@JUDGMENTTAG-ORDER
V. Dhanapalan
1. Heard Ms. V. Pushpa Learned Counsel appearing for the petitioner and Mr. S.V. Duraisolaimalai learned Additional Government Pleader appearing for the respondents.
2. The petitioner challenges an order passed by the 2nd respondent in R.C. No: 20517/2005/A1 dated 11.02.2008 in and by which the petitioner''s claim for re-fixation of the pensionary benefits of his father was rejected and seeks to quash the same and for a consequential direction to the respondents to sanction life time arrears of a sum of Rs.1,64,741.50 together with interest as applicable in law.
3. It is the case of the petitioner that his father worked in the School of Arts and Crafts, Chennai - 600 003, run by the Government of Tamil Nadu as Metal Work Department Teacher and he retired on 30.06.1953. His pension was sanctioned by the Pension Pay Order No: A.38364 received from the 2nd respondent through post. Petitioner''s father died on 17.06.1980. The Government of Tamil Nadu passed a Government Order in G.O. Ms. No: 579, Finance (Pension) Department dated 15.09.2006 granting refixation of pension and family pension for certain category of its retired pensioners and for payment of arrears arising out of such refixation. As per the above said G.O., petitioner became entitled for claiming the life time pension arrears of his late father as his legal heir since petitioner''s father died between the period 01.06.1960 to 31.05.1988. On 08.01.2007 as per the instructions in the G.O. No: 579, Finance (Pension) Department dated 15.09.2006, petitioner submitted all the requisite documents and records to the 2nd respondent seeking for life time pension arrears.
4. Since petitioner''s mother pre-deceased his father on 23.10.1961, no family pension is payable by the respondents after his father''s death. After the lapse of 7 months, when petitioner contacted the 2nd respondent regarding the stage of the application that he had submitted on 08.01.2007, he was informed by the 2nd respondent that the life time arrears records could not be traced because the PPO No: A 38364 is a very old one and no records relating to this number is available in their office and hence, the application submitted by petitioner will be returned in due course.
5. The application submitted by the petitioner were returned by the 2nd respondent for the reasons that, "in the G.O. No: 579, Finance (Pension) Department dated 15.09.2006, the Government have issued order to refix the pension and family pension of the Government employees who retired/died while in service between 01.06.1960 to 31.05.1988. Since the petitioner retired on 30.06.1953, the question of revision of arrears does not arise". According to the petitioner, the word ''Employees'' and ''while in service'' is not found anywhere in the said original G.O. the said G.O. was issued purely for pensioners/family pensioners, life time arrears to legal heirs only and hence, the said G.O. squarely applies to his case. The said G.O. does not deal with any employees but deals with the pensioners and hence, the question of returning petitioner''s application stating that his father did not die while in service does not arise. Therefore, petitioner submitted a clarification to the return of his application and again re-submitted the application along with other enclosures to support his case. Inspite of repeated representations and clarifications, the respondents failed to pay the life time pension arrears to the legal heir of the deceased Government employee and, therefore, petitioner was constrained to issue a legal notice on 08.01.2008 and the same was received by them. The 2nd respondent issued a reply in R.C. No: 20517/2005/A1 dated 11.02.2008, being the impugned order, stating that the, "Late. I. Kanagasabapathi Naicker, holder of P.P.O. No: A 38364 died on 17.06.1980 and his wife had predeceased him, his pension cannot be refixed with effect from 01.06.1988 (on which date the pensioner/family pension was no more). Hence, the question of sanction of life time arrears as per G.O. 579 to Thiru.I.K. Kanniappan, Son of Late. I. Kanagasabapathi Naicker/P.P.O. A38364 did not arise. The original application along with the enclosures are returned herein". Therefore, the petitioner has challenged the said order as the same is against law and also in violation of G.O. No: 579 dated 15.09.2006. Petitioner also challenged the impugned order on the ground that the petitioner is entitled to arrears as the legal heir of the deceased Government Employee and the respondents failed to consider the Government order in its right perspective and has acted against the established procedure of law and hence, this writ petition.
