Madras High Court
Duraivani vs The District Collector on 24 March, 2023
W.P.No.770 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 24.03.2023
CORAM
THE HONOURABLE Mrs. JUSTICE J.NISHA BANU
W.P.No.770 of 2015
Duraivani
W/o Late M.Padmanabhan .... Petitioner
vs
1. The District Collector,
Vellore District,
Vellore.
2. The kPrincipal accountant General
(Accounts & Entitlements),
Anna Salai,
Chennai.
3. The District Treasury Officer,
Vellore District,
Vellore.
4. The District Medical Officer,
Vellore District,
Vellore.
5. The Joint Director,
Health Services,
Vellore District, Vellore. .... Respondents
1/15
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W.P.No.770 of 2015
Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Mandamus to direct the 4th respondent to sanction the Civil
family pension to the petitioner for the service rendered by the petitioner's
husband Padmanabhan as a "Ambulance Attender" at Vellore Tuberculoses
Hospital, Vellore.
For Petitioner : Mr.D.Rajagopal
For Respondents : Mr.J.C.Durairaj,
Additional Government Pleader
for R1, R3 to R5
Mr.S.Balaji for R2
ORDER
This writ petition has been filed to direct the 4th respondent to
sanction the Civil family pension to the petitioner for the service rendered
by the petitioner's husband Padmanabhan as a "Ambulance Attender" at
Vellore Tuberculoses Hospital, Vellore.
2. Heard the learned counsel for the petitioner, the learned Additional
Government Pleader appearing for the 1sst, 3rd to 5th respondents and the
learned counsel appearing for the 2nd respondent.
3. The case of the petitioner is that her husband Padmanabhan was an
ex-serviceman. After discharged from service in Army, he joined as an
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W.P.No.770 of 2015
ambulance attender in Vellore Tuberculosis Hospital and he was discharged
from service in the year 1987. After his discharge from service, he applied
for pension when he was alive. Since he was getting army pension, the State
Government did not incline to grant him State Service pension. The
petitioner being a widow have tried her level best to approach all the
respondents for getting pension, but all went in vain. Hence, the writ
petition has been filed.
4. When the matter is taken up for hearing, the learned counsel for the
petitioner would submit that after filing of the present writ petition, the
petitioner was getting Civil Family Pension from 02.09.2016 onwards.
However, she is entitled to get Family Pension from 25.09.2002 onwards.
The respondent did not pay Family Pension from 25.09.2002 to 01.09.2016
i.e., for a period of 13 years and 11 months. Therefore, he would pray to
direct the respondents to grant family pension to the petitioner from
25.09.2002 to 01.09.2016.
5. It is also brought to the notice of this Court, the Government Order
passed in G.O.(Ms)No.290 Public (Ex-Servicemen) Department dated
05.04.2017, in which, the Government has sanctioned Dual Family Pension
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W.P.No.770 of 2015
for the families of Defence Personnel who had served in the State and
retired. The relevant paragraph Nos.3 to 6 of the said G.O. reads as follows:
"3.The Joint Director (i/c) Directorate of Ex-
Servicemen's Welfare has therefore requested the Government
to issued orders for grant of dual family pension to the
families of Ex-Servicemen who have been re-employed in
Civil (i.e.) State Government Service and earned a pension
out of the re-employment, prior to 01.04.2003 (i.e.) before the
introduction of Contributory Pension Scheme.
4. After careful examination, the Government has
decided to accept the proposal of the Joint Director (i/e)
Directorate of Ex-Servicemen's Welfare and accordingly order
for the sanction of Dual Family Pension to those families of
Ex-Servicemen who have been re-employed in Civil (i.e) State
Government Service and earned a pension out of the re-
employment prior to 01.04.2003 (i.e.) before the introduction
of Contributory Pension Scheme, in addition to Military family
Pension already drawn by them.
5. This order shall take effect from 02.09.2016.
6. Necessary amendment to Rule-49 (13-B) of Tamil
Nadu Pension Rules 1978 shall be issued by Finance
(Pension) Department separately."
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W.P.No.770 of 2015
6. In a similar circumstances, the Division Bench of this Court in
Secretary to Government, Government of Tamil Nadu, Education
Department, St.George Fort, Chennai - 9 vs. M.Alamelu, reported in 2018
(1) CWC 285 has held as hereunder:
"?3. After hearing both sides, the learned Single Judge,
relying upon a decision of this Court reported in 2010(2)
CWC 555 (Tamil Nadu Arasu Pokkuvarathu Madurai
Thozhilalar Sangam, rep. by its president and another Vs.
