Madras High Court
Smt.P.Mohana vs Principal Account General (A&E) on 9 September, 2014
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.09.2014 CORAM THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN W.P.No.7780 OF 2012 Smt.P.Mohana .. Petitioner -Vs- 1.Principal Account General (A&E) Tamil Nadu, No.361, Anna Salai Chennai 600 018 2.Pension Payment Officer College Road, Chennai 3.The Dean Tirunelveli Medical College Tirunelveli 4.The State of Tamil Nadu Represented by its Secretary Health & Family Welfare Chennai 5.The Director, Tamil Nadu Medical Education having office at Directorate of Medical Education Poonamallee High Road Chennai 600 010 6.P.Ramachandran 7.P.Loganathan 8.P.Sundar 9.Ms.Renukadevi .. Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the first and second respondent to sanction and disburse the family pension and death benefits from the date of death that is 22.01.2002 to the petitioner along with interest thereon till date of realisation. For Petitioner : Mr.A.Govardhan Rao For Respondents : Ms.Hema Muralikrishnan for R1 Mr.Rm.Muthukumar for R2 to R5 Mr.G.T.Subramanian for R6 to R9 O R D E R
The petitioner has come forward with the above writ petition praying for a direction to the first and second respondents to sanction and disburse the family pension and death benefits from the date of death of her husband i.e. 22.01.2002, to the petitioner, along with interest thereon till date of realisation.
2. The case of the petitioner is that she is the wife of late Dr.D.Parthasarathi, who had attained superannuation on 31.03.1993 and was drawing pension. According to the petitioner, her husband was working as a Senior Civil Surgeon in the Government Medical College. Dr.Parthasarathi passed away on 22.01.2002 leaving behind him the petitioner, his three sons and one daughter as his legal heirs. According to the petitioner, she is the only person entitled to claim family pension and benefits and hence approached the second respondent for grant of family pension and all other estate of her husband. The second respondent, after verifying the pension records, found that there is no nomination of petitioner's name in the Pension Payment Order papers. The petitioner stated that she had acquaintance with the deceased Dr.Parthasarathi and his family and was residing adjacent to his clinic as neighbour and that the petitioner and her family members were getting treatment from him. The petitioner further stated that Mrs.Saradha Parthasarathi was the first wife of late Dr.Parthasarathi and they had three children. The first wife fell sick due to chronic Gynaecological disorders and was frequently hospitalized and that she took care of their three minor children, whenever Mrs.Saradha Parthasarathi was hospitalised. In 1974 she was completely bedridden and Dr.Parthasarathi was frequently transferred to various stations and that the petitioner was taking care of his affairs, minor children including his first wife Mrs.Saradha Parthasarathy at Madras. Seeing the affection she was showing to the minor children and his wife, Dr.Parthasarthi proposed to the petitioner to marry him for the purpose of taking care of his minor children and his ailing wife. She agreed, but the marriage did not take place due to the existing laws in the society and they started living together as husband and wife from the year 1975 and this fact was known to the first wife as well as to her relatives and friends. The petitioner gave birth to a female child in the year 1976 and in the birth certificate, the name of the father is mentioned as Parthasarathi and the petitioner's name is noted as mother. The petitioner further stated that her daughter subsequently became a major, got married and in the marriage invitation, it is stated that the petitioner is the mother and late Dr.Parthasarathi as the father of the daughter born to them. Mrs.Saradha Parthasarathi pre-deceased Dr.Parthasarathi and Parthasarathi died on 22.01.2002. Till the date of his death, the petitioner and Dr.Parthasarathi were living as husband and wife. The petitioner further stated that during the life time of the her husband, Sastiaptha Purthi (60th birthday) was conducted according to the Hindu religious rites and in the presence of all the children and all the relatives of the petitioner and Dr.Parthasarathi. It is further stated that the Tahsildar has also issued a Legal Heir Certificate including the name of the petitioner herein. The petitioner's request for grant of family pension was rejected by the first respondent on the ground that the name of the petitioner was not mentioned in the records. It is further stated by the petitioner that the respondents failed to look into that the grant of family pension is only to compensate the destitute widow, which cannot be deprived of, as it is a social welfare measure rendering socio-economic justice provided to take care of themselves during the hey days of their life. In the above circumstances, the petitioner prayed that a Mandamus may be issued directing the first and second respondent to pay family pension and death benefits due to the petitioner's husband late Dr.Parthasarthi along with interest, till the actual amount is paid to the petitioner.
