A.Dhanapakiyam (Died)A.Dhakshinamoorthysubstituted as L.R of the deceased v. The Secretary to Government Tamil Nadu Legislative Assembly T.A.II Section

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:06-01-2009CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIW.P.No.17573 of 2008A.Dhanapakiyam (Died)A.Dhakshinamoorthysubstituted as L.R of the deceasedPetitioner as per (order dated 22.10.2008in M.P.No.1 of 2008 inW.P.No.17573 of 2008)... Petitionervs.1. The Secretary to Government Tamil Nadu Legislative Assembly T.A.II Section, Secretariat Fort St.George Chennai 600 009.2. The District Collector Arialur District Arialur 621 212.... RespondentsWrit petition filed under Article 226 of the Constitution ofIndia praying for issuance of a Writ of Certiorarified Mandamusafter calling for the concerned records relating to the order No.176 dated 09.05.2008 passed by the 1st respondent and quash the sameand direct the 1st respondent to grant arrears from 1977.For petitioner: Mr. M.Gnanasekar For respondents: Ms.Lita Srinivasan, Government Advocate ORDERThe writ petition was originally filed by Dhanapakiyam, wife oflate A.Ayyaru, who was a Member of the Legislative Assembly during1952-1957 from Jayamkonda Chozhapuram constituency in ArialurDistrict. In respect of his death which took place on 6.2.1964, theoriginal writ petitioner has filed the writ petition challenging theorder of the first respondent dated 9.5.2008, under which theoriginal writ petitioner has been given monthly pension from1.4.2007 at the rate of Rs.3,000/-. It is not in dispute that thesaid monthly pension from 1.4.2007 has been paid to her. https://hcservices.ecourts.gov.in/hcservices/ Subsequently, it is stated that on 17.9.2008, the original writpetitioner passed away and A.Dhakshinamoorthy son of late A.Ayyaru,Ex.M.L.A. has been substituted as the petitioner. 2. It is seen that the original writ petitioner has representedto the first respondent on 12.12.2007 to pay her family pension asper the Pension Scheme for Members of Legislative Assembly. Shehas also enclosed necessary certificates including legal heirshipcertificate and death certificate of the deceased Member ofLegislative Assembly, No Objection Certificate from her son,A.Dhakshinamoorthy, who is the present petitioner. The grievance ofthe present petitioner is that his mother was entitled for familypension from the date when the Pension Rules for Members of TamilNadu Legislative Assembly came into existence in 1977 and therefore,the granting of pension from 1.4.2007 is not proper. It is also thecontention of the learned counsel for the petitioner that fixing ofcut-off date as 1.4.2007 has no reasonable nexus to the objectsought to be achieved.3. In the counter affidavit filed by the first respondent,while the fact of the death of original petitioner's husband is notin dispute, it is stated that the first respondent has sanctionedfamily pension to the original petitioner at the rate ofRs.3,000/- per month with effect from 1.4.2007. According to thefirst respondent, the concept of pension for former M.L.As. andM.L.Cs. was introduced from 9.12.1975 under section 12B of the TamilNadu Payment of Salaries Act, 1951 and the Tamil Nadu Legislators'Pension Rules, 1977 were framed. Based on the announcement made bythe Hon'ble Chief Minister on the Floor of the House on 14.5.1999that families of Ex. legislators would be sanctioned 50% of pensionamount as family pension, the Tamil Nadu Payment of Salaries Act,1951 was amended by Act 41 of 1999 which came into effect from1.4.1999. Consequently, Tamil Nadu Legislators Pension Rules, 1977was also amended by introducing Rule 9A. As per the said Rule,family pension is granted to former members who expired on or after1.4.1999. Thereafter, on representation for extending the familypension in respect of legislators who died before 1.4.1999, based onthe announcement made by the Hon'ble Finance Minister on the Floorof the House on 9.5.2007 stating that in respect of any personentitled to pension died on or after 1.4.1999, family of suchmember shall be entitled to receive family pension of Rs.3,000/- permonth. Accordingly, the Tamil Nadu Payment of Salaries Act, 1951was amended by Amendment Act, 31/07 and that was given effect from1.4.2007. It is also denied that the original petitioner wasentitled for arrears of family pension from 1977. It is also statedthat family pension has not been given to family members of anyperson prior to 1.4.1999 and the same has been prospective from1.4.1999. According to the first respondent in the counteraffidavit, the original petitioner being the wife of the Legislatorwho died prior to 1.4.1999, she is eligible for family pension onlywith effect from 1.4.2007. It is also stated that it is the policyof the Government which cannot