IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 7-7-2008 Coram The Honourable Mr.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.11754 of 2008 M.P.Nos.1 and 2 of 2008 N. Shivakumar rep. by his guardian N.Vijayalakshmi ... Petitioner Vs. The Branch Officer, Office of the Accountant General (A&E), No.361, Anna Salai, Teynampet, Chennai - 600 018. ... Respondents PRAYER: Writ petition filed under Article 226 of Constitution of India, praying this Court to issue a Writ of certiorarified mandamus calling for the records of the respondent having reference Pen.26/I/FA-5285109/FA.525627/FA.525743 /FC.510888, dated 2.3.2007 and quash the same and direct the respondent to sanction the family pension to the petitioner's guardian duly appointed by an order dated 28.6.2005 in O.P.No.331 of 2005 by this Court. For Petitioner : Ms.C.Uma For Respondent : Mr.V.Vijayashankar O R D E R Mr.Vijayashankar, learned standing counsel takes notice for the respondent. By consent of both sides, the writ petition is taken up for final disposal. 2. Prayer in this Writ Petition is to quash the order dated 2.3.2007 and direct the respondent to sanction family pension to the petitioner's guardian, duly appointed by this Court by order dated 28.6.2005 in O.P.No.331 of 2005. https://hcservices.ecourts.gov.in/hcservices/ 3. The case of the petitioner is that the petitioner's father R.Natarajan was working as technician in King Institute, Chenai and he retired from service on 30.6.1989 and he was sanctioned with pension. Petitioner's mother Gnanambal expired on 1.10.1990. Petitioner's father also expired on 5.5.1991 leaving behind his three daughters viz., N.Nagalakshmi, N. Vijayalakshmi, N.Kamakshi and the petitioner as legal heirs. At the time of death of the petitioner's father, petitioner and his sister Kamakshi were minors and other two daughters were unmarried. The legal heirs received pensionary benefits one after another. Petitioner was given pensionary benefit till 10.1.2003 i.e., until the petitioner attained the age of 21 years. Thereafter pensionary benefit was given to his sister Kamakshi. 4. Petitioner is a mentally challenged person and he attended school only upto 5th standard, after which he discontinued his studies. Petitioner was taking treatment for mental retardation since his childhood. The Doctor, who treated the petitioner, issued certificate that the petitioner is suffering from mental retardation. 5. Petitioner approached the respondent and requested to sanction family pension till his lifetime as he is a mentally retarded person, to take care of himself. For that purpose, petitioner submitted application along with the certificate dated 28.8.2003, issued by the Director of Institute of Mental Health, Chennai-10, wherein it is certified that the petitioner is suffering from moderate mental retardation with an IQ of 46 and disability of 64%. 6. The respondent by the impugned order dated 2.3.2007 informed the petitioner that as per the medical certificate issued by the Institute of Medical Health, Chennai, petitioner was registered as an outpatient on 28.7.2003 and therefore petitioner is suffering from mental retardation only after completion of 25 years of age and by that time eligibility of the petitioner to get family pension is ceased. The said order is challenged in this writ petition on the ground that a mentally retarded person is entitled to get family pension even after he attains the age of 25 as per Rule 49(6) of the Tamil Nadu Pension Rules, 1978, and the petitioner also produced the certificates evidencing treatment for mentally retardation dated 13.2.1997. On the basis of the above certificate and the averments made in the affidavit as well as the order passed by this Court in O.P.No.331 of 2005 dated 28.65.2005, https://hcservices.ecourts.gov.in/hcservices/ appointing the petitioner's sister as guardian by declaring the petitioner as mentally retarded person, the petitioner has filed this writ petition with the above prayer. 7. Respondent has filed counter affidavit contending that the family pension is not admissible in respect of cases where such disability/handicap is manifested after a person attains the age of 25 years. It is also stated in the counter affidavit that after the death of the petitioner's father, petitioner was sanctioned with family pension while he was minor and at that time, no guardian was appointed and therefore the petitioner suffered mental retardation only after he became major. Same is the reason stated in the impugned order. 8. From the perusal of the documents filed in this writ petition, particularly from the prescription dated 13.2.1997, it is clear that the petitioner was given treatment for mental retardation and at that time petitioner had not completed 21 years of age. The Institute of Mental Health, Chennai-10, issued certificate on 28.8.2003 which reads as follows: "Ref.No.OP.2403/W4/2003 Institute of Mental Health, Chennai-10. Dated: 28-8-2003 CERTIFICATE This is to certify that Thiru N.Sivakumar, aged 25 years, male, S/o.Late R.Natarajan, was registered to the Out Patient Department of Institute of Mental Health, Chennai-10, on 28.7.2003. His O.P.No.is 2403/03. His identification marks are: 1) A 1" cm long scar on centre of forehead close to hair land. 2) A black mole on Rt. Palm. He is suffering from moderate mental retardation with an IQ of 46 and disability is 64%. https://hcservices.ecourts.gov.in/hcservices/ This certificate is issued for the purpose of getting benefits, if any. Sd/- xxxxxxxxx DIRECTOR" 9. Taking note of the disability of the petitioner, this Court in O.P.No.331 of 2005 appointed the petitioner's sister viz., N.Vijayalakshmi, as guardian of the person and property of the petitioner holding that the petitioner is mentally retarded person. The guardian appointed to look after the petitioner and his property was permitted to receive the family pension from the office of the Accountant General, Tamil Nadu, on behalf of the petitioner, the mentally retarded person. 10. In the light of the above documentary evidence available and having regard to the fact that the competent authority viz., the Institute of Mental Health, Chennai-10, issued disability certificate certifying that the petitioner is having 64% disability, I am of the view that the respondent is not justified in denying the eligible family pension to the petitioner by stating the hyper technical reason that the petitioner while he was minor was sanctioned pension and no guardian was appointed at that time. The scheme itself provides for sanction of family pension to the persons, who are suffering from any mental disorder or disability of mind even after attaining the age of 25 years, petitioner is definitely entitled to get family pension. 11. In view of the above finding, the writ petition is allowed and the impugned order dated 2.3.2007 is set aside. Respondent is directed to sanction the eligible family pension to the guardian of the petitioner viz., N.Vijayalakshmi, who was appointed as guardian of the petitioner by this Court by order dated 28.6.2005 in O.P.No.331 of 2005, within four weeks from the date of receipt of copy of this order. The arrears payable to the petitioner is directed to be calculated and paid within six weeks https://hcservices.ecourts.gov.in/hcservices/ from the date of receipt of copy of this order. No costs. Connected miscellaneous petitions are closed. Vr Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To The Branch Officer, Office of the Accountant General (A&E), No.361, Anna Salai, Teynampet, Chennai - 600 018. 1 cc to Ms.C.Uma, Advocate, SR.35324 1 cc to Mr.V.Vijayashankar, Advocate, SR.35197 ntk (co) dv/16.7. W.P.No.11754 of 2008 https://hcservices.ecourts.gov.in/hcservices/