IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.02.2008 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.5624 of 2006 B.Radhunath Singh ... Petitioner Vs. 1.The Commissioner, Corporation of Chennai, 'Ripon Buildings, Chennai-3. 2.The Accounts Officer (Pension), Pension Section, Corporation of Chennai, 'Ripon Buildings, Chennai-3. ... Respondents Writ petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Mandamus, directing the respondents to disburse all the arrears of the family pension along with the interest at the increased rates of late Smt.B.Nagendra Bai from August 1994, till her death on 07.09.1999 with immediate effect to the petitioner. For Petitioner : Mr.J.Kaseem Mohamed For Respondents : Mr.V.Bharathidasan O R D E R The petitioner has sought a Writ of Mandamus directing the respondents to disburse all the arrears of the family pension along with the interest at the increased rates of late Smt.B.Nagendra Bai from August 1994, till her death on 07.09.1999 with immediate effect to the petitioner. 2. Facts leading to the Writ Petition are as follows: Petitioner's father-in-law, late G.Balaji Singh was working as Superintendent in the Health Department of the first respondent (Corporation of Chennai). On his retirement, he received pension till his death, i.e., on 12.01.1991. Thereafter, wife of the deceased and mother-in-law of the petitioner, Srimathi B.Nagendra Bai, sole legal heir, was paid family pension of Rs.1298/- after deducting other charges. When the petitioner's mother-in-law fell sick, she was taken to her native place at Nandiyal. Thereupon, she sent a letter dated 06.09.1994, to the second respondent requesting him to credit the family pension to her personal Savings Bank Account No.1791 in the Indian Overseas Bank, Chennai Corporation, Extension Counter, Chennai-600 003, as this account was exclusively opened for the purpose of depositing family pension. 3. The petitioner has further submitted that his mother-in-law bonafidely believed that the second respondent would deposit the family pension regularly from August 1994. But to her utter shock and dismay, the same was not deposited from August 1994. Therefore, his mother-in-law repeatedly requested the second respondent to disburse the family pension due to her. Inspite of representations, the respondents never bothered to deposit the family pension regularly. She was made to run from pillar to post and she needed the amount for her medical expenses. Unable to meet out the medical expenses, she died on 07.09.1999. The position remained unchanged and the petitioner's wife, R.Jagadeeshwari Bai also died on 05.11.2002. The respondents have handled the matter in reckless manner, without proper application of mind. 4. The petitioner has further submitted that when he approached the respondents to disburse the amounts due to his mother-in-law, the second respondent by letter dated 23.07.2004, called upon him to produce the Family Pension Book and Pass Book of the Indian Overseas Bank. Immediately the petitioner had replied to the second respondent that the Family Pension Book was lost and to that effect, his wife had also lodged a police complaint on 26.08.1993 and that the same was acknowledged by the Commissioner of Police, Egmore and Inspector of Police, Rajmangalam Police Station. Thereafter, the second respondent, in his letter dated 15.02.2005, informed the petitioner that in the Service Register of his late father-in-law, G.Balaji Singh, his late mother-in-law's name alone was entered and therefore, he expressed the inability of the Corporation to disburse family pension. However, a sum of Rs.19,507/-, inclusive of interest of Rs.557/- deposited by the Corporation, was encashed by the petitioner from the Indian Overseas Bank. Once again, the second respondent insisted for production of non-existent documents in his letter dated 06.01.2006. In these circumstances, the petitioner has filed the present Writ Petition. 5. Mr.J.Kaseem Mohamed, learned counsel for the petitioner submitted that after the demise of the petitioner's father-in-law, family pension was paid to his mother-in-law. As per the law of inheritance, his wife being the daughter of the employee of the Corporation was eligible to draw family pension. Even during the life time of the petitioner's mother-in-law, amounts due to her was not deposited in the bank and after her demise, whatever amounts due and payable to her towards family pension ought to have been disbursed to the petitioner, as he is the only surviving legal heir. As the petitioner's wife also died, due to the recalcitrant attitude of the respondents, denial of the family pension to the petitioner is illegal and therefore, the respondents should be directed to disburse all the arrears of family pension with interest from August 1994 till her death on 07.09.1999. 6. Mr.V.Bharathidasan, learned counsel for the respondents submitted that the Tamil Nadu Pension Rules, 1978 are applicable to the employees of the Chennai Corporation. Referring to Rule 49 (6)(iii) of the above said Rules, he submitted that after the death of the Government servant, the daughter alone is eligible for family pension, till she gets married nor he can seek disbursement of arrears of family pension, if any and that son-in-law has no statutory right to claim family pension. Referring to Rule 76 of the above said Rules, he stated that, in so far as sanction of family pension and residuary gratuity, payable in respect of the deceased pensioner are concerned, either widow or widower or children are entitled to the family pension and that the Pension Rules, do not authorise son-in-law to claim family pension. Hence, he prayed for dismissal of the writ petition. 