Tmt.Neela v. The Secretary to Government, Transport Department, Secretariat, Chennai – 9

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.06.2009Coram:THE HONOURABLE Mr.JUSTICE R.SUDHAKARW.P.No.482 of 2008Tmt.Neela... PetitionerVs.The Secretary to Government,Transport Department,Secretariat, Chennai – 9.... Respondent Writ petition is filed under Article 226 of the Constitution ofIndia praying to issue a writ of certiorarified mandamus, callingfor the records, relating to the G.O.Ms.No.110, TransportDepartment, dated 06.06.2002 and to quash the same conditions inpara-10 as arbitrary and illegal and to direct the respondent to payfamily pension to the petitioner with effect from 28.10.1994 thedate following the date of death of petitioner's husband.For Petitioner: Mr.AR.L.Sundaresan, Senior counsel for Mr.M.A.R.Pragash.For Respondent : Mr.L.S.M.Hasan Fizal, Government Advocate.- - - - -O R D E RThis Writ petition is filed praying to issue a writ ofcertiorarified mandamus, calling for the records, relating to theG.O.Ms.No.110, Transport Department, dated 06.06.2002 and to quashthe conditions in para-10 as arbitrary and illegal and to direct therespondent to pay family pension to the petitioner with effect from28.10.1994 the date following the date of death of petitioner'shusband V.P.Kannan.2. The brief facts for disposal of this case are as follows:- https://hcservices.ecourts.gov.in/hcservices/ Prior to 1972, the Public Transport Service was run by the StateTransport Department. In the year 1975, the Government constituteddifferent Transport Corporations and the employees working in theTransport Department were asked to exercise their option to workeither with the Transport Department or to get absorbed in the newlycreated Transport Corporations. The employees were assured of theservice benefits, which includes the terminal benefits, pension andgratuity etc., as they were enjoying in the Government service.After the formation of the Transport Corporations in the year 1975,G.O.Ms.No.1028, Transport Department, dated 23.09.1985 was issuedordering permanent absorption of the Government servant, determiningthe manner in which the terminal benefits are to be settled takinginto consideration the earlier G.O.Ms.No.378, Finance (FR.II)Department, dated 18.04.1975. 3. In the G.O.Ms.No.1028, Transport Department, dated23.09.1985, it is stated that the employees of the GovernmentDepartment, who have been permanently absorbed to the variousTransport Corporations, are entitled to pension and gratuity takinginto consideration the service rendered by them in the Government.However, in paragraph No.6 of the G.O.Ms.No.1028 which deals withfamily pension, it is stated as follows:-"6.FAMILY PENSIONi) Since the optee for permanent absorptionin State Transport Undertakings will cease to bea Government servant and the Governmentliability for Family Pension will cease. The erstwhile Tamil Nadu State TransportDepartment employees absorbed permanently in theState Transport Undertakings should be allowedpension increase also in their pension besidesDearness Allowance, Additional DearnessAllowance as applicable from time to time toGovernment pensioners who retired on that dateas per the orders issued in the third letterread above."4. A similar G.O. was passed in G.O.Ms.No.1921, dated08.11.1983 with regard to employees of the Tamil Nadu DairyDevelopment Corporation and was challenged before the StateAdministrative Tribunal. In that G.O. also, the family pension wasdenied. The Tribunal set aside the Government Order and directedthe Government to re-look into the matter afresh. The said decisionof the Administrative Tribunal was taken up by way of an appealbefore the Hon'ble Supreme Court in the case of State of Tamil Naduand others - Vs. - V.S.Balakrishnan and others reported in 1994Supplementary(3) SCC 204 where it has been held as follows:- https://hcservices.ecourts.gov.in/hcservices/ "We may now examine the terminal benefitsoffered in G.O.1921. We have already enumeratedin detail the said benefits in earlier part ofthe Judgment. We are of the view that exceptthe provisions regarding family pension andapplication of Future Liberalized Pension Rules[item 3(c) and 3(f) of G.O.1921] all otherprovisions of the said G.O. are reasonable andno fault can be found therewith. We are of theview that once an optee for permanent absorptionin the Federation is entitled to pro ratapension in respect of the period of servicerendered by him under the Government, he is alsoentitled to the benefit of the family pension(vide para 14 of the judgment)."5. Following the ratio of