@JUDGMENTTAG-ORDER
K. Chandru, J.@mdashThe petitioner was a widow of one K. Subraya. The late Subraya was serving as a Peon in the Taluk Office at Kasaragod which was part of composite State of Madras. He died on 18.8.1951. Since Kasaragod was earlier part of the composite state of Madras and at the time of his death, there was no scheme entitling widows of Government servants to get family pension, the petitioner was paid only compassionate gratuity of Rs. 450/- by G.O.Rt. No. 101 dated 22.2.1954.
2. Subsequently, the Government sanctioned pension for the widows of employees of the Government of Tamil Nadu as per G.O.Ms. No. 748, Finance dated 26.5.1979. This was made applicable to such Government servants who died while in service or got retired prior to 1.4.1964. By G.O.Ms. No. 163, Finance dated 18.3.1982 the said order was clarified to mean that the place of retirement of such Government servants shall be the criterion to reckon the eligibility for getting for family pension. As a result of this clarification, several persons who have lost their husbands but who had served in the areas forming part of the erstwhile composite state of Madras, became ineligible to get family pension.
3. Four of the affected widows moved the Honourable Supreme Court. The Supreme Court in those cases passed an order stating that the State of Tamil Nadu is liable to pay to the petitioners who are widows irrespective of their place of work as per notification dated 26.5.1979 with effect from 1.4.1979. The Government, to implement the said order of the Supreme Court, issued G.O.Ms. No. 455, Finance (Pension) Department dated 27.5.1985. In Paragraph 7 of the order, it was stated that the Government servants falling under Paragraph 7 of the said order, shall be entitled to family pension, as sanctioned, irrespective of the place of retirement of Government servants and arrears of family pension, shall be paid with effect from 1.4.1979.
4. The petitioner moved the Government claiming such pension. Since the respondent State did not have proper records, the Government sanctioned family pension to the petitioner only from 15.4.1994. Aggrieved by the same, the petitioner sent a representation claiming family pension from 1.4.1979. When the same was not forthcoming, she filed O.A. No. 148 of 1996 before the Tribunal for getting relief. The Tribunal, by its order dated 8.3.1996 allowed her Original Application and set aside the government''s order granting pension to the petitioner by restricting the relief only from 15.4.1994. It further directed the State Government to pass appropriate orders. Pursuant to the direction issued by the Tribunal, the respondent issued G.O.Ms. No. 420, Revenue dated 26.4.1996 sanctioned pension in respect of the petitioner with effect from 1.4.1979.
5. Thereafter, the petitioner claimed through a legal notice that she was eligible for interest for the delayed payment of pension from 1.4.1979 till 31.3.1997 and the interest was claimed at the rate of 15% p.a on the delayed payment. The petitioner, thereafter filed the present O.A. No. 5104 of 1998 before the Tribunal seeking for a direction to pay interest at the rate of 15% on the delayed payment of family pension from 1.4.1979 to 31.3.1997.
6. On notice from the Tribunal, the respondents filed a reply affidavit dated 1.3.2000. In the reply affidavit, in Paragraphs 3, 4 and 5, the following averments have been made:
3. ...on the affidavit filed by the co-pensioner before the Notary Public even though service records were not available in this case. This is clearly a concession given by the Government to the individual in the absence of service records and the first respondent....
4. ...To the notice given by her Advocate, for payment for interest on arrears of pension, the Government in their Letter No. 37185/Service.8(1)97-8, Revenue dated 6.5.98 informed him that there are no provisions in the Tamil Nadu Pension Rules for the sanction of interest for arrears of pension and accordingly the request of the pensioner could not be complied with.
5. It is submitted that the applicant has been padi the family pension as per the directions given by the Tamil Nadu Administrative Tribunal in O.A. No. 148/96. The Tamil Nadu Pension Rules do not provide for payment of interest on arrears of family pension. The relief sought for by the applicant are not entertainable as per rules and law.
7. In view of the abolition of the Tamil Nadu Administrative Tribunal, the matter stood transferred to this Court and was renumbered as W.P. No. 35013 of 2006.
8. The short question that arises for consideration is whether there was delay in payment of pension to the petitioner and if the answer is in favour of the petitioner whether the petitioner was entitled to get interest on the delayed payment of pension.
9. The stand taken by the respondents was that the pension itself was paid as a concession. Further, there are no specific rules for payment of interest in case of delayed payments.
10. With reference to the first contention that the payment of pension was a concession, it should be rejected as without basis. The Supreme Court had consistently held that pension was neither a bounty nor a grace depending upon the sweet will and pleasure of the Government and it creates a valuable right vesting in a Government servant and is a property subject to rules which are statutory in character. See:
11. The second contention regarding payment of interest question raised herein is no longer res integra. The Supreme Court vide its decision in R.K. Agarwal v. State of Rajasthan and Anr. reported in (2006) 12 Scc 746 in paragraph 8 has observed as follows:
8. ...As rightly pointed out by the appellant in Civil Appeal No. 8128 of 2004, the High Court has not considered the delay of 20 years in giving the pension and pro rata benefits. If the delay is attributable to the Government, the appellant is always entitled to the interest. We request the High Court to consider this point also with reference to the pleadings raised by the parties to this action. Since the matter is pending before one forum or the other for more than two decades.
(Emphasis added)
12. Subsequently, the Supreme Court in
14. In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well founded that he would be entitled to interest on such benefits. If there are statutory rules occupying the filed, the appellant could claim payment of interest relying on such rules. If there are administrative instructions, guidelines or norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence of statutory rules, administrative instructions or guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned Counsel for the appellant, that retiral benefits are not in the nature of "bounty" is, in our opinion, well founded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents.
(Emphasis added)
13. In the light of the above, it can be clearly established that in a given case where the delay is attributable to the respondent State even in the absence of Rules, the Court is empowered to grant a direction to pay the interest.
14. The other stand of the respondents that the pension was paid only on concession, cannot be accepted for the simple reason that the State Government itself had introduced a scheme for pension in respect of widows whose husbands have died or retired and with a view to help them to survive. Once there is a scheme introduced by the State, then the question of State showing any benevolence to any individual cannot raise. In fact, in this case, even before the petitioner came to the Court, she was paid pension, but only prospectively and the full pensions subsequently after she had moved the Tribunal.
15. In such circumstances, it is unfortunate that the State should contend that amounts were paid on concession. The Supreme Court has time and again held that the payment of pension is not bounty or concession. Therefore, both the contentions raised by the respondents had to be rejected.
16. The question is as to what should be the rate of interest to be ordered in the present case. While in the legal notice sent on behalf of the petitioner, the rate of interest claimed was at 15% p.a. in the O.A. The rate claimed was subsequently increased at 18% p.a. Considering the fact that there was enormous delay in moving the Court, it is hereby directed that the respondent State is directed to pay 9% p.a. On the delayed payment of pension.
17. Thus, the writ petition stands allowed. The respondents are directed to calculate 9% interest from 1.4.1979 to 31.3.1997 within a period of three months from the date of receipt of a copy of this order and disburse the said amount to the petitioner, without fail. No costs.