3. During the pendency of the writ petition, respondents 6 to 9 got impleaded as parties in this case. Respondents 6 to 9 have filed a counter supporting the case of the petitioner. They are all legal heirs of late Dr.Parthasarathi.
4. The third respondent has filed a counter stating that Parthasarathi joined in the Government Service as Assistant Surgeon in Government T.B. Hospital, Nagercoil on 23.10.1964 and he retired from service on 31.03.1993, after attaining the age of superannuation, namely 58 years. The petitioner's husband was paid all the terminal benefits during his life time. Since Parthasarathi died after retirement, the Accountant General (Pension), Chennai, has to decide the family pension eligibility. As per the records submitted by Parthasarathi, the names of Saradha Parthasarathi, Ramachandran, Loganathan and Sundar alone were reflected in the details of nomination by Dr.Parthasarathi. Thereafter in 1991, Dr.Parthasarathi revised the nomination while he was working at Ambasamudram and modified and submitted the revised nomination details. The following are the nominees as per the modified nomination details: P.Ramachandran, P.Loganathan and P.Sundar (sons) and P.Renugadevi (daughter). Hence the third respondent prayed for the dismissal of the writ petition.
5. The first respondent has filed a counter stating that Smt.P.Mohana, aged 69 years, filed a petition seeking family pension, in respect of late Dr.Parthasarathi claiming to be his widowed wife. According to the first respondent, the retired Government servant himself had categorically submitted in his application that he was a widower and he submitted a single photograph for pension and hence the contention that the writ petitioner is a legally wedded wife is not tenable. It is further stated that during the subsistence of first marriage, the petitioner had started living with Dr.Parthasarathi and that his first wife died on 12.10.1982. The plea of the petitioner that absence of evidence to the marriage of the petitioner with Dr.Parthasarathi cannot be accepted. The first respondent further submitted that in terms of Rule 49(6) of Tamil Nadu Pension Rules, 1978, which is extracted below, the family pension is payable in the case of widow or widower up to the date of death or remarriage, whichever is earlier.
" (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.
(ii) if there are more than one such son or daughter suffering from disorder or disability of mind including mentally retarded or who are physically crippled or disabled, the family pension shall be paid, -
(a) in the order of their birth, irrespective of the sex of the child and the immediate younger of him or her will be eligible for family pension only after the elder above him or her becomes ineligible for family pension.
(b) in cases of twin children to such twin children in equal shares. In the event of any of such children ceasing to be eligible for family pension his or her share of family pension will become payable to the other such child and when both such children become ineligible for family pension the family pension will become payable to the next eligible child or twin children, as the case may be;
(iii) the family pension shall be paid to such son or daughter through the guardian as if he or she were minor;
(iv) before allowing the family pension for life to any such son or daughter the sanctioning authority shall satisfy that the handicap is of such a nature as to prevent him or her from earning his or her livelihood and the same shall be evidenced by a certificate obtained from a medical officer not below the rank of a Civil Surgeon setting out, as far as possible the exact mental or physical condition of the child.
(v) the person receiving the family pension as guardian or such son or daughter shall produce every three years a certificate from a medical officer not below the rank of a Civil Surgeon to the effect that he or she continues to suffer from disorder or disability of mind or continues to be physically crippled or disabled.
(vi) such daughter shall not be eligible for family pension from the date on which she gets married.
(vii) the family pension payable to such son or daughter shall be stopped if he or she starts earning his (or) her livelihood/
(viii) it shall be the duty of the guardian of such son or daughter to furnish every month to the Treasury or Bank, as the case may be a certificate to the effect that he or she has not started earning his or her livelihood; and in the case of such daughter that she has not yet married.]
(ix) in the case of a mentally retarded son or daughter, the family pension shall be payable to a person nominated by the Government Servant or the pensioner as the case may be, and in case no such nomination has been furnished to the Head of Office by such Government servant or pensioner during his life time, to the person nominated by the spouse of such Government servant of family pensioner, as the case may be, later on.]"