the Hon'ble Apex Court's decision,the Tamil Nadu State Transport Corporation Retired EmployeesAssociation filed a petition in W.P.No.21204 of 1992 and a learnedSingle Judge of this Court on 07.03.2001 issued a mandamus directingthe Government to grant family pension under the existing PensionRules to the families of the members of the petitioner Associationholding that they are Government employees and have been permanentlyabsorbed in the various Transport Corporations. It furtherdirected that the services rendered by them with the Governmentshould also be considered for service benefits. Following the saiddecision, G.O.Ms.No.110, Transport Department, dated 06.06.2002 hasbeen issued. Paragraph Nos.5, 6, 8, 9, 10 and 11 of theG.O.Ms.No.110, Transport Department, reads as follows:-"5. The Government after carefulconsideration have decided to implement theorders of High Court, Madras, dated 07.03.2001in W.P.No.21204 of 1992. The Governmentaccordingly direct that the Family pension underthe existing pension Rules be granted to thefamilies of the eligible members of the TamilNadu State Transport and Transport CorporationsRetired Employees Association who wereGovernment employees and who had beenpermanently absorbed in the various TransportCorporations in respect of the services renderedby them under the Government. The list ofmembers of the petitioners Association is shownin the annexure to this order.""6. The Government also direct that theeligible family pensioners are entitled to https://hcservices.ecourts.gov.in/hcservices/ Family Pension and D.A. as applicable from timeto time to Government pensioners as per theexisting pension rules.""8. The Family Pension proposals in theprescribed format under the Tamil Nadu PensionRules in respect of eligible members shall befinalised by the Managing Directors of therespective Transport Corporations immediatelyand forwarded to the Under Secretary toGovernment, Transport Department, Secretariat,Chennai-9 for sanction and transmission to theAccountant General for admittance and issue ofauthorisation for payment.""9. The Accountant General is requested toadmit the Family Pension proposals received fromthe Under Secretary to Government, TransportDepartment and the family pension amount may bearranged to be authorised for payment to theindividuals concerned through Treasuriesconcerned.""10. This order shall take effect from07.03.2001, the date of the Judgement of theHigh Court, Madras (OR) the date of the death ofthe eligible pensioner whichever is later." (emphasis supplied)"11. This order issues with the concurrenceof Finance Department vide its U.O.No.38/JD(H)/2002 dated 04.06.2002."6. Consequent to this G.O.Ms.No.110 dated 6.6.2002, the presentwrit petition has been filed by the widow of the deceased employeestating that the pensioner/breadwinner died prior to 07.03.2001,leaving the petitioner as his legal heir and she is entitled tofamily pension consequent to the death of the pensioner according tothe Tamil Nadu Pension Rules, 1978. In the Tamil Nadu PensionRules, 1978, in Chapter IX Rule 76, it reads as follows:-"76. Sanction of family pension andresiduary gratuity on the death of a pensioner.-(1) Where the Head of Office has received anintimation regarding the death of a retiredGovernment servant who was in receipt ofpension, he shall ascertain whether any familypension or residuary gratuity or both is or arepayable in respect of the deceased pensioner: https://hcservices.ecourts.gov.in/hcservices/ Provided that the Head of Office may, whenhe considers it necessary so to do consult theAudit Officer.(2)(a)(i) If the deceased pensioner issurvived by a widow or widower who is eligiblefor the grant of 1[....] family pension underRule 49, the amount of 1[....] family pension asindicated in the Pension Payment Order shallbecome payable to the widow or widower, as thecase may be, from the day following the date ofdeath of the pensioner. .......... " (emphasis supplied)7. It is the case of the petitioner that while the order of thelearned single Judge directed the Government to grant family pensionunder the existing pension Rules, on the death of the pensioner, theGovernment has arbitrarily fixed a cut-off date as 07.03.2001. Thefurther case of the petitioner is that she is entitled to familypension immediately on the death of the pensioner, which date isprior to 07.03.2001. The reason according to the Government is thatthe order of the learned Single Judge is dated 07.03.2001. Noreason has been given in the Government Order as to why theeffective date is taken as 07.03.2001 or the date of the death ofthe pensioner whichever is later. It is not a new pension schemeto fix a particular date. The petitioner's claim for family pensionstarts immediately on the death of the pensioner and that right isas per the Tamil Nadu Pension Rules and affirmed by this Court andthe Hon'ble Apex Court in the decision cited above. On thispremise, this writ petition is canvassed. 