Madras High Court
Amalorpavam @ Amalorpava Mary vs The Government Of Tamil Nadu on 12 January, 2018
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 12.01.2018
CORAM
THE HONOURABLE MR. JUSTICE T.RAJA
W.P.No.6284 of 2017
Amalorpavam @ Amalorpava Mary ...Petitioner
Versus
1. The Government of Tamil Nadu
rep. by its Secretary,
Transport Department,
Secretariat, Fort St. George,
Chennai-9.
2. The Managing Director,
Tamil Nadu State Transport Corporation (TNSTC),
Dharmapuri Region, Salem.
3. The Administrator,
TNSTC Employees Pension Fund Trust,
Thiruvallur House, Pallavan Salai,
Chennai-2. ... Respondents
Prayer: Writ petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the respondents to grant family pension to the petitioner for the services rendered by the petitioner's husband late Gabriel. C (DR-1035) with the 2nd respondent.
For Petitioner : Mr.Nirmaleswar. T.
For 1st Respondent : Mr.V.Jayaprakash Narayanan,
Special Government Pleader
For 2nd Respondent : Mr.R.K.Gandhi, Standing Counsel
O R D E R
The Writ Petition has been filed seeking to issue a Writ of Mandamus, directing the respondents to grant family pension to the petitioner for the services rendered by the petitioner's husband late Gabriel. C (DR-1035) with the 2nd respondent.
2. According to the petitioner, being a widow of late Gabriel, who was a Defence Personnel and after retiring from Defence Services, subsequently, he joined the Tamil Nadu State Transport Corporation, Dharmapuri Region, Salem, the 2nd respondent herein as driver and retired from service on 30.10.2003, although, receiving pension for his defence service at the time of joining the 2nd respondent as a driver, after his retirement from the Transport Corporation w.e.f. 30.10.2003 also, he was granted pension. While so, the petitioner's husband passed away, leaving behind one son and 4 daughters and the petitioner as his legal heirs on 2.3.2012. All of a sudden, from the date of death of her husband, the 2nd respondent alone refused to pay the pension, when the Defence Department continue to pay the same to the petitioner. Aggrieved by the non-payment of the family pension, as a legal heir, a representation was given by the petitioner on 27.11.2015 seeking family pension. But, she was orally informed that on account of receiving pension from the Defence Department, she is not entitled to receive yet another pension from the 2nd respondent as two pensions viz., one pension from Defence Service and second pension from the State Service.
3. This issue is no longer res integra. By various orders passed by this Court, this issue has already been settled by this Court. One such order has been passed by me which is reported in (2013) 6 MLJ 417 (Lakshmi vs. Secretary to the Government, Public (Political Pension-IV) Department and others) in which I have held that the freedom fighter, who participated in freedom movement, in recognition of his participation, the Central Government paid Freedom Fighter's Pension. In addition, he was also entitled to get freedom fighter's pension from the State Government. While these two pensions are being paid, as the same person was employed in Civil Service and after his retirement, he was also entitled to get pension for the Civil Service, in all, the petitioner therein was paid three pensions. Therefore, it was held that after his death, his wife is also entitled to get all the 3 pensions, namely, Central Government Freedom Fighter's Family Pension, State Civil Service Family Pension and State Freedom Fighter's Family Pension. It is pertinent to extract paragraphs 3 (i) and (ii) in this regard in the aforesaid decision hereunder :
''3(i) Admittedly, in the present case, during the life time of the petitioner's husband late Perumal for having participated in the freedom movement, in recognition of his participation the Government of India paid Central Government Freedom Fighter's Pension. In addition to that, he was enjoying the freedom fighter pension from the State. That apart, as he was employed in the civil service, after his retirement, he was also getting Civil (Service) Pension. In all, the petitioner's' husband late Perumal was enjoying three pensions. After his death, the petitioner, who is the wife of late Perumal was also paid with Central Freedom Fighter Family Pension. In the meanwhile, the Tamil Nadu Pension Rules, 1978 underwent an amendment. As a result, G.O.Ms.No.23, Finance (Pension) Department, dated 6.1.1996 was passed and sub-rule 13(B) has been inserted, and thereby, Family Pension admissible under this rule shall not be granted to a person who is already in receipt of family pension or is eligible therefor under any other pension rules. In view of that, the 4th respondent issued a letter to the petitioner to exercise her option to any of the family pension as she cannot get three family pensions. Therefore, the question raised in the writ petition is whether the petitioner is entitled to get three family pension.
(ii) A similar issue has come up for consideration before this court in Vellithayammal v. The Secretary to Government, Public (Political Pension-IV) Department, Secretariat (supra). This Court while dealing with the same G.O.Ms.No.23/Pension, Freedom Fighters, Civil Service/Pension, along with Rule 13(B) has held that the petitioner therein is entitled to civil service pension as a matter of right, and the freedom fighters pension cannot be terms as pension within the meaning of Rule 13(B) for the reason that the freedom fighter's pension is granted to him as per the scheme framed by the Government. Rule 13(B) inserted as per G.O.Ms.No.23, Finance (Pension) Department in exercise of the powers conferred under Article 309 of the Constitution of India amending the Tamil Nadu Pension Rules, 1978 is given as under :
Rule 13(B) Family Pension admissible under this rule shall not be granted to a person who is already in receipt of Family Pension or is eligible therefor under any other pension rules, provided that a person, who is otherwise eligible for Family Pension under this rule, may opt to receive family pension under this rule if he foregoes family pension admissible for many other rules.
