The writ petition was originally filed by Dhanapakiyam, wife of late A.Ayyaru, who was a Member of the Legislative Assembly during 1952-1957 from Jayamkonda Chozhapuram constituency in Arialur District. In respect of his death which took place on 6.2.1964, the original writ petitioner has filed the writ petition challenging the order of the first respondent dated 9.5.2008, under which the original writ petitioner has been given monthly pension from 1.4.2007 at the rate of Rs.3,000/-. It is not in dispute that the said monthly pension from 1.4.2007 has been paid to her. Subsequently, it is stated that on 17.9.2008, the original writ petitioner passed away and A.Dhakshinamoorthy son of late A.Ayyaru, Ex.M.L.A. has been substituted as the petitioner.
2. It is seen that the original writ petitioner has represented to the first respondent on 12.12.2007 to pay her family pension as per the Pension Scheme for Members of Legislative Assembly. She has also enclosed necessary certificates including legal heirship certificate and death certificate of the deceased Member of Legislative Assembly, No Objection Certificate from her son, A.Dhakshinamoorthy, who is the present petitioner. The grievance of the present petitioner is that his mother was entitled for family pension from the date when the Pension Rules for Members of Tamil Nadu Legislative Assembly came into existence in 1977 and therefore, the granting of pension from 1.4.2007 is not proper. It is also the contention of the learned counsel for the petitioner that fixing of cut-off date as 1.4.2007 has no reasonable nexus to the object sought to be achieved.
3. In the counter affidavit filed by the first respondent, while the fact of the death of original petitioner's husband is not in dispute, it is stated that the first respondent has sanctioned family pension to the original petitioner at the rate of Rs.3,000/- per month with effect from 1.4.2007. According to the first respondent, the concept of pension for former M.L.As. and M.L.Cs. was introduced from 9.12.1975 under section 12B of the Tamil Nadu Payment of Salaries Act, 1951 and the Tamil Nadu Legislators' Pension Rules, 1977 were framed. Based on the announcement made by the Hon'ble Chief Minister on the Floor of the House on 14.5.1999 that families of Ex. legislators would be sanctioned 50% of pension amount as family pension, the Tamil Nadu Payment of Salaries Act, 1951 was amended by Act 41 of 1999 which came into effect from 1.4.1999. Consequently, Tamil Nadu Legislators Pension Rules, 1977 was also amended by introducing Rule 9A. As per the said Rule, family pension is granted to former members who expired on or after 1.4.1999. Thereafter, on representation for extending the family pension in respect of legislators who died before 1.4.1999, based on the announcement made by the Hon'ble Finance Minister on the Floor of the House on 9.5.2007 stating that in respect of any person entitled to pension died on or after 1.4.1999, family of such member shall be entitled to receive family pension of Rs.3,000/- per month. Accordingly, the Tamil Nadu Payment of Salaries Act, 1951 was amended by Amendment Act, 31/07 and that was given effect from 1.4.2007. It is also denied that the original petitioner was entitled for arrears of family pension from 1977. It is also stated that family pension has not been given to family members of any person prior to 1.4.1999 and the same has been prospective from 1.4.1999. According to the first respondent in the counter affidavit, the original petitioner being the wife of the Legislator who died prior to 1.4.1999, she is eligible for family pension only with effect from 1.4.2007. It is also stated that it is the policy of the Government which cannot be questioned.
4. Tamil Nadu Payment of Salaries Act, 1951 (Tamil Nadu Act 20/51) was enacted to provide salaries and allowances to Ministers, Speaker and Deputy Speaker, Parliamentary Secretaries, Leader of the Opposition, Chief Government Whip and Members of the Legislative Assembly. Section 12B of the Act provides for pension to every person who had been or is a Member of the Legislative Assembly or of the Legislative Council or of both for one term after 15th August, 1947 at the rate of Rs.7000/-. That was with effect from 1.4.2007 as per the Tamil Nadu Payment of Salaries (Amendment) Act, 2007 (Tamil Nadu Act 31/07). Originally when the pension was granted to the Members of Legislative Assembly, admittedly there was no family pension scheme in existence. It is relevant to point out that section 12B(2A) makes it very clear that such persons who are getting pension will be entitled for any increase as made by the Amendment Act and that increased pension will be effective only from the date of publication of such Amendment Act and they are not entitled for arrears of such increase.
