officer,
Tittagudi,
Cuddalore District
