N RAMASWAMY NAIDU Vs. GOVERNMENT OF TAMIL NADU

JUDGEMENT

(1.) BY consent of both the parties, the main writ petition itself is taken up for final hearing. I have heard Mr. V. Srinivasan, the learned counsel appearing for the petitioner and Mr. V.R. Rajasekaran, the learned Government Advocate for the respondents

(2.) THE petitioner has filed the above writ petition to call for the records of the 2nd respondent herein relating to his order dated 27-5-1991 and made in O.M.U. No. 24159/91/K4 and by the issue of a certiorarified Mandamus to quash the said order of the Second respondent herein and direct the respondents to grant Family Pension to the petitioner's second wife Jeeva Ammal in the event of the petitioner's death. In the writ petition, notice of motion was ordered on 3-9-1991 and the respondents are now represented by Mr. Rajasekaran, Government Advocate. It is stated in the affidavit the petitioner was entitled to the Liberalised Pension, 1960 as applicable to Government servants as per G.O.Ms. No. 512, M.A. & W.S. Department dated 23-4-1986, and he applied to the authorities and got pensionary benefits as per rules and a pension pay order No. 405 has also been issued to him. It may be seen therefrom that no mention of any family pension to his second wife has been made therein, as has been done in other cases. THE pension pay order at page 2, para 2 has to be read that in the event of the death of the petitioner, the family pension to be calculated by the office in terms of money may he paid to Tmt. R. Jeeva Ammal, the petitioner's second wife, married on 3-9-73 after retirement on 11-11-1965 F.N. As per the G.O.Ms. No. 512, M.A. & W.S. Dept., dated 23-4-86 and the Municipal Pension Rules, 1970, the Director of Municipal Administration, Madras, is the sanctioning Authority and the Examiner is the certi fying Authority as well as ?Pension Disbursing Authority?, Hence the petitioner made representation to the Examiner of Local Fund Accounts, Madras on 19-3-1991 requesting to include the name of his second wife in the pension after the petitioner's death. THE examiner of Local Fund Accounts, Madras, the second respondent herein, in this letter No. O.Mu. 24159/91-K4, dated 27-5-1991 negatived his request. It has been stated that ?as the petitioner married Tmt. Jeeva Ammal on 3-9-93 after hir retirement on 11-11-65, as already announced there is no provision in the Rules to grant her family pension. It is only for this reason it has not been mentioned about this in para 2 of the Pension Pay order?. It is stated by the petitioner that he married Krishnaveni as his first wife in 1930. Having given birth to one son and three daughters (All aged 30 years and above now, not eligible for minor pension as per rules) and she died in 1945. All children, being aged, were married and left the petitioner and the petitioner could not live alone without any help to nurse him in his old age and he had to marry Jeeva Ammal as second wife on 3-9-73 i.e.; after retirement. THE second respondent has taken objection to a sanction the grant of, family pension to the petitioner's second wife Jeeva Ammal on the ground that the petitioner married her after his retirement. That officer appears to rely on old rules and conditions, which have been set aside by the Supreme Court in their Judgment dated 29-8-89 in W.P. No. 1128/88 & 1204/88 in the writ petitions filed by two widows (Bagavath & Sharaswami) who were also married long after retirements of their husbands, THE Supreme Court in Smt. Ponnammal v. Union of India & Ors. 1 has pointed out as follows: ?Where the Government servant rendered service to compensate which a family pension scheme is devised; the widow and the dependent minors would equally be entitled to family pension as a matter of right. In fact we look upon pension not merely as a statutory right but the fulfilment of a constitutional for promise in as much as it partakes the character of public assistance in cases of unemployment old age disablement or similar other cases of under served want. Relevant rules merely make effective the constitutional mandate. That is how pension has been looked upon in D.S. Nakra Judgment?.

(3.) THE Supreme Court examined the matter and has held, ?We are of the view that the two limitations incorporated in the definition, suffer from the view of arbitrariness and discrimination and cannot be supported by nexus of reasonable classifications. THE words ?provided, the marriage took-place before retirement of the Government servant, in Cl. (i) and, but shall not include son or daughter born after retirement in Cl. (ii) are thus ultra vires of Art. 14 of the Constitution and cannot be sustained?.