5. The concept of family pension in respect of legislators was introduced for the first time under the Tamil Nadu Payment of Salaries (Amendment) Act, 1999 (Tamil Nadu Act 41/99). That was with effect from 1.4.1999. According to it, if any person viz., a legislator who was entitled for pension under section 12B dies, the family of such person shall be made entitled to receive pension at 50% of such pension subject to various conditions prescribed therefor. That was incorporated as section 12B(2B) with effect from 1.4.1999. Under the said provision, the term, 'family' has been defined to mean
(i)wife in the case of a male person or husband in the case of a female person;
(ii)son who has not attained the age of twenty one years and unmarried daughter who has not attained the age of twenty four years including such son and daughter adopted legally; and
(iii)father and mother in the case of unmarried person.
By applying the meaning of the term 'family' for the purpose of enablement of family pension on the death of Ex.M.L.A., Mr.Ayyaru, it was only the original writ petitioner being wife who alone was entitled for family pension since the present petitioner being the son, who has crossed the age prescribed, is admittedly not entitled to family pension.
6. Section 12B(2B)(i) under which the family of deceased ex-legislator would be getting family pension at the rate of 50% with effect from 1.4.1999 was amended by the Tamil Nadu Payment of Salaries (Amendment) Act, 2007 (Tamil Nadu Act 31/07) which came into effect from 1.4.2007 to the effect that if any person entitled to pension under the Act viz., Ex.legislator died before 1.4.1999, the family member would be entitled to receive family pension of Rs.3,000/- per month. That was introduced as section 12B(2B)(i) which came into effect from 1.4.2007. Even by that time when the amendment was introduced, the meaning of the term 'family' remained as the same as stated earlier. Therefore, it was by virtue of Tamil Nadu Payment of Salaries (Amendment) Act, 2007 (Tamil Nadu Act 31/07) which was given effect from 1.4.2007, the husband of the original petitioner having died prior to 1.4.1999, the original petitioner was granted family pension at the rate of Rs.3,000/- per month from 1.4.2007. After the above said Amendments were effected, section 12B of the Tamil Nadu Payment of Salaries Act, 1951 stands as on date as follows:
"12-B Pension. (1) There shall be paid a pension of seven thousand rupees per mensem to every person who after the 15th day of August 1947, had been or is a Member of the Legislative Assembly or of the Legislative Council or of both, for one term.-
Explanation. For the purpose of this sub-section,
(a) a Member of the Legislative Assembly shall include a Member of the Legislative Assembly of the former State of Travancore Cochin, representing any territory which after the 1st day of November 1956 forms part of the State of Tamil Nadu;
(b) a Member of the Legislative Assembly or of the Legislative Council shall include a Member of the Legislative Assembly or of the Legislative Council of the State of Andhra Pradesh, representing any territory which after the 1st day of April 1960 forms part of the State of Tamil Nadu;
Proviso - Omitted Provided further that where any person has served either as a Member of the Legislative Assembly or as a Member of the Legislative Council or of both for a period less than one year, there shall be paid to him a pension of four thousand rupees per mensem:
Provided also that no pension under this sub-section shall be paid to any person,
(a) who is in receipt of pension from any other State for having been a Member of the Legislative Assembly or of the Legislative Council of such State;
(b) who was a Member of the Legislative Assembly or of the Legislative Council of the former State of Madras representing any territory which ceased to form part of the State of Tamil Nadu.
(c) who ceases to be a citizen of India or who has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State.
(1-A) Where any person entitled to pension under sub-section (1) is also entitled to pension for having been a Member of Parliament, such person shall be entitled to receive the pension under sub-section (1) in addition to such pension to which he is entitled for having been a Member of Parliament.
(2) (i) If any person who has been paid any pension under this Act as in force before the date of publication of the Tamil Nadu Payment of Salaries (Amendment) Act,1980 in the Tamil Nadu Government Gazette, becomes entitled to increase in the amount of pension so paid by virtue of the said Amendment Act, the increase shall be given effect only on and from the date of such publication and he shall not be entitled to any arrears of such increase.
(ii) If any person becomes entitled to pension for the first term by virtue of this section, he shall be paid such pension only with effect on and from the date of publication of the Tamil Nadu Payment of Salaries (Amendment) Act, 1980 in the Tamil Nadu Government Gazette and he shall not be entitled to any arrears of such pension.