Government of Tamil Nadu, rep. by its Secretary, Transport
Department, Chennai - 9 and two others), has directed the
third appellant to continue to pay the family pension to the
respondent from the date of death of her husband.
Aggrieved by the same, the present appeal has been filed
by the State.
4.The learned Special Government Pleader appearing
for the appellants,by relying upon Rule 49 (13-B) of the
Tamil Nadu Pension Rules, 1978, (hereinafter referred to
as "the Rules") submitted that Sub Rule (13-B) was
inserted by G.O.Ms.No.23, dated 6th January, 1996, vide
SRO B-59/1996 and as per the said Sub Rule, the family
pension cannot be granted to a person, who is already in
receipt of family pension. Since the respondent has been
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W.P.No.770 of 2015
receiving pension from the Army, based on the past
military service rendered by her husband, as per the said
Rule, she is not entitled to get the family pension from the
State based on the past service rendered by her husband in
the Education Department. But, the learned Single Judge,
without considering the same, has erroneously allowed the
writ petition. Thus, he prayed for setting aside the order of
the learned Single Judge.
5.Per contra, the learned counsel appearing for the
respondent, by relying upon Rule 49(14)(b) of the Rules,
submitted that Rule 49 (13-B) of the Rules is not applicable
to the military pensioners, who are retired from military
services on or after 1st April 1964 or retires from service
after commencement of these rules and therefore, the
respondent is entitled for both the pensions. More over, the
respondent's husband had opted Rule 16(1)(a) of the Rules
and retired from the State Government Service on
31.05.2004 and therefore, after his retirement, he had been
receiving pension both from the State as well as from the
Army, and he was not refused to avail such pensions. In
support of his contention, he relied upon the decision of
this Court in 2010(2) CWC 555 (Tamil Nadu Arasu
Pokkuvarathu Madurai Thozhilalar Sangam, rep. by its
president and another Vs. Government of Tamil Nadu, rep.
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W.P.No.770 of 2015
by its Secretary, Transport Department, Chennai -9 and
two others). Thus, he prayed for dismissal of this appeal.
6. Keeping the submissions made on either side, we
have carefully gone through the entire materials available
on record. It is the main submission of the learned counsel
for the appellants that in view of the insertion of Sub Rule
(13-B) in Rule 49 of the Rules, the respondent is not
entitled to get pension from the State as she has been
receiving pension from the Army. According to the
respondent, as per Rule 49(14)(b), the Sub Rule (13-B) to
Rule 49 is not applicable to the case of the respondent.
When the matter came up for hearing before the First
Bench of this Court on 21.01.2016, the First Bench of this
Court has held as follows:
"1. The learned Special Government
Pleader appearing for the appellants contends
that both kinds of family pension are not
admissible in view of Sub-Rule 13-B of Rule 49
of the Tamil Nadu Pension Rules.
2.We may note that Rule 49 itself deals with
only family pension. Further, Sub Rule 13-B of
Rule 48 was inserted by G.O.Ms.No.23, dated
06.01.1996. There appears, prima facie, some
confusion arising over insertion of Sub-Rule 13-
B, when Sub-Rule (14) continues to be in force.
3.The learned Special Government Pleader
appearing for the appellants seeks time to place
the notification by which Sub-Rule (13-B) was
inserted and also to obtain instructions as to
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W.P.No.770 of 2015
what is the mischief which it was supposed to
cure.
4.List the matter on 28.01.2016."
Though the appellants sought time to place the notification
by which Sub-Rule (13-B) to Rule 49 was inserted, he has
not produced any such notification.
7. For better appreciation, Sub Rule (13-B) and
(14)(b) to Rule 49 of the Rules are reproduced hereunder.
"(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
therefore 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
forgoes family pension admissible from any other
rules."
"(14) Nothing contained in this rule shall
apply to -
(a)...
(b) a military pensioner who has retired
from military service on or after the 1st April,
1964 or retires from such service after the
commencement of these rules on retiring pension,
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W.P.No.770 of 2015
service pension or invalid pension and is re-
employes in a civil service or post before attaining
the age of superannuation."
8. When Sub Rule (13-B) contemplates that a person,
who is already in receipt of family pension under any other
pension rules, shall not be granted pension under this
Rules, provided if he opted to forgo the pension granted
under the other pension rules, contrary to the same, Sub
Rule (14) contemplates that the Tamil Nadu Pension Rules
are not applicable to the military pensioner, who has
retired from military service on or after 01.04.1964 or
retires from such service after the commencement of these
rules on retiring pension, service pension or invalid
pension and is re-employed in a civil service or post before
attaining the age of superannuation. Sub Rule (13-B) of the
Rules was inserted by G.O.Ms.No.23 only on 06.01.1996.