6. The respondents have filed their counter affidavit and inter alia stated that against the order of the Tamil Nadu Administrative Tribunal in O.A. No: 7224 and 7630 of 1998, the Government had filed W.P. Nos: 18751 to 18755 and the same has been dismissed. Consequent on the dismissal of the writ petition, Government issued orders in G.O. (Ms.) No: 579 Finance (Pension) Department dated 15.09.2006, duly extending the benefits of the orders issued in the G.O. (Ms) No: 271 Finance (Pension) Department, dated 15.06.1998 to the Tamil Nadu Secretariat Retired Officials Association and Tamil Nadu Retired Officials Association, DPI Complex, Chennai. Based on the above government Orders, it has been directed in the G.O. (Ms) No: 579 Finance (Pension) Department that in respect of the pensioners/family pensioners who retired/died after 1.6.1960 till 31.5.1988 and whose pension/family pension + dearness allowance at 608 points per month does not exceed Rs. 500/- shall be re-fixed w.e.f. 1.6.1988 by increasing the sum total of the basic pension and the related Dearness Allowance at 608 points by 60% and whose pension family pension + Dearness Allowance at 608 points per month exceeds Rs.500/- shall be re-fixed w.e.f. 1.6.1988 by increasing the sum total of the basic pension and the related Dearness Allowance at 608 points by 50%. The petitioner''s father Thiru. Kanagasabapathy Naicker retired on 30.06.1953 as Metal Work Department Teacher under the Government Control and died on 17.06.1980 well before the crucial date of implementation w.e.f. 01.06.1960. In the instant case, the petitioner''s father retired on 30.06.1953 and died on 17.0-6.1980 prior to 01.06.1988 which does not cover the crucial date specified in the said Government Order. Hence, the petitioner is not eligible for revision of pension based on the G.O. (Ms.) No: 579, Finance (Pension) Department dated 15.09.2006. Hence, the contention of the petitioner is not maintainable in the eye of law.
7. The respondents contended that the pension in respect of the category of pensioners retired/died during the period from 01.06.1960 till 31.05.1988 should be re-fixed w.e.f. 1.6.1988 at a uniform percentage of 50% and 60% increase respectively. The spouse of the pension has pre-deceased the pensioner and the petitioner died on 17.06.1980. The petitioner''s father retired and died before the effective date of implementation on 01.06.1988. To avail the benefits of the said G.O. the pensioner should have been drawing pension as on 01.06.1988. As the pensioner has expired prior to the date of implementation of revision with effect from 01.06.1988, the pension in respect of the late pensioner cannot be re-fixed with effect from 01.06.1988 and the question of payment of arrears to the petitioner does not arise.
8. As per Rule 49 (6) of The Tamil Nadu Pension Rules 1978, the period for which "family pension" is payable shall be
(i) in the case of widow or widower, upto the date of death or remarriage, whichever is earlier.
In the instant case, spouse of the pensioner had predeceased on 23.10.1961. Hence, the question of family pension does not arise and so the petitioner is not entitled for revision of the family pension. The prayer of the petitioner is not feasible of compliance and the grant of benefit of life time arrears to legal heirs only in the case of pensioners / family pensioners deceased after 01.06.1988. The petitioner''s father is not entitled for the revision of pension since he had retired well in advance of the crucial date and therefore, the question of arrears of family pension does not arise. More over, the petitioner, who himself is a pensioner of the Tamil Nadu Electricity Board, is not entitled for life time arrears in view of the fact that petitioner''s father has expired on 17.06.1980 prior to the implementation of the revision in pension ordered based on the recommendation of Fifth Tamil Nadu Pay Commission and, therefore, they prayed for dismissal of the writ petition.
9. The Learned Counsel for the petitioner in her submissions has strenuously contended that the State Government has taken a policy decision to extend the benefit to the pensioners/family pensioners with effect from 01.06.1988 and issued the Government Order wherein it is specifically directed that in respect of the pensioners/family pensioners who retired/died after 01.06.1960 till 31.05.1988 and whose pension/family pension plus dearness allowance at 608 points per month does not exceed Rs. 500/shall be refixed. She also submits that the Government Order would indicate clearly that as per the revised benefits ordered by the Government, in case of the pensioners who have died, the life time arrears shall be paid to the legal heirs and this petitioner, being the son of the pensioner, the mother having pre-deceased the father, is entitled for the life time arrears and therefore, the benefit of re-fixation has to be extended to the petitioner. She would also submit that the reasons given by the respondents has no support of the legal position as well as the Rules.
10. Per contra, the learned Additional Government Pleader submits that only for the pensioners/family pensioners the benefits of the Government Order in question is to be extended and the petitioner being the son of the pensioner, after a lapse of several years, cannot ask for such a benefit to be extended to him. He would further contend that the petitioner''s father expired on 17.06.1980 well before the crucial date of implementation of the Government Order i.e. 01.06.1988 and, therefore, the claim for revision of pension based on the said Government Order cannot be allowed and that the claim of the petitioner is contrary to the Rules.
11. Heard the Learned Counsel for the petitioner and the learned Additional Government Pleader appearing for the respondents. I have given careful consideration to the submissions made by both the parties and perused the records.