be questioned.4. Tamil Nadu Payment of Salaries Act, 1951 (Tamil Nadu Act20/51) was enacted to provide salaries and allowances to Ministers, https://hcservices.ecourts.gov.in/hcservices/ Speaker and Deputy Speaker, Parliamentary Secretaries, Leader of theOpposition, Chief Government Whip and Members of the LegislativeAssembly. Section 12B of the Act provides for pension to everyperson who had been or is a Member of the Legislative Assembly orof the Legislative Council or of both for one term after 15th August,1947 at the rate of Rs.7000/-. That was with effect from 1.4.2007as per the Tamil Nadu Payment of Salaries (Amendment) Act, 2007(Tamil Nadu Act 31/07). Originally when the pension was granted tothe Members of Legislative Assembly, admittedly there was no familypension scheme in existence. It is relevant to point out thatsection 12B(2A) makes it very clear that such persons who aregetting pension will be entitled for any increase as made by theAmendment Act and that increased pension will be effective only fromthe date of publication of such Amendment Act and they are notentitled for arrears of such increase. 5. The concept of family pension in respect of legislators wasintroduced for the first time under the Tamil Nadu Payment ofSalaries (Amendment) Act, 1999 (Tamil Nadu Act 41/99). That waswith effect from 1.4.1999. According to it, if any person viz., alegislator who was entitled for pension under section 12B dies, thefamily of such person shall be made entitled to receive pension at50% of such pension subject to various conditions prescribedtherefor. That was incorporated as section 12B(2B) with effect from1.4.1999. Under the said provision, the term, 'family' has beendefined to mean (i)wife in the case of a male person or husband in the case of afemale person;(ii)son who has not attained the age of twenty one years andunmarried daughter who has not attained the age of twenty fouryears including such son and daughter adopted legally; and(iii)father and mother in the case of unmarried person.By applying the meaning of the term 'family' for the purpose ofenablement of family pension on the death of Ex.M.L.A., Mr.Ayyaru,it was only the original writ petitioner being wife who alone wasentitled for family pension since the present petitioner being theson, who has crossed the age prescribed, is admittedly not entitledto family pension. 6. Section 12B(2B)(i) under which the family of deceased ex-legislator would be getting family pension at the rate of 50% witheffect from 1.4.1999 was amended by the Tamil Nadu Payment ofSalaries (Amendment) Act, 2007 (Tamil Nadu Act 31/07) which cameinto effect from 1.4.2007 to the effect that if any person entitledto pension under the Act viz., Ex.legislator died before 1.4.1999,the family member would be entitled to receive family pension ofRs.3,000/- per month. That was introduced as section 12B(2B)(i)which came into effect from 1.4.2007. Even by that time when theamendment was introduced, the meaning of the term 'family' remainedas the same as stated earlier. Therefore, it was by virtue of TamilNadu Payment of Salaries (Amendment) Act, 2007 (Tamil Nadu Act31/07) which was given effect from 1.4.2007, the husband of theoriginal petitioner having died prior to 1.4.1999, the originalpetitioner was granted family pension at the rate of Rs.3,000/- permonth from 1.4.2007. After the above said Amendments were effected, https://hcservices.ecourts.gov.in/hcservices/ section 12B of the Tamil Nadu Payment of Salaries Act, 1951 standsas on date as follows:"12-B Pension.— (1) There shall be paid a pension of seventhousand rupees per mensem to every person who after the 15thday of August 1947, had been or is a Member of theLegislative Assembly or of the Legislative Council or ofboth, for one term.-Explanation.— For the purpose of this sub-section,(a) a Member of the Legislative Assembly shall include aMember of the Legislative Assembly of the former State ofTravancore – Cochin, representing any territory which afterthe 1st day of November 1956 forms part of the State of TamilNadu;(b) a Member of the Legislative Assembly or of theLegislative Council shall include a Member of the LegislativeAssembly or of the Legislative Council of the State of AndhraPradesh, representing any territory which after the 1st dayof April 1960 forms part of the State of Tamil Nadu;Proviso - OmittedProvided further that where any person has served either as aMember of the Legislative Assembly or as a Member of theLegislative Council or of both for a period less than oneyear, there shall be paid to him a pension of four thousandrupees per mensem:Provided also that no pension under this sub-section shall bepaid to any person,—(a) who is in receipt of pension from any other State forhaving been a Member of the Legislative Assembly or of theLegislative Council of such State;(b) who was a Member of the Legislative Assembly or of theLegislative Council of the former State of Madrasrepresenting any territory which ceased to form part of theState of Tamil Nadu.