IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04-02-2010 CORAM : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P. No. 6613 of 2008 Samuel Manoharan (Mentally ill Person) rep. by his guardian and next friend Mr. Emmanuvel Chakravarthy No.429, Periyar Street Kamalakshipuram Otteri, Bagayam Vellore, Vellore District .. Petitioner Versus 1. The Secretary to Government Finance (Pension) Department Fort St. George Chennai- 600 009 2. The Accountant General (Account Entitlements) Tamil Nadu No.361, Anna Salai Chennai – 600 018 3. The Assistant Elementary Educational Officer Arakkonam .. Respondents (R3 impleaded as per Order dated 04.02.2010 made in MP No. 1 of 2010 in WP No. 6613 of 2008) Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records relating to the order passed by the second respondent in No.A G (A and E)/Pen./12/II URG/40/2007 -2008/25, dated 23.11.2007 and order dated 14.01.2008 and quash the same thereby direct the second respondent to pay family pension of late. Joy Suguna Bai having P.P.O. No. A 600781 to safeguard the life of his brother Samuel Manoharan, mentally ill person. For Petitioner : Mr. A.R. Nixon For Respondents : Mr. A. Arumugam Additional Government Pleader for R1 & R3 Mr. Vijay Shankar for R2 https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioner is the guardian and next friend of Samuel Manoharan, a mentally ill person. The petitioner, who is also the brother of Samuel Manoharan, has filed the present writ petition challenging the order of the second respondent, Accountant General, Chennai dated 23.11.2007 and 14.01.2008 and after setting aside the same, seeks for a direction to pay family pension of Late.Joy Suguna Bai who is having Family Pension Payment Order No. A 600781. 2. It is seen from the record that the petitioner's mother was employed as a Teacher in a middle school and after her retirement, she was receiving pension from the respondents. Unfortunately, the mother of the petitioner passed away on 04.11.2003, leaving behind the petitioner and two others as her legal heirs. Samuel Manoharan is the second son and he was said to be suffering from mental illness for over ten years. 3. The Government has issued G.O. Ms. No.107, Finance (Pension) Department dated 07.03.2000, as per which, the dependants son, who is mentally unsound, is entitled for family pension. On the strength of the aforesaid Government Order, on behalf of the petitioner, an application was made to the educational authorities seeking family pension. By proceedings dated 05.11.2004, the Director of Elementary School Education, Chennai directed the Assistant Educational Officer, Vellore range to process the request of the petitioner for family pension and on receipt of the same, the Assistant Educational Officer, Vellore forwarded the papers to the second respondent herein. The second respondent, by his proceedings dated 10.02.2005 directed the petitioner to obtain (i) the guardianship certificate from the Court of law and (ii) certificate of mental illness from a medical officer not below the rank of Civil surgeon in the same discipline indicating the nature of illness and whether he was in a position to earn his own livelihhood. 4. Pursuant to the said proceedings dated 10.02.2005, the petitioner has filed MHOP No. 4 of 2005 before the Principal District Judge, Vellore seeking for his appointment as guardian of Samuel Manoharan in terms of Section 52 and 53 of Mental Health Act. The learned Principal District Judge, Vellore, by a judgment and decree dated 30.10.2006 appointed the petitioner as guardian of Samuel Manoharan and directed him to render proper accounts. 5. On the strength of the decree and judgment passed by the learned Principal District Judge, Vellore, the petitioner has submitted an application and requested to consider his claim for family pension. The second respondent, by his proceedings dated 18.04.2007 informed the petitioner that his request for family pension can be considered only in case of person certified by the medical board is suffering from Chronic Severe Schizophrenia and the disability should have manifested before the individual completed 25 https://hcservices.ecourts.gov.in/hcservices/ years of age and that he should not be in a position to earn his own livelihood. The petitioner was further informed by the communication dated 23.11.2007 of the second respondent that the decree was obtained by the petitioner from the learned Principal District Judge, in MHOP No. 4 of 2005 without impleading the Accountant General of Tamil Nadu as a party, besides that no positive direction was given by the Court to disburse the pension. It was also stated that there are some discrepancy in the history sheet produced by the petitioner. It was stated that the first attack was on 17.06.1988 when Samuel Manoharan was 17 years old, however, in the legal heir certificate issued by the Tahsildar, Vellore dated 27.11.2003, the age of Samuel Manoharan is mentioned as 47 years. Therefore, according to the second respondent, there are contradiction in the claim made by the petitioner and directed the petitioner to submit supporting documents, including the proof of date of birth of Samuel Manoharan. 