Chellammal v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 04.11.2009CORAMTHE HONOURABLE Mr.JUSTICE R.SUDHAKARW.P.NO.3396 of 20061.Chellammal2.Thirupura Sundari.. Petitioners Versus1.The State of Tamil Nadu rep. by the Secretary to Government Transport Department, Fort St.George, Chennai 600 0092.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,RangapuramVellore 632 009... Respondents Writ petition filed under Article 226 of the Constitution ofIndia praying for a writ of certiorarified mandamus calling for theconnected and relevant records relating to the orders passed by thethird respondent in Lr.No.12223/r[ep 12/j.m.ngh.f (tp) ypl;.nt. k/04 dated 6.1.2005and quash the same and direct the first respondent to extend thebenefit of Family Pension granted in G.O.Ms.No.189 TransportDepartment dated 13.8.2004 to the petitioners.For Petitioner ... Mr.D.SadhasivanFor R1 and R2... Mrs.C.K.Vishnupriya, Addl. Govt. Pleader.For R3...No appearance https://hcservices.ecourts.gov.in/hcservices/ ORDERThis petition is filed calling for the connected and relevantrecords relating to the orders passed by the third respondent inLr.No.12223/r[ep 12/j.m.ngh.f (tp) ypl;.nt. k04 dated 6.1.2005 and quash thesame and direct the first respondent to extend the benefit of FamilyPension granted in G.O.Ms.No.189 Transport Department dated 13.8.2004to the petitioners.2.The two petitioners herein are the spouses of the lateemployees of the respondent State Transport Corporation. With effectfrom 01.05.1975, consequent to the formation of the various TransportCorporations, the Government employees working in TransportDepartment were absorbed into the Corporation of the Governmentgranting certain benefits as per G.O.Ms.No.1028 (transport) dated23.08.1985. The retired employees and the family members weregranted pension, gratuity, provident fund, earned leave, etc. 3.The Transport Corporation Retired Employees Association filedW.P.No.21204 of 1992 for grant of family pension under the PensionRules and by an order dated 07.03.2001, this Court in the above saidwrit petition granted the benefit of family pension under theexisting Pension Rules to the families of eligible members of theTamil Nadu State Transport Retired Employees Association. As such,order was implemented in G.O.Ms.No.110 dated 06.06.2002 andparagraph 6 of the said G.O. reads as follows -6.The Government also direct that the eligiblefamily pensioners are entitled to Family Pension andD.A. as applicable from time to time to Governmentpensioners as per the existing Pension rules.4.In the said Government Order, in paragraph 10, it was statedthat the order will take effect from 07.03.2001, i.e. the date of thejudgment of this Court in W.P.No.21204 of 1992 or from the date ofdeath of the eligible pensioner, whichever is later. This paragraph10 came to be challenged by way of individual writ petitions and thatportion of the Government Order which fixed the date as 07.03.2001 asthe eligible date was struck down by this Court in W.P.No.482 of 2008dated 23.06.2009. It was clearly held in the earlier decision thatthe family pension will be on the death of the eligible pensioner. 5.In the present case, the two petitioners claim family pensionon the death of the eligible pensioners who were retired employes ofthe Transport Corporation. The respondents rejected the claimstating that a lumpsum amount has been made in lieu of monthlypension and therefore they are not entitled to family pension.Contending that similarly placed persons have been granted benefit https://hcservices.ecourts.gov.in/hcservices/ and that the respondents are acting arbitrarily denying the benefitsthe present writ petition has been filed to quash the impugnedproceedings. 6.When the matter is heard by this Court today, the petitionershave a benefit of G.O.Ms.No.581 dated 18.09.2006 whereby thepetitioners in this case who have already drawn lumpsum amount inlieu of monthly pension have been granted the benefit of monthlypension on the death of the eligible pensioner. Clause 4(d) ofG.O.No.581 dt.18.09.2006 read as follows -(d)Family pension will, however, be admissible tothe families of those Government servants absorbed in theState Public Sector Undertakings/Boards/CooperativeInstitutions/ Central Public SectorUndertakings/Autonomous Bodies etc. who drew the lump sumamount in lieu of monthly pension on their absorption onthe date of its becoming due and thus do not draw anymonthly pension on the date of death.7.In effect, what has been denied by the impugned proceedingshas been granted to the petitioner in terms of G.O.Ms.No.581dt.18.09.2006. However, there is one difficulty in the said G.O.which may affect the petitioners pecuniarly which is Paragraph 5 andit reads as follows -5.This order takes effect from the date of issue ofthis Order or from the date following the date of deathafter retirement whichever is later in respect of thoseabsorbed on or after 1.4.64.8.In this case, as can be seen from the Paragraph 5 of theGovernment Order, the Government Order comes into effect from18.09.2006 as that is the later date. In effect the family pension isdenied to the petitioners from the date of death of the eligiblepensioner till 17.09.2006. 