(c) who ceases to be a citizen of India or who hasvoluntarily acquired the citizenship of a foreign State, oris under any acknowledgement of allegiance or adherence to aforeign State.(1-A) Where any person entitled to pension under sub-section(1) is also entitled to pension for having been a Member ofParliament, such person shall be entitled to receive thepension under sub-section (1) in addition to such pension towhich he is entitled for having been a Member of Parliament.(2) (i) If any person who has been paid any pension underthis Act as in force before the date of publication of theTamil Nadu Payment of Salaries (Amendment) Act,1980 in theTamil Nadu Government Gazette, becomes entitled to increase https://hcservices.ecourts.gov.in/hcservices/ in the amount of pension so paid by virtue of the saidAmendment Act, the increase shall be given effect only on andfrom the date of such publication and he shall not beentitled to any arrears of such increase.(ii) If any person becomes entitled to pension for the firstterm by virtue of this section, he shall be paid such pensiononly with effect on and from the date of publication of theTamil Nadu Payment of Salaries (Amendment) Act, 1980 in theTamil Nadu Government Gazette and he shall not be entitled toany arrears of such pension.(2-A) If any person becomes entitled to pension for the firsttime or to any increase in pension by virtue of this section,as amended by the Tamil Nadu Payment of Salaries (Amendment)Act, 1982 he shall be paid such pension or such increase inpension, as the case may be, only with effect on and from thedate of publication of the said Act in the Tamil NaduGovernment Gazette and he shall not be entitled to anyarrears of such pension.(2-B)(i) where any person entitled to pension under thissection dies, the family of such person shall be entitled toreceive fifty percent of such pension subject to suchconditions as may be prescribed.(ii) If there is any increase in pension by virtue ofthis Section, the family refer to in clause (i) shall also beentitled to receive 50% of such increase in pension witheffect from the date from which such increase in pensionunder this section is given effect to.Explanation.— For the purposes of this sub-section, in thecase of person who is entitled to pension under this sub-section ‘family’ means- (i) wife in the case of a male person or husband in the caseof a female person;(ii) son who has not attained the age of twenty one years andunmarried daughter who has not attained the age of twentyfour years including such son and daughter adopted legally;(iii) father and mother in the case of unmarried person;(2-BB) Where any person entitled to pension under sub-section(1) died before the 1st day of April 1999, the family of suchmember shall be entitled to receive a family pension ofrupees three thousand per mensem.Explanation: For the purpose of this sub-section, the word'family' shall have the same meaning assigned to it in sub-section (2-B).(2-C) Where, on or after the 15th day of November 1996, anyMember of the Legislative Assembly dies before the expiry ofthe term of his office, the family of such member shall beentitled to receive a family pension of rupees two thousandand five hundred per mensem. https://hcservices.ecourts.gov.in/hcservices/ (2-CC) (i) Where, before the 15th day of November, 1996 anyMember of the Legislative Assembly died before the expiry ofterm of his office, the family of such member shall beentitled to receive a family pension of rupees three thousandfive hundred per mensem.Explanation.— For the purposes of this sub-section, the word‘family’ shall have the same meaning assigned to it in sub-section (2-B).(3) The State Government may make rules providing for theconditions and restrictions subject to which such pension maybe granted: Provided that no such pension shall be paid to any person forthe period during which such person was or is in receipt ofany salary or any emoluments other than Travelling allowanceeither from any State or the Central Government or from anyCompany or statutory body owned or controlled by any State orthe Central Government and if any such income was or isreceived the payment of pension shall be suspended for thatperiod:Provided further that—(a) no such pension shall be paid to any person for theperiod during which such person was or is in receipt ofpension for having been a Member of any other StateLegislature, or honorarium either from any State or theCentral Government or from any company or statutory bodyowned or controlled by any State or the Central Governmentand if the amount of such pension, or honorarium is equal to,or in excess of, the pension to which he is entitled undersub-section(1);(b) where the amount of such pension or honorarium is lessthan the pension to which he is entitled under sub-section(1), such person shall be entitled to receive only thedifference as pension under that sub-section.Explanation I.