Although, a close reading of the above rule makes it clear that receiving two kinds of civil pensions is prohibited, it also further makes clear that there is no restriction for payment of military pension to an employee, who got employment in the civil service after his retirement from the military service. Further, the family pension referred to under Rule 13(B) is only civil pension and it is nothing to do with Freedom Fighters' Pension. Therefore, by no stretch of imagination, the same can be termed as freedom fighter's pension on account of the service rendered in the civil service. Moreover, it was observed that the family pension is referred under the civil pension and it has nothing to do with the pension payable to a freedom fighter. On this basis, this Court by quashing the impugned order refusing to grant one pension, further directed the respondent therein to pay freedom fighters' pension in addition to the Civil Service Pension which the widow was receiving on account of the service rendered by her deceased husband.
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This Court having considered an identical and similar issue above, has held that Rule 13(B) of the Tamil Nadu Pension Rules, 1978 was inserted only for the purpose of avoiding two pensions to the petitioner and therefore, the above said rule has got nothing to do with the pension payable to the freedom fighters and also for the reason that the freedom fighter's pension payable to the freedom fighter as per the scheme framed by the Government cannot be termed by any strength of imagination as pension on account of service rendered in the civil service. The above observations clearly apply to the case of the petitioner herein also. When this Court has already held that the object in granting the freedom fighters pension was only to honour the freedom fighters and to mitigate the suffering of those who had given everything to the country in the hours of its need, the freedom fighter's pension, by no stretch of imagination, can be termed as a pension on account of the service rendered in the civil service. Above all, if the argument of the respondent is accepted that the receipt of Civil Service Pension will disentitle a freedom fighter to get his Civil Service Pension, this will amount to deprivation of the National honour bestowed upon the freedom fighters for their supreme sacrifice. Further, the logic adopted by the 4th respondent in the present case to restrict one pension to the widow after the death of her husband when the very same department has paid three family pensions to the petitioner's husband late Perumal will not stand to any good reasoning, because when the petitioner's husband during his life time was allowed to receive all the three family pensions, the petitioner, being a widow, is also entitled to receive all the pension benefits. Therefore, as I highlighted above, when the respondent department has not restricted the number of family pensions to the petitioner's husband during his life time, they cannot restrict the family pension to the petitioner. Therefore, the impugned order is quashed and the respondents are directed to pay freedom fighter's pension to the petitioner in addition to the Civil (Service) Pension, which she is receiving on account of the timely service rendered by her late husband to our Nation.
Accordingly, W.P.No.3743/2010 is allowed. No costs. Connected pending M.P.No.1/2010 is closed.''
4. In the aforesaid judgment, when it is held that a pensioner receiving three types of pension, namely, Freedom Fighter's Pension from the Central Government, another Freedom Fighter's Pension from the State Government and Civil Service Pension for having employed in Civil Service cannot be restricted to one pension and if it is restricted, that would amount to deprivation of the national honour bestowed upon the freedom fighters for their supreme sacrifice made to the freedom of our Nation from foreign rule. The same analogy will also equally apply to the present case inasmuch as the petitioner's husband late Gabriel, C. having employed in Indian Army, retired there from and received pension as Ex-serviceman. After his retirement from Army, he joined as a driver in the 2nd respondent Tamil Nadu State Transport Corporation and again retired from service w.e.f. 30.10.2003 and for his services rendered with the Transport Corporation, he was also paid with pension by order dated 18.12.2006. Therefore, the petitioner while receiving her family pension from Indian Army, there is no bar for her to receive the pension from the State Transport Corporation for the services rendered by her husband as a driver in the 2nd respondent Transport Corporation.
5. In view of the above settled legal position, the petitioner herein, who is the wife of late C.Gabriel is entitled to get Family Pension from the 2nd respondent as it is nothing to do with the Rule 22 of the Tamil Nadu Transport Corporation Employees Pension Fund Rules.
6. Learned Special Government Pleader appearing for the respondents also having referred to the above two judgments is unable to support the denial of the Family Pension by the 2nd respondent.
7. Therefore, in view of the aforesaid settled legal position, this Court has no hesitation to direct the 2nd respondent to pay the Family Pension to the petitioner, who is the widow of late C.Gabriel, within a period of four weeks from the date of receipt of a copy of this Order. It is made clear that the respondents are directed to release the arrears from the date of death of the petitioner's husband, namely, C.Gabriel on 02.03.2012, failing which, interest at the rate of 10% p.a. will be calculated.
8. The Writ Petition is disposed of accordingly. No costs. Consequently, connected Miscellaneous Petition is also closed.
12.01.2018 Index:Yes/No Internet:Yes/No Note : Issue order copy after one week.
tsi To
1. The Secretary, Government of Tamil Nadu, Transport Department, Secretariat, Fort St. George, Chennai-9.
2. The Managing Director, Tamil Nadu State Transport Corporation (TNSTC), Dharmapuri Region, Salem.
3. The Administrator, TNSTC Employees Pension Fund Trust, Thiruvallur House, Pallavan Salai, Chennai-2.
T.RAJA, J.
tsi W.P.No.6284 of 2017 12.01.2018