12. Admittedly, petitioner''s father worked in the School of Arts and Crafts, Chennai - 3, run by the Government of Tamil Nadu as Metal Work Department Teacher and retired on 30.06.1953 and his pension was sanctioned by the Pension Pay Order No: A-38364 received from the 2nd respondent. Petitioner''s father died on 17.06.1980. Government of Tamil Nadu passed a Government Order in G.O. Ms. No: 579 Finance (Pension) Department dated 15.09.2006 granting refixation of pension and family pension to certain categories of its retired pensioners and for payment of arrears arising out of such refixation. The said G.O. came into effect with a cut off date namely for those who retired/died between the period from 01.06.1960 to 31.05.1988. As the petitioner''s mother pre-deceased his father and died on 23.10.1961, petitioner, as the legal heir, made an application on 08.01.2007 for payment of life time arrears in respect of his father. However, the said claim has been negatived by the 2nd respondent in the impugned proceedings dated 11.02.2008 stating that the petitioner''s father died on 17.06.1980 and therefore, his pension cannot be refixed with effect from 01.06.1988, on which date the pensioner/family pensioner was no more and therefore, the question of payment of life time arrears to the petitioner has not been considered and the application of the petitioner, along with the enclosures, are returned to him. The above order has been asserted stating that the Government Orders giving benefits to the pensioners/family pensioners and life time arrears shall have to be paid to the legal heirs even in a case where the pension/family pension is not payable as this Government Order has been issued after taking into account the recommendations of the Vth Pay Commission. The Government has also issued order taking into account the earlier orders and gave the benefits to the pensioners/family pensioners, after a representation was given by the Pensioner''s Association. The said order has to be given effect to in the right spirit and the same cannot be interpreted differently. The petitioner''s father had died on 17.06.1980, well before the crucial date of implementation viz. with effect from 01.06.1988 and the mother of the petitioner had pre-deceased his father and therefore, as a legal heir petitioner is entitled for the payment of life time arrears and the order of rejection is against the Rules and established procedure of law.
13. In this context, it has to be seen as to what is the Tamil Nadu Pension Rules 1978 provide for. Rule 49 (6) reads thus,
49 (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 get 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....
In this context what is the Government Policy can be analysed from the Government Order. The relevant paragraphs of the Government Order in G.O. Ms. No: 579 dated 15th September 2006 reads thus,
5. The Government after careful consideration, direct that in respect of the pensioners/family pensioners who retired/died after 1-6-1960 till 31-5-1988 and whose pension/family pension plus dearness allowance at 608 points per month does not exceed Rs. 500/- shall be refixed with effect from 1-6-1988 by increasing the sum total of the basic pension and the related dearness allowance at 608 points by 60% and whose pension/family pension plus dearness allowance at 608 points exceeds Rs. 500/- shall be refixed with effect from 1-6-1988 by increasing the sum total of basic pension and related dearness allowance at 608 points by 50%.
6. The Pension Pay Officer/Treasury Officers/Sub-Treasury Officers are requested to revise the pension/family pension as ordered in paragraph 5 above. In the case of pensioners who have died, the life time arrears shall be paid to the legal heirs. For this purpose, the legal heirs shall apply through proper channel for revision of pension along with death certificate and relevant documents.
14. A reading of the above Government Order and the Rules would clearly indicate as to who are all the persons who are entitled for pension/ family pension. It is the case of the petitioner that his father worked as a Metal Work Department Teacher and retired on 30.06.1953. He was sanctioned with pension and he lived upto 17.06.1980. Petitioner''s mother pre-deceased her husband on 23.10.1961. The petitioner being the legal heir of the deceased Government Servant has applied to the competent authority for payment of life time arrears as contemplated in the above referred to Government Order. However, the respondents took a stand that petitioner retired on 30.06.1953 and died on 17.06.1980, much prior to the crucial date namely 01.06.1988, the date specified in the said Government Order. When the Government Order contemplates very specifically that it shall be applicable to pensioners/family pensioners and those who retired/died after 01.06.1960 till 31.05.1988 are entitled for the benefit and their legal heirs can claim the benefit through proper channel, it is not for the respondent to deny the same in the impugned order. The Government Order as well as the Rule cannot be interpreted by the respondents in a different manner as if the petitioner''s father has retired before the crucial date. The impugned order makes it very clear that, " Late. I. Kanagasabapathi Naicker holder of P.P.O. No: A 38364 died on 17.06.1980 and his wife had predeceased him, his pension cannot be refixed with effect from 01.06.88 (on which date the pensioner/family pensioner was no more). Hence, the question of sanction of life time arrears as per G.O. 579 to Thiru.I.K.Kanniappan, son of Late.I. Kanagasabapathi Naicker/P.P.O. A38364, did not arise. The original applications along with the enclosures are returned herewith."
