IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.06.2009 Coram: THE HONOURABLE Mr.JUSTICE R.SUDHAKAR W.P.No.482 of 2008 Tmt.Neela ... Petitioner Vs. The Secretary to Government, Transport Department, Secretariat, Chennai – 9. ... Respondent Writ petition is filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus, calling for the records, relating to the G.O.Ms.No.110, Transport Department, dated 06.06.2002 and to quash the same conditions in para-10 as arbitrary and illegal and to direct the respondent to pay family pension to the petitioner with effect from 28.10.1994 the date following the date of death of petitioner's husband. For Petitioner : Mr.AR.L.Sundaresan, Senior counsel for Mr.M.A.R.Pragash. For Respondent : Mr.L.S.M.Hasan Fizal, Government Advocate. - - - - - O R D E R This Writ petition is filed praying to issue a writ of certiorarified mandamus, calling for the records, relating to the G.O.Ms.No.110, Transport Department, dated 06.06.2002 and to quash the conditions in para-10 as arbitrary and illegal and to direct the respondent to pay family pension to the petitioner with effect from 28.10.1994 the date following the date of death of petitioner's husband V.P.Kannan. 2. The brief facts for disposal of this case are as follows:- https://hcservices.ecourts.gov.in/hcservices/ Prior to 1972, the Public Transport Service was run by the State Transport Department. In the year 1975, the Government constituted different Transport Corporations and the employees working in the Transport Department were asked to exercise their option to work either with the Transport Department or to get absorbed in the newly created Transport Corporations. The employees were assured of the service benefits, which includes the terminal benefits, pension and gratuity etc., as they were enjoying in the Government service. After the formation of the Transport Corporations in the year 1975, G.O.Ms.No.1028, Transport Department, dated 23.09.1985 was issued ordering permanent absorption of the Government servant, determining the manner in which the terminal benefits are to be settled taking into consideration the earlier G.O.Ms.No.378, Finance (FR.II) Department, dated 18.04.1975. 3. In the G.O.Ms.No.1028, Transport Department, dated 23.09.1985, it is stated that the employees of the Government Department, who have been permanently absorbed to the various Transport Corporations, are entitled to pension and gratuity taking into consideration the service rendered by them in the Government. However, in paragraph No.6 of the G.O.Ms.No.1028 which deals with family pension, it is stated as follows:- "6.FAMILY PENSION i) Since the optee for permanent absorption in State Transport Undertakings will cease to be a Government servant and the Government liability for Family Pension will cease. The erstwhile Tamil Nadu State Transport Department employees absorbed permanently in the State Transport Undertakings should be allowed pension increase also in their pension besides Dearness Allowance, Additional Dearness Allowance as applicable from time to time to Government pensioners who retired on that date as per the orders issued in the third letter read above." 4. A similar G.O. was passed in G.O.Ms.No.1921, dated 08.11.1983 with regard to employees of the Tamil Nadu Dairy Development Corporation and was challenged before the State Administrative Tribunal. In that G.O. also, the family pension was denied. The Tribunal set aside the Government Order and directed the Government to re-look into the matter afresh. The said decision of the Administrative Tribunal was taken up by way of an appeal before the Hon'ble Supreme Court in the case of State of Tamil Nadu and others - Vs. - V.S.Balakrishnan and others reported in 1994 Supplementary(3) SCC 204 where it has been held as follows:- https://hcservices.ecourts.gov.in/hcservices/ "We may now examine the terminal benefits offered in G.O.1921. We have already enumerated in detail the said benefits in earlier part of the Judgment. We are of the view that except the provisions regarding family pension and application of Future Liberalized Pension Rules [item 3(c) and 3(f) of G.O.1921] all other provisions of the said G.O. are reasonable and no fault can be found therewith. We are of the view that once an optee for permanent absorption in the Federation is entitled to pro rata pension in respect of the period of service rendered by him under the Government, he is also entitled to the benefit of the family pension (vide para 14 of the judgment)." 