— For purposes of sub-section (1) theexpression “one term” shall mean a period of not less thanone year of membership in the Legislative Assembly or in theLegislative Council or in both, whether continuous or not.Explanation II.— Omitted.Explanation III.— For purpose of this section, salaryincludes salary received under this Act and salary receivedas—(i) a Member of the Parliament or any other StateLegislature.(ii) a Minister or Deputy Minister of the Government of Indiaor any other State.(iii) The Chairman or Deputy Chairman of the Council of State https://hcservices.ecourts.gov.in/hcservices/ of the Legislative Council of any other State.(iv) The Speaker or Deputy Speaker of the House of the Peopleor of the Legislative Assembly of any other State."7. The contention of the learned counsel for the petitioner isthat by virtue of the amendment by the Tamil Nadu Amendment Act 41of 1999, which came into effect from 1.4.1999, the original writpetitioner's husband having died at the time when the amendment cameinto effect viz., 1.4.1999, she being the wife would be entitled topension from the said date. According to him, the amendmenteffected under Tamil Nadu Act, 31/07 by introducing a new clauseviz., (2BB) under section 12B was only an extension of the pensionalready granted under section (2B)(i) which came into effect from1.4.1999. In other words, his contention is that in respect ofthe family of a Legislator who died by the time when the Tamil NaduAct 41/99 came into existence on 1.4.1999, the quantum of pensionwas 50% which has been modified under Tamil Nadu Act 31/07 asRs.3,000/- per month. 8. There is certainly force in the said argument of the learnedcounsel for the petitioner. It is not as if the Tamil Nadu Act31/07 has superseded section 12(B)(2B)(i) which came into force from1.4.1999 and the Amendment Act 31/07 which came into force from1.4.2007 modifying the quantum of pension to the family is only anaddition to section 12(B)(2B)(i) and it is not in derogation. Insuch view of the matter, the contention raised on behalf of therespondents that by applying sub-section (2) to section 12B, theoriginal petitioner would not have been entitled for arrears has nomeaning. The said section applies only in cases where there is achange in quantum of family pension effected by a subsequentamendment, the changed amount would be payable only from the date ofamendment and such benefit would not be extended from the originaldate on which the family member was entitled to family pension.But, in the present case, the original writ petitioner was entitledfor family pension at the rate of 50% of pension from 1.4.1999 andwhat was effected by way of Tamil Nadu Act 31/07 with effect from1.4.2007 was only a change in the quantum viz., Rs.3,000/- permonth. Therefore, there is no difficulty to conclude that merelybecause the first respondent has paid to the original writpetitioner the family pension at the rate of Rs.3,000/- from1.4.2007, she would not be entitled for the benefit of sub-section(2B)(i) of section 12B of the Tamil Nadu Payment of Salaries Act,1951, viz., 50% of pension with effect from 1.4.1999. In myconsidered view, in respect of the original writ petitioner, theright to receive family pension has accrued from 1.4.1999 andcertainly from that date, she would be entitled for pension at 50%of pension amount upto 31.3.2007 and thereafter from 1.4.2007 at therate of Rs.3,000/- per month which has been admittedly paid in thiscase.9. The term 'family pensioner' has been defined under the TamilNadu Legislators' Pension Rules, 1977 in clause (cc) to mean aperson who is eligible to receive family pension under sub-section(2B) of section 12B of the Act. Under the Tamil Nadu Legislators'Pension Rules, 1977, Rule 9B reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "9B. Sanction of family pension – On receipt of theapplication for grant, revival or revision of family pensionand on being satisfied about the eligibility of the applicantfor the family pension, the Secretary shall issue an order inForm X or Form XI, for sanctioning, reviving or revising thepension as the case may be, and communicate the order to theperson concerned and to the Accountant General, Chennai forpurpose of audit."10. Merely because the original writ petitioner has appliedfor family pension in December, 2007 it does not mean that hereligibility for pension from 1.4.1999 is not available