7.Heard the learned counsel for the parties and perused the material available on record. 8.Applicability of Tamil Nadu Pension Rules 1978 to the employees of the Chennai Corporation is admitted by parties to the lis. As per Clause (i) of Sub-Rule(5) of Rule 49, of the Tamil Nadu Pension Rules, the daughter of an employee or Government Servant shall be eligible for family pension until she attains the age of 25 years or until she get married, whichever is earlier. The entitlement of the daughter of the deceased Government Servant to receive family pension ceases the moment she gets married. Chapter IX of the rules deals with the Sanction of family pension and residuary gratuity in respect of the deceased pensioners. As per rule 76, where the Head of Office has received an intimation regarding the death of a retired government Servant, who was in receipt of pension, he shall ascertain whether any family pension or residuary gratuity or both is or are payable in respect of the deceased pensioner. If the deceased pensioner is survived by widow or widower, who is eligible for the grant of contributory family pension under Rule 49, the amount of contributory family pension as indicated in the Pension Payment Order shall become payable to widow or widower, as the case may be from the day following the date of death of the petitioner. On receipt of the application from the widow or widower, as the case may be, the Treasury Officer from whom the deceased pensioner was drawing his or her pension shall authorise the payment of contributory family pension to the widow or widower, as the case may be. Where the deceased pensioner is survived by child or children, the guardian of the child or children may submit a claim in Form 14 to the Head of Office for the payment of contributory family pension, provided that the guardian shall not be required to submit a claim in the said Form on behalf of the unmarried daughter if she attained the age of eighteen years and such daughter may herself submit a claim in the said Form. On receipt of the claim from guardian, the Head of Office shall sanction the contributory family pension in Form 20. Where the widow or widower in receipt of the contributory family pension remarries and has at the time of remarriage, a child or children from the former spouse who is or are eligible for contributory family pension, remarried individual shall be eligible to draw the contributory family pension on behalf of such child or children if such individual continues to be the guardian of such child or children. 9.Reading of the above rules makes it abundantly clear that payment of pension or residuary gratuity is restricted only to the widow/widower, child or children and not extended to son-in-law of the deceased Government Servant. 10.In Smt.Violet Issac and Others V. Union of India and others reported in (1991) 1 SCC 725, on the death of the railway servant, the dispute arose between Mrs Violet Issac, widow of the deceased Railway employee, his sons, daughters and Elic Alfred brother of the deceased regarding family pension, gratuity and other emoluments, payable by the railways Administration. Smt Violet Issac, widow of the deceased railway employee made an application before the competent Railway authority for grant of family pension, gratuity and other amounts due to herself, her four sons and daughter. The Railway authorities did not pay any amount to the appellants therein as there was an injunction order obtained by Elic Alfred, brother of the employee, restraining the widow of the railway employee and her children from claiming or receiving any amount which were due to the deceased employee. As the relationship between the deceased railway employee and his widow and the children was not cordial, the deceased employee had nominated his brother and further executed a Will bequeathing all his properties to him including the family pension, gratuity, etc. In the suit, the brother of the deceased pleaded that in view of the Will executed in his favour, the widow and children were not entitled to any benefit from the Railway Administration. On the rejection of the application, widow and her children, moved before the Central Administrative Tribunal, Chandigarh for a direction to release the amounts towards gratuity, group insurance, provident fund and family pension, etc. The suit pending before the Civil Court was also transferred to the Tribunals file. The Tribunal on consideration of the materials available on record, held that since the dispute between the rival claimants was based on title arising out of relationship on the one hand and the other from a Will, it has no jurisdiction to decide the same. The Tribunal further directed for the transfer of the Original Application filed by the widow and others to the Civil Court for joint trial in accordance with law. 11.Aggrieved by the order of the tribunal, the widow and her children filed a Civil Appeal before the Supreme Court. Restricting the relief to the question of payment of family pension and after considering the provisions of Family Pension Rules, 1964, which provide, that family pension shall be granted to 1)Widow/Widower of a railway Servant 2)Where there is a widow/widower to the minor children of the railway Servant 3)son of the deceased until he attains the age of 25 years; and 4)an unmarried daughter until she attains the age of 25 years or until she gets married whichever is earlier, the Supreme Court, following the judgment in Jodh Singh V. Union of India, reported in (1980) 4 SCC 306, held at paragraphs 4 and 6 as follows:- The Family Pension Scheme under the Rules is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee. The Rules do not provide for any nomination with regard to family pension, instead the Rules designate the persons who are entitled to receive the family pension. Thus, no other person except those designated under the Rules are entitled to receive family pension. The employee has no title nor any control over the family pension as he is not required to make any contribution to it. The family pension scheme is in the nature of a welfare scheme. Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary disposition. Accordingly, in the present case the widow of the deceased Railway employee is entitled to receive the family pension, notwithstanding the will alleged to have been executed by the deceased. 12.Pension is a retirement benefit, granted under the relevant rules on superannuation, and payable to the employee, during his life time. Family pension is given to the widow/widower or other designated person under the Pension Rules. Excepting the designated persons, who are eligible to receive family pension, under the Rules, no other person can make any claim. The deceased employee has no title or control over the family pension and it does not form part of his estate. Family pension cannot be passed on to any other person by way of testamentary disposition or succession. Having regard to the fact that Tamil Nadu Pension Rules are applicable to the employees of the Corporation, and the rules specifically exclude son-in-law from the zone of eligibility, the petitioner has no statutory right to claim family pension on the demise of his mother-in-law or his wife on the grounds of inheritance. It is also pertinent to note that as per the Pension rules, daughter of the deceased employee ceases to receive family pension, the moment she attains the age of 25 years or gets married, whichever is earlier. Therefore even the petitioners wife cannot seek for family pension. In these circumstances, the relief prayed for by the petitioner is misconceived and hence the writ petition is not maintainable. 26.02.2008 Index: yes skm After the pronouncement of the order in the Writ Petition on 26.02.2008, learned counsel for the petitioner submitted that there are certain case laws which he wanted to place before this court. Though the petitioner did not cite any case laws on the earlier occasions, to give him an opportunity, the matter was listed again. Learned counsel for the petitioner submitted that in pension is a valuable right of a government servant and does not depend upon the sweet will of the government and in this context, he relied on the following decisions: 1)Punjab State Electricity Board and others .. vs.. Ram Rakhi reported in 2000 (6) SCC 560. 2)S.K.Mastan Bee ..vs.. General Manager, South Central Railway and another reported in 2003 (1) SCC 184. 3)State of West Bengal ..vs.. Haresh C.Banerjee and others reported in 2006(7) SCC 651. 2. In Punjab State Electricity Board case, sister of the widow made a claim for pension. The objection of the Board was that she was not a member of the family as per new pension rules which came into force in 1964, under which only the spouse and children of the deceased employee will constitute members of the family. In addition to that it was also contended that even if the sister of the deceased employee was treated as a member of the family under the old rules, in which, an unmarried or widowed sister was included in the definition of family, still she had to fulfil other conditions arising under the other relevant provisions of the rules and since those conditions having not been fulfilled, the Courts below were not justified in passing the decree of family pension. The Supreme Court upheld the views of the courts below that the widowed sister does become a member of the family, who could claim pension under the old rules. However, the Supreme Court held that the widowed sister is received pension and that she has to prove that there was no nomination made by the deceased and that she was one of the dependants of the deceased. The said judgment is not applicable to the facts of this case, as son-in-law has not at all been included as one of designated persons as per the pension rules applicable to the employees of the corporation of Chennai. 3. In S.K.Mastan Bee's case, the Supreme Court considered the case of an illiterate widow with meagre resources. Being unaware of her right to family pension, she approached the authorities with considerable delay. Her claim was rejected. While declaring that right to receive family pension is a right guaranteed under the constitution, their lordships observed that, a duty is cast on the employer to pay family pension, without being demanded and therefore, directed the Railway Authorities to disburse the same without delay. 4. In the decision reported in State of West Bengal ..vs.. Haresh C.Banerjee and others reported in (2006) 7 SCC 651, the Supreme Court reiterated the principle of law that right to receive family pension is a valuable right of the government servant which is not depend upon the sweet will of the government. There is absolutely no quarrel over the proposition of law that pension is not a bounty or the privilege of the Government and ought to receive pension is a valuable right of the government servant. But in the case on hand, as the petitioner is the son-in-law of the deceased not falling within the designated persons to claim pension, the said judgments are not applicable to the facts of the case. K.MANIKUMAR, J, skm 5. In view of the above, the decision made on 26.02.2008 is confirmed. 03.03.2008 Mra /ssm To 1.The Commissioner, Corporation of Chennai, 'Ripon Buildings, Chennai-3. 2.The Accounts Officer (Pension), Pension Section, Corporation of Chennai, 'Ripon Buildings, Chennai-3. W.P.No.5624 of 2006