5. Following the ratio of the Hon'ble Apex Court's decision, the Tamil Nadu State Transport Corporation Retired Employees Association filed a petition in W.P.No.21204 of 1992 and a learned Single Judge of this Court on 07.03.2001 issued a mandamus directing the Government to grant family pension under the existing Pension Rules to the families of the members of the petitioner Association holding that they are Government employees and have been permanently absorbed in the various Transport Corporations. It further directed that the services rendered by them with the Government should also be considered for service benefits. Following the said decision, G.O.Ms.No.110, Transport Department, dated 06.06.2002 has been issued. Paragraph Nos.5, 6, 8, 9, 10 and 11 of the G.O.Ms.No.110, Transport Department, reads as follows:- "5. The Government after careful consideration have decided to implement the orders of High Court, Madras, dated 07.03.2001 in W.P.No.21204 of 1992. The Government accordingly direct that the Family pension under the existing pension Rules be granted to the families of the eligible members of the Tamil Nadu State Transport and Transport Corporations Retired Employees Association who were Government employees and who had been permanently absorbed in the various Transport Corporations in respect of the services rendered by them under the Government. The list of members of the petitioners Association is shown in the annexure to this order." "6. The Government also direct that the eligible family pensioners are entitled to https://hcservices.ecourts.gov.in/hcservices/ Family Pension and D.A. as applicable from time to time to Government pensioners as per the existing pension rules." "8. The Family Pension proposals in the prescribed format under the Tamil Nadu Pension Rules in respect of eligible members shall be finalised by the Managing Directors of the respective Transport Corporations immediately and forwarded to the Under Secretary to Government, Transport Department, Secretariat, Chennai-9 for sanction and transmission to the Accountant General for admittance and issue of authorisation for payment." "9. The Accountant General is requested to admit the Family Pension proposals received from the Under Secretary to Government, Transport Department and the family pension amount may be arranged to be authorised for payment to the individuals concerned through Treasuries concerned." "10. This order shall take effect from 07.03.2001, the date of the Judgement of the High Court, Madras (OR) the date of the death of the eligible pensioner whichever is later." (emphasis supplied) "11. This order issues with the concurrence of Finance Department vide its U.O.No.38/JD(H)/ 2002 dated 04.06.2002." 6. Consequent to this G.O.Ms.No.110 dated 6.6.2002, the present writ petition has been filed by the widow of the deceased employee stating that the pensioner/breadwinner died prior to 07.03.2001, leaving the petitioner as his legal heir and she is entitled to family pension consequent to the death of the pensioner according to the Tamil Nadu Pension Rules, 1978. In the Tamil Nadu Pension Rules, 1978, in Chapter IX Rule 76, it reads as follows:- "76. Sanction of family pension and residuary gratuity on the death of a pensioner.- (1) 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: https://hcservices.ecourts.gov.in/hcservices/ Provided that the Head of Office may, when he considers it necessary so to do consult the Audit Officer. (2)(a)(i) If the deceased pensioner is survived by a widow or widower who is eligible for the grant of 1[....] family pension under Rule 49, the amount of 1[....] family pension as indicated in the Pension Payment Order shall become payable to the widow or widower, as the case may be, from the day following the date of death of the pensioner. .......... " (emphasis supplied) 7. It is the case of the petitioner that while the order of the learned single Judge directed the Government to grant family pension under the existing pension Rules, on the death of the pensioner, the Government has arbitrarily fixed a cut-off date as 07.03.2001. The further case of the petitioner is that she is entitled to family pension immediately on the death of the pensioner, which date is prior to 07.03.2001. The reason according to the Government is that the order of the learned Single Judge is dated 07.03.2001. No reason has been given in the Government Order as to why the effective date is taken as 07.03.2001 or the date of the death of the pensioner whichever is later. It is not a new pension scheme to fix a particular date. The petitioner's claim for family pension starts immediately on the death of the pensioner and that right is as per the Tamil Nadu Pension Rules and affirmed by this Court and the Hon'ble Apex Court in the decision cited above. On this premise, this writ petition is canvassed. 