to her. Inany event, Rule 9B which enables the applicant to make applicationfor grant of pension cannot supersede the Tamil Nadu Payment ofSalaries Act, 1951, especially section 12B(2B)(i) which is astatutory enactment conferring a right on the original writpetitioner to receive pension from 1.4.1999. Therefore, theoriginal writ petitioner would be certainly entitled to familypension from 1.4.1999 at the rate of 50% which stood modified from1.4.2007 into Rs.3,000/- per month. Merely because the presentpetitioner being the son of the deceased legislator is not eligibleto be treated as 'family' as per the provisions of the Act, it doesnot mean that as a legal heir of the original writ petitioner he isnot entitled to inherit the accrued amount due to his mother. Theright of family pension cannot be treated to be a right of equityby the respondents at any rate, since it is an express statutoryprovision which has provided the right of getting family pension.11. In a similar situation, while deciding about freedomfighters' pension under the Madras Freedom Fighters Pension Rules,1966, a Division Bench of this Court in Thangavelu,R. v. Governmentof India & another [(1994) Writ L.R. 137] held as follows:"Having regard to the above laudable object and purposebehind the scheme it is but necessary that the appropriateGovernment should adopt a liberal approach in the matter ofgrant of pension to the real freedom fighters. When we saythis, it does not mean that when a person makes a claim underthe Scheme for pension, he should be granted the same as amatter of course. No doubt, the applicant should satisfy theconditions stipulated in the Scheme."12. On the factual matrix as I have discussed earlier, viz.,the amendment modifying the quantum of pension amount with effectfrom 1.4.2007 at the rate of Rs.3,000/- per month was made incontinuation of the Tamil Nadu Act 41/99, the judgement of theHon'ble Apex Court in State of Punjab and Ors. v. Amar Nath Goyaland Ors. [2005(6) Supreme 469] holding that the decision of theGovernment to limit the benefits only to employees who retired on orafter a particular date is not irrational, is not applicable to thefacts herein. In the present case, the eligibility has been givenfrom 1.4.1999 and the quantum has been modified with effect from1.4.2007. Law is well settled that any executive instructionscannot supersede or deprive of any right vested or accrued under thelaw. That was laid down by the Hon'ble Supreme Court in https://hcservices.ecourts.gov.in/hcservices/ U.Raghavendra Acharya v. State of Karnataka (AIR 2006 SC 2145) asfollows:"Pension, as is well known, is not a bounty. It istreated to be a deferred salary. It is akin to right ofproperty. It is co-related and has a nexus with the salarypayable to the employees as on the date of retirement.26. These appeals involve the question of revision ofpay and consequent revision in pension and not the grant ofpension for the first time. Only the modality of computingthe quantum of pension was required to be determined in termsof the notification issued by the State of Karnataka. Forthe said purpose, Rule 296 of the Rules was made applicable.Once this rule became applicable, indisputably thecomputation of pensionary benefits was required to be carriedout in terms thereof. The Pension Rules envisage thatpension should be calculated only on the basis of theemoluments last drawn. No order, therefore, could be issuedwhich would be contrary to or inconsistent therewith. Suchemoluments were to be reckoned only in terms of the statutoryrules. If the State had taken a conscious decision to extendthe benefit of the UGC pay scales w.e.f. 1.1.1996, to theappellants allowing them to draw their pay and allowances interms thereof, we fail to see any reason as to why thepensionary benefits would not be extended to them from thesaid date."13. In view of the above said discussions, the impugned orderof the first respondent stands modified with direction to the firstrespondent to grant family pension to the original writ petitionerwith effect from 1.4.1999 as per section 12B(2B)(i) of the TamilNadu Payment of Salaries Act to be followed by sub-section (2BB)with effect from 1.4.2007 and pass appropriate orders regardingarrears payable to the original petitioner from 1.4.1999 till31.3.2007 and such orders shall be passed expeditiously. The writpetition stands ordered accordingly by modifying the impugned order.No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.khTo1. The Secretary to Government Tamil Nadu Legislative Assembly T.A.II Section, Secretariat Fort St.George, Chennai 600 009. https://hcservices.ecourts.gov.in/hcservices/

2. The District Collector Arialur District Arialur 621 212.1 cc to Mr.M. Gnanasekar, Advocate, SR. 530W.P.No.17573 of 2008VS (CO)kk 19/1