15. In paragraph 6 of G.O. 579 a categorical statement is made by the Government viz. "The Pension Pay Officer/ Treasury Officers/Sub-Treasury Officers are requested to revise the pension/family pension as ordered in paragraph 5 above. In the case of pensioners who have died, the life time arrears shall be paid to the legal heirs. For this purpose, the legal heirs shall apply through proper channel for revision of pension along with death certificate and relevant documents." Thus, it is clearly stated in the Government Order that the legal heirs can claim the benefits of the pensioners and that life time arrears shall be paid to them. If the policy of the Government is very clear and categoric in terms of such payment, the respondents cannot act contrary to the Government Order and the relevant rules. Petitioner claims the benefit of the pensioner as his legal heir. It is the case of the petitioner that refixation of pensionary benefit was done as per the recommendations of the Vth Pay Commission alone and as such his father is also entitled for such re-fixation as a pensioner and thus, he is entitled to the payment of life time arrears as the legal heir of the retired pensioner. Petitioner does not claim any benefits for him. It is not as if the petitioner wanted to have some benefits for himself. He only seeks for the benefits which should have been counted for his father by way of re-fixation of his pension and that the re-fixed life time arrears are to be calculated and paid to him.
16. It is relevant here to refer to the following decisions rendered by the Hon''ble Supreme Court :
In
10. Rule 9 of the Rules empowers the President only to withhold or withdraw pension permanently or for a specified period in whole or in part or to order recovery of pecuniary loss caused to the State in whole or in part subject to minimum. The employee''s right to pension is a statutory right. The measure of deprivation therefore, must be correlative to or commensurate with the gravity of the grave misconduct or irregularity as it offends the right to assistance at the evening of his life as assured under Article 41 of the Constitution. The impugned order discloses that the President withheld on permanent basis the payment of gratuity in addition to pension. The right to gratuity is also a statutory right. The appellant was not charged with nor was given an opportunity that his gratuity would be withheld as a measure of punishment. No provision of law has been brought to our notice under which, the President is empowered to withhold gratuity as well, after his retirement as a measure of punishment. Therefore, the order to withhold the gratuity as a measure of penalty is obviously illegal and is devoid of jurisdiction.
In
4. Pension is not a bounty payable on the sweet will and the pleasure of the Government and to receive pension is a valuable right of a government servant is a well-settled legal proposition. The question in the present case, however, is not about the deprivation of the said right by the Government by an executive order but is about the constitutional validity of Rule 10(1) providing for withholding of pension or part thereof in certain cases................
7. Various State rules or regulations vest power of withholding or reduction of pension on compliance with the principles of natural justice. The question of an order withholding or reducing pension being invalid and bad in law on a legally permissible ground is one thing but to hold the rule ultra vires is another. In State of U.P. v. Brahm Datt Sharma 2 this Court observed that if the Government incurs pecuniary loss on account of misconduct or negligence of a government servant and if he retires from service before any departmental proceedings are taken against him, it is open to the State Government to initiate departmental proceedings, and if in those proceedings, he is found guilty of misconduct, negligence or any other such act or omission as a result of which the Government is put to pecuniary loss, the State Government is entitled to withhold, reduce or recover the loss suffered by it by forfeiture or reduction of pension. In State of Punjab v. K.R. Erry3 it was held that the State Government could not direct cut in pension of officers without giving a reasonable opportunity of hearing. In State of Maharashtra v. M.H. Mazumdar4 it was observed that the State Government''s power to reduce or withhold pension by taking proceedings against a government servant, even after his retirement is expressly preserved by the Rules.
17. Thus, it is clear that Pensionary benefit is not a bounty and it is a right of every Government Employee and the benefits of the Pay Commission Recommendations which are extended to the employees/pensioners/family pensioners by issuance of a Government order cannot be curtailed by the authorities. Therefore, the claim of the petitioner in this case has to be considered in the proper perspective and the respondents cannot deny such a claim, especially when the Government itself has made it clear that the life time arrears will be paid to the legal heirs of the pensioners/family pensioners. In such a case, the impugned order cannot be legally sustained and the same is liable to be quashed.
18. For the foregoing reasons and discussions, I am of the considered view that the impugned order passed by the respondents is unsustainable and accordingly, the same is quashed. Petitioner is hereby directed to re-submit his application regarding his claim within two weeks from the date of receipt of a copy of this order and the respondents are in turn directed to consider the petitioner''s application in the light of the Government Order and extend such a benefit to the petitioner, after scrutinising the application and pass appropriate orders within a period of six weeks from the date of receipt of the application. The writ petition stands allowed with the above directions. There shall be no orders as to the costs.