6. In the instant case, the petitioner cannot be said to be the widow of Dr.Parthasarathi, as admittedly no marriage was solemnized between them. He further submitted that when the Government Servant contracts a second marriage, while his first wife is surviving, the second wife is the illegitimate wife in so far as Tamil Nadu Pension Rules, 1978 is concerned. As such, the petitioner is not entitled to family pension or other benefits in respect of the deceased government servant. However, children born through the illegitimate wife are the legal heirs are members of the Government's servant's family. As such they may be eligible for a share in the family pension. In the instant case, there is no eligible family member to get the family pension and hence for the aforesaid reasons, the first respondent prayed for the dismissal of the writ petition as devoid of merits.
7. Heard both sides.
8. Learned counsel for the petitioner has placed reliance on the judgment of the Hon'ble Supreme Court in G.L.Bhatia vs. Union of India and Another reported in (1999) 5 SCC 237. In this case, the Apex Court has considered the case of a widower. In the said case the husband and wife were living separately and the name was not included in any nomination, the Apex Court held that in the absence of nomination, the person is entitled to family pension. Any nomination, which is contrary to statute will be inoperative. This decision will not be applicable to the facts of the petitioner, as the name of the petitioner has not been nominated.
9. It is an admitted case that the petitioner was living with late Dr.Parthasarathi and gave birth to a female child Renuka Devi. There was no marriage at all. As per the Government Rules, as stated by the respondents, if there is a second marriage during subsistence of the first marriage, it is a misconduct and hence in order to avoid disciplinary proceedings, the petitioner's husband did not mention the name of the petitioner either in the nomination or in the service register. The first respondent has stated that Dr.Parthasarathi has mentioned his name and affixed his photograph, when he submitted the application for family pension. This will clearly show that the petitioner's husband, in order to safeguard his interest, has excluded the name of the petitioner. Unless otherwise there is a proper nomination or a valid marriage, the petitioner cannot seek for the benefit of family pension. Even the Pension Rule 49(13)(b)(ii) of Tamil Nadu Pension Rules, 1978, which is extracted below, excludes the illegitimate wife:
"(ii) son who has not attained the age of twenty five years and unmarried daughter who has not attained the age of twenty five years including such son and daughter adopted legally adopted and also such son or unmarried daughters born through illegitimate wife before retirement and such son or daughter born after retirement, on or after 1st January 1979."
10. The learned counsel for the petitioner contended that this court can consider the living relationship and extend the benefit of family pension. The Protection of Women from Domestice Violence Act came into force in the year 2005 and the person, who died in 2002 prior to coming into force of the Act, the benefit of the Act, even assuming that such contention is true, cannot be extended to a person who is no longer alive on that date.
11. The petitioner and other impleaded parties have filed a consent affidavit enabling the petitioner to get the benefits. Since there is no legal marriage between the petitioner and Dr.Parthasarathi and that Dr.Parthasarathi has neither nominated nor mentioned the name of the petitioner as his wife to get the pensionary and other benefits, the petitioner is not entitled to any benefits. He did not choose to include the name of the petitioner in the first nomination or in the revised nomination. However, in the revised nomination, the name of the daughter born through petitioner and Parthasarathi is mentioned, but the name of the petitioner is not mentioned, this court accepts the contention of the first respondent. Since the petitioner's name does not fall under Rule 49(13)(b)(ii) of the Tamil Nadu Pension Rules, 1979, which is extracted supra, the petitioner is not entitled to any benefits. The children who have attained the age of 25 years whether legitimate or illegitimate will not be entitled to the benefit, if they had crossed 25 years of age. In the case on hand, as per the consent affidavits filed by the respondents 6 to 9, they have crossed the age of 25 years and hence they are also not eligible to receive any family pension from the respondents in respect of their deceased father Dr.Parthasarathi.
For the foregoing reasons, the writ petition fails and the same is dismissed. However, there shall be no order as to cost.
09.09.2014 Index : Yes/No Internet : Yes/No asr/ To
1.Principal Account General (A&E) Tamil Nadu, No.361, Anna Salai Chennai 600 018
2.Pension Payment Officer College Road, Chennai
3.The Dean Tirunelveli Medical College Tirunelveli
4.The State of Tamil Nadu Represented by its Secretary Health & Family Welfare Chennai
5.The Director, Tamil Nadu Medical Education having office at Directorate of Medical Education Poonamallee High Road Chennai 600 010 S.VAIDYANATHAN, J.
asr/ W.P.No.7780 of 2012 09.09.2014