8. The learned Government Advocate stated that the Government has implemented the order of the learned Single Judge and therefore, clause-10 has been introduced as above and the effective date is 7.3.2001. He relied upon a decision of this Court in W.P.No.35643 of 2007 dated 12.01.2009 and stated that the Government Order with regard to all conditions have been upheld by this court. Further, the Government is entitled to fix the date from the date of the decision granting the benefit of family pension. It cannot be said to be arbitrary or unreasonable. 9. The petitioner is the widow of the deceased pensioner. It is not in dispute that the deceased employee was receiving pension as a Government employee and employee of the Transport Corporation. Pursuant to the order of the learned Single Judge in W.P.No.21204 of 1992 dated 07.03.2001, the Government accepted the plea for grant of family pension under the Tamil Nadu Pension Rules, 1978. Under Rule 76, which has been extracted above, on the death of the pensioner, https://hcservices.ecourts.gov.in/hcservices/ the family pension is payable to the widow or the widower or the eligible legal heirs as provided under the above said Rule and that fact cannot be and is not disputed by the respondent. 10. The only point in issue is whether the effective date for the purpose of granting the family pension will be 07.03.2001 or the date of the death of the eligible pensioner whichever is later?. 11. The pensioner in this case died prior to 07.03.2001 and therefore, the petitioner is entitled to get family pension in terms of Rule 76 of the Tamil Nadu Pension Rules and in accordance with the G.O.Ms.No.110, Transport Department, dated 06.06.2002. However, in the Government Order, no reason has been given as to why effective date has been taken as 07.03.2001. Under Rule 76 of the Tamil Nadu Pension Rules, 1978, the family pension comes into operation on the death of the pensioner. That being the position, when the Rule itself provides for family pension on the death of the retired employee, the Government cannot fix another cut-off date viz., 07.03.2001. The decision of the learned Single Judge rendered on 07.03.2001 gives the family members viz., widow or widower, as is the case, an entitlement to get family pension under The Tamil Nadu Pension Rules, 1978. The date of the decision cannot be taken as cut-off date as the petitioner will lose her valuable claim for family pension till the cut-off date (i.e.) 7.3.2001 even though the pensioner died earlier. This will be contrary to Rule 76 of the Tamil Nadu Pension Rules, 1978. No reason is stated as to why the date is fixed as 7.3.2001. It is contrary to the Tamil Nadu Pension Rules, 1978. As per the ruling of the courts cited earlier, if pension is an entitlement based on the service, family pension also accrues and cannot be denied. In this case, family pension is granted, but the date is fixed based on the decision of court. This cannot be accepted because the decision of the court in this case confers the right to family pension. The family pension is governed by Rules and the Government cannot fix another date contrary to the Rules. Hence, para 10 of the Government Order No.110, Transport Department, dated 6.6.2002, is held to be contrary to the provisions of Tamil Nadu Pension Rules, 1978, in particular, Rule 76. 12. In such view of the matter, clause-10 of the G.O.Ms.No.110, Transport Department, dated 06.06.2002 in so far as it fixes the effective date as 07.03.2001 is set aside. The petitioner in this case will be entitled to family pension under the Tamil Nadu Pension Rules, 1978, from the date following the date of death of the pensioner/employee, viz., 28.10.1994 and not from the date as specified in para 10 of the G.O.Ms.No.110 Transport Department dated 6.6.2002. If any application is required, petitioner shall submit the same within four weeks from the date of receipt of a copy of this order. Thereafter, the respondent shall pass appropriate orders https://hcservices.ecourts.gov.in/hcservices/ in terms of the order of this court for family pension within a period of four weeks from the date of such application. This writ petition is allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar jrl/ts To The Secretary to Government, Transport Department, Secretariat, Chennai – 9. +1cc to Govt. Pleader SR 25779 +1cc to Mr.M.A.R.Pragash,Advocate Sr 26198 PKB(CO) km/30.7. W.P.No.482 of 2008 https://hcservices.ecourts.gov.in/hcservices/