8. The learned Government Advocate stated that the Governmenthas implemented the order of the learned Single Judge and therefore,clause-10 has been introduced as above and the effective date is7.3.2001. He relied upon a decision of this Court in W.P.No.35643of 2007 dated 12.01.2009 and stated that the Government Order withregard to all conditions have been upheld by this court. Further,the Government is entitled to fix the date from the date of thedecision granting the benefit of family pension. It cannot be saidto be arbitrary or unreasonable. 9. The petitioner is the widow of the deceased pensioner. Itis not in dispute that the deceased employee was receiving pensionas a Government employee and employee of the Transport Corporation.Pursuant to the order of the learned Single Judge in W.P.No.21204 of1992 dated 07.03.2001, the Government accepted the plea for grant offamily pension under the Tamil Nadu Pension Rules, 1978. Under Rule76, which has been extracted above, on the death of the pensioner, https://hcservices.ecourts.gov.in/hcservices/ the family pension is payable to the widow or the widower or theeligible legal heirs as provided under the above said Rule and thatfact cannot be and is not disputed by the respondent. 10. The only point in issue is whether the effective date forthe purpose of granting the family pension will be 07.03.2001 or thedate of the death of the eligible pensioner whichever is later?. 11. The pensioner in this case died prior to 07.03.2001 andtherefore, the petitioner is entitled to get family pension in termsof Rule 76 of the Tamil Nadu Pension Rules and in accordance withthe G.O.Ms.No.110, Transport Department, dated 06.06.2002. However,in the Government Order, no reason has been given as to whyeffective date has been taken as 07.03.2001. Under Rule 76 of theTamil Nadu Pension Rules, 1978, the family pension comes intooperation on the death of the pensioner. That being the position,when the Rule itself provides for family pension on the death ofthe retired employee, the Government cannot fix another cut-off dateviz., 07.03.2001. The decision of the learned Single Judge renderedon 07.03.2001 gives the family members viz., widow or widower, asis the case, an entitlement to get family pension under The TamilNadu Pension Rules, 1978. The date of the decision cannot be takenas cut-off date as the petitioner will lose her valuable claim forfamily pension till the cut-off date (i.e.) 7.3.2001 even though thepensioner died earlier. This will be contrary to Rule 76 of theTamil Nadu Pension Rules, 1978. No reason is stated as to why thedate is fixed as 7.3.2001. It is contrary to the Tamil NaduPension Rules, 1978. As per the ruling of the courts citedearlier, if pension is an entitlement based on the service, familypension also accrues and cannot be denied. In this case, familypension is granted, but the date is fixed based on the decision ofcourt. This cannot be accepted because the decision of the courtin this case confers the right to family pension. The familypension is governed by Rules and the Government cannot fix anotherdate contrary to the Rules. Hence, para 10 of the Government OrderNo.110, Transport Department, dated 6.6.2002, is held to be contraryto 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 theeffective date as 07.03.2001 is set aside. The petitioner in thiscase will be entitled to family pension under the Tamil Nadu PensionRules, 1978, from the date following the date of death of thepensioner/employee, viz., 28.10.1994 and not from the date asspecified in para 10 of the G.O.Ms.No.110 Transport Department dated6.6.2002. If any application is required, petitioner shall submitthe same within four weeks from the date of receipt of a copy ofthis order. Thereafter, the respondent shall pass appropriate orders https://hcservices.ecourts.gov.in/hcservices/ in terms of the order of this court for family pension within aperiod of four weeks from the date of such application. This writpetition is allowed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarjrl/tsToThe Secretary to Government,Transport Department,Secretariat, Chennai – 9.+1cc to Govt. Pleader SR 25779+1cc to Mr.M.A.R.Pragash,Advocate Sr 26198PKB(CO)km/30.7.W.P.No.482 of 2008