9.As has been pointed out above, with regard to G.O.No.110 dated06.06.2002, the effective date for applicability of the familypension is the date of death of the eligible pensioner and notanother 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 thiscase also, the Government will have to consider the eligibility forfamily pension from the date of death of the eligible pensioner andnot from the date of the G.O., namely 18.09.2006. 10.Though no specific prayer is made in the writ petition, theGovernment is directed to consider the effective date of G.O. in thelight of the earlier decision of this Court in W.P.No.482 of 2008dated 23.06.2009 which reads as follows - https://hcservices.ecourts.gov.in/hcservices/

10.The only point in issue is whether the effectivedate for the purpose of granting the family pension willbe 07.03.2001 or the date of the death of the eligiblepensioner whichever is later?11.The pensioner in this case died prior to07.03.2001 and therefore, the petitioner is entitled toget family pension in terms of Rule 76 of the Tamil NaduPension Rules and in accordance with the G.O.Ms.No.110,Transport Department, dated 06.06.2002. However, in theGovernment Order, no reason has been given as to whyeffective date has been taken as 07.03.2001. Under Rule76 of the Tamil Nadu Pension Rules, 1978, the familypension comes into operation on the death of thepensioner. That being the position, when the Rule itselfprovides for family pension on the death of the retiredemployee, the Government cannot fix another cut-off dateviz., 07.03.2001. The decision of the learned SingleJudge rendered on 07.03.2001 gives the family membersviz., widow or widower, as is the case, an entitlement toget 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 claimfor family pension till the cut-off date (i.e.) 7.3.2001even though the pensioner died earlier. This will becontrary to Rule 76 of the Tamil Nadu Pension Rules,1978. No reason is stated as to why the date is fixed as7.3.2001. It is contrary to the Tamil Nadu Pension Rules,1978. As per the ruling of the courts cited earlier, ifpension is an entitlement based on the service, familypension also accrues and cannot be denied. In this case,family pension is granted, but the date is fixed based onthe decision of court. This cannot be accepted becausethe decision of the court in this case confers the rightto family pension. The family pension is governed byRules and the Government cannot fix another date contraryto the Rules. Hence, para 10 of the Government OrderNo.110, Transport Department, dated 6.6.2002, is held tobe contrary to the provisions of Tamil Nadu PensionRules, 1978, in particular, Rule 76.12.In such view of the matter, clause-10 of theG.O.Ms.No.110, Transport Department, dated 06.06.2002 inso far as it fixes the effective date as 07.03.2001 isset aside. The petitioner in this case will be entitledto family pension under the Tamil Nadu Pension Rules,1978, from the date following the date of death of thepensioner/employee, viz., 28.10.1994 and not from thedate as specified in para 10 of the G.O.Ms.No.110 https://hcservices.ecourts.gov.in/hcservices/ Transport Department dated 6.6.2002. If any applicationis required, petitioner shall submit the same within fourweeks from the date of receipt of a copy of this order.Thereafter, the respondent shall pass appropriate ordersin terms of the order of this Court for family pensionwithin a period of four weeks from the date of suchapplication. This writ petition is allowed. No costs.11.If the said order of this Court has already been given effectto, the same benefit shall be extended to the petitioners for familypension as well. 12.With the above direction, the writ petition stands disposedof. No costs.rgr Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo1.The Secretary to Government of Tamil Nadu Transport Department, Fort St.George, Chennai 600 0092.The Secretary to Government of Tamil Nadu Finance Department, Fort St. George, Chennai 600 009.3.The Managing Director, Tamil Nadu State Transport Corporation (Villupuram Division II) Ltd.RangapuramVellore 632 009.+ 1 cc to Mr. D. Sadhasivan, Advocate SR.59290W.P.NO.3396 of 2006GR(CO)EU 18.11.2009.