Though Sub Rule (13-B) specifically states that the receipt
of family pension "under any other Rules" would disentitle
the person from getting pension under this Rule, Sub Rule
(14) gives exclusion to Sub Rule (13-B) in respect of
military pensioner, who has retired from military service on
or after 1st April 1964 or after the commencement of these
rules. Thus, it is clear that Sub Rule (13-B) will not apply
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W.P.No.770 of 2015
to a military personnel, who have retired from service on
or after 1st April, 1964 or after the commencement of these
rules. Further, Section 16(1)(b) of the Rules provides an
option to ex-serviceman to continue to draw military
pension, in which case his former military service shall not
count as qualifying service in the reemployment.
9. Admittedly, in this case, the husband of the
petitioner retired from State service on attaining the age of
superannuation on 31.05.2004 and he had been receiving
both the pensions by giving option as per Rule 16(1)(b) of
the Rules. Therefore, now the petitioner, being the widow
of the pensioner, cannot be denied pension by the State on
the ground that she has been receiving pension from the
Army. In other words, she is entitled to receive the pension
both from the Army and also State as received by her
husband. The learned Single Judge has also rightly
allowed the writ petition and directed the third appellant to
continue to pay the family pension to the respondent from
the date of death of her husband. There is no merit in the
contention of the learned counsel for the appellants. Thus,
this writ appeal is liable to be set aside."
7. The learned counsel appearing for the petitioner submitted that the
petitioner is entitled for family pension from the State Government after the
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W.P.No.770 of 2015
death of her husband and the same cannot be denied.
8. Mr.J.C.Durairaj, learned Additional Government Pleader
appearing on behalf of the respondents apart from reiterating the
contentions raised in the counter affidavit submitted that the Rule position
is very clear under the Tamil Nadu Pension Rules. The learned Additional
Government Pleader submitted that this issue was raised in the assembly
and after considering the grievance expressed by similarly placed persons,
the Hon'ble Chief Minister announced in the Floor of the Assembly on
02.09.2016 that Dual family pension will be sanctioned to the families of
the Defence personnel who have also served in the State Government
Service and retired. Immediately, after this statement was made by the
Hon'ble Chief Minister, a Government order was passed in G.O.Ms.No.290,
dated 05.04.2017 and relying upon the same, the petitioner was sanctioned
family pension with effect from 02.09.2016. The learned counsel submitted
that the petitioner is not entitled for any family pension for the period from
25.09.2002 to 01.09.2016, since the pension Rule bars such sanction of
family pension.
9. This Court, considered the submissions made by the learned
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W.P.No.770 of 2015
counsel on either side and also perused the material available on record.
10. The issue that has been raised in the present Writ Petition is
squarely covered by the judgment of the Division Bench that has been
referred supra.
11. The Division Bench after considering the relevant Pension Rules
has come to a very categorical conclusion that dual pension is permissible
and the bar that has been imposed in the pension Rules will not apply to
Army men. In that particular case, the Division Bench has held that the
husband of the petitioner therein was receiving dual pension.
12. In the present case, the petitioner's husband was receiving army
pension and he died when his application for family pension was pending.
His wife, the present petitioner is receiving army pension and family
pension from 02.09.2016 onwards. The petitioner is entitled to receive
pension both from the Army and also from the State and thus, she is
entitled for family pension for the period from 25.09.2002 to 01.09.2016.
12. In view of the above judgment of the Division Bench, this Court
is bound to follow the same and a different view cannot be taken in the
present Writ Petition.
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W.P.No.770 of 2015
13. In view of the above, the petitioner is held to be entitled for
family pension for the period from 25.09.2002 to 01.09.2016. There shall
be a direction to the second respondent to immediately rework the family
pension that is payable to the petitioner from 25.09.2002 to 01.09.2016 and
pass appropriate orders within a period of six weeks from the date of receipt
of a copy of this order. Consequent upon the same, the petitioner shall be
paid the arrears of the family pension within a period of six weeks
thereafter.
14. This Writ Petition is allowed with the above directions. No costs.
24.03.2023
Index:Yes/No
Speaking/Non-speaking order
vsi
To
1. The District Collector,
Vellore District,
Vellore.
2. The kPrincipal accountant General
(Accounts & Entitlements),
Anna Salai,
Chennai.
3. The District Treasury Officer,
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W.P.No.770 of 2015
Vellore District,
Vellore.
4. The District Medical Officer,
Vellore District,
Vellore.
5. The Joint Director,
Health Services,
Vellore District, Vellore.
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W.P.No.770 of 2015
J.NISHA BANU,J.
vsi
W.P.No.770 of 2015
24.03.2023
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