6. The petitioner has sent a legal notice dated 06.12.2007 followed by a representation dated 24.11.2004 to the second respondent. Since nothing was forthcoming from the second respondent, the present writ petition has been filed. 7. This Court ordered notice to the respondents. When the matter came up for hearing on 10.08.2009, this Court issued the following directions:- "3. Considering the above said fact, the writ petitioner is directed to appear before the Medical Board constituted at Vellore Government Medical College, Vellore. The Medical Board is directed to examine the petitioner andsubmit the report before this Court within a period of 4 weeks after the examination of the petitioner. The medical Board is also directed to specify the possible period from which the petitioner has been suffering from mental illness as well his present state of affairs. The Medical Board is also directed to find out as to whether the petitioner is in a position to work or not." 8. Pursuant to the aforesaid directions of this Court, the Dean, Government Vellore Medical College and Hospital has sent his report along with a covering letter dated 29.11.2010. The opinion given by the Medical Board is as follows:- "Opinion: He is suffering from CHRONIC SEVERE SCHIOPHRENIA (a major mental illness) due to which he is unable to earn for his livelihood, he requires care and supervision. He is advised to continue treatment regularly." https://hcservices.ecourts.gov.in/hcservices/ 9. The second respondent has filed his counter affidavit, wherein reference was once again made to Rule 49 of Tamil Nadu Pension Rules read with clarification issued by the Government dated 30.09.2004 wherein it was stated that if the disability of any individual did not occur before attaining the age of 25 years, such person is not entitled to family pension. 10. A contention was raised that the petitioner's father expired on 26.09.1971 even before the retirement of the petitioner's mother and the petitioner's mother also expired on 04.11.2003 but it was claimed that Samuel Manoharan is 46 years old and therefore also he is not eligible for family pension in terms of Rule 49 of Tamil Nadu Pensin Rules read with the clarification issued by the Government dated 30.09.2004. 11. It must be seen that when the department forwarded the pension proposal of Samuel Manoharan, his age was indicated as 29 years, however, as per the Medical certificate, the illness commenced on 17.06.1988. It was contended that by the time when the petitoner applied for family pension, he would have crossed the age of 29 years and therefore he is not entitled for such claim. If the date 17.06.1988 was taken as the basis when Samuel Manoharan was subjected to first attack, he would not have crossed the prescribed age limit of 25 years. 12. It is true that there was some discrepancy in the claim made by the petitioner. But considering the fact that Samuel Manoharan is mentally ill and it is the definite stand of the petitioner that he is mentally ill from 17.06.1988 and at that time he was only 17 years old, the respondent, not having any other material to prove the contra, need not unnecessarily dispute the age, at which Samuel Manoharan suffered disability, as furnished by the petitioner and his family, including natural guardian. The other contention that there was no medical certificate in the prescribed format as per the provisions of Section 52 and 53 of Mental Health Act, this Court undertook the exercise of calling for a fresh medical opinion and the medical opinion, as set out above, clearly shows Samuel Manoharan was suffering from mental illness and he was not in a position to make earnings of his own. 13. Considering the over all facts and circumstances of the case, this Court is of the opinion that in the light of the medical opinion and also the fact that Samuel Manoharan was only 17 years at the time of his first attack on 17.06.1988, this Court feels that this is a fit case to direct the respondents to grant family pension to the Petitioner, as prayed for. 14. Accordingly, the writ petition is allowed. The respondents are directed to finalise the pension proposal and pass orders within a period of eight weeks from the date of receipt of a https://hcservices.ecourts.gov.in/hcservices/ copy of this order. No costs. Consequently, connected MP No. 1 of 2008 and MP No. 2 of 2010 are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rsh To 1. The Secretary to Government Finance (Pension) Department Fort St. George Chennai- 600 009 2. The Accountant General (Account Entitlements) Tamil Nadu No.361, Anna Salai Chennai – 600 018 3. The Assistant Elementary Educational Officer Arakkonam. 1 cc To The Government Pleader, SR.7326 WP No. 6613 of 2008 rj(co) pmk.5.2.2010. https://hcservices.ecourts.gov.in/hcservices/