(2-A) If any person becomes entitled to pension for the first time or to any increase in pension by virtue of this section, as amended by the Tamil Nadu Payment of Salaries (Amendment) Act, 1982 he shall be paid such pension or such increase in pension, as the case may be, only with effect on and from the date of publication of the said Act in the Tamil Nadu Government Gazette and he shall not be entitled to any arrears of such pension.
(2-B)(i) where any person entitled to pension under this section dies, the family of such person shall be entitled to receive fifty percent of such pension subject to such conditions as may be prescribed.
(ii) If there is any increase in pension by virtue of this Section, the family refer to in clause (i) shall also be entitled to receive 50% of such increase in pension with effect from the date from which such increase in pension under this section is given effect to.
Explanation. For the purposes of this sub-section, in the case of person who is entitled to pension under this sub-section family means-
(i) wife in the case of a male person or husband in the case of a female person;
(ii) son who has not attained the age of twenty one years and unmarried daughter who has not attained the age of twenty four years including such son and daughter adopted legally;
(iii) father and mother in the case of unmarried person;
(2-BB) Where any person entitled to pension under sub-section (1) died before the 1st day of April 1999, the family of such member shall be entitled to receive a family pension of rupees three thousand per mensem.
Explanation: For the purpose of this sub-section, the word 'family' shall have the same meaning assigned to it in sub-section (2-B).
(2-C) Where, on or after the 15th day of November 1996, any Member of the Legislative Assembly dies before the expiry of the term of his office, the family of such member shall be entitled to receive a family pension of rupees two thousand and five hundred per mensem.
(2-CC) (i) Where, before the 15th day of November, 1996 any Member of the Legislative Assembly died before the expiry of term of his office, the family of such member shall be entitled to receive a family pension of rupees three thousand five hundred per mensem.
Explanation. For the purposes of this sub-section, the word family shall have the same meaning assigned to it in sub-section (2-B).
(3) The State Government may make rules providing for the conditions and restrictions subject to which such pension may be granted:
Provided that no such pension shall be paid to any person for the period during which such person was or is in receipt of any salary or any emoluments other than Travelling allowance either from any State or the Central Government or from any Company or statutory body owned or controlled by any State or the Central Government and if any such income was or is received the payment of pension shall be suspended for that period:
Provided further that
(a) no such pension shall be paid to any person for the period during which such person was or is in receipt of pension for having been a Member of any other State Legislature, or honorarium either from any State or the Central Government or from any company or statutory body owned or controlled by any State or the Central Government and if the amount of such pension, or honorarium is equal to, or in excess of, the pension to which he is entitled under sub-section(1);
(b) where the amount of such pension or honorarium is less than the pension to which he is entitled under sub-section (1), such person shall be entitled to receive only the difference as pension under that sub-section.
Explanation I. For purposes of sub-section (1) the expression one term shall mean a period of not less than one year of membership in the Legislative Assembly or in the Legislative Council or in both, whether continuous or not.
Explanation II. Omitted.
Explanation III. For purpose of this section, salary includes salary received under this Act and salary received as
(i) a Member of the Parliament or any other State Legislature.
(ii) a Minister or Deputy Minister of the Government of India or any other State.
(iii) The Chairman or Deputy Chairman of the Council of State of the Legislative Council of any other State.
(iv) The Speaker or Deputy Speaker of the House of the People or of the Legislative Assembly of any other State."
7. The contention of the learned counsel for the petitioner is that by virtue of the amendment by the Tamil Nadu Amendment Act 41 of 1999, which came into effect from 1.4.1999, the original writ petitioner's husband having died at the time when the amendment came into effect viz., 1.4.1999, she being the wife would be entitled to pension from the said date. According to him, the amendment effected under Tamil Nadu Act, 31/07 by introducing a new clause viz., (2BB) under section 12B was only an extension of the pension already granted under section (2B)(i) which came into effect from 1.4.1999. In other words, his contention is that in respect of the family of a Legislator who died by the time when the Tamil Nadu Act 41/99 came into existence on 1.4.1999, the quantum of pension was 50% which has been modified under Tamil Nadu Act 31/07 as Rs.3,000/- per month.
8. There is certainly force in the said argument of the learned counsel for the petitioner. It is not as if the Tamil Nadu Act 31/07 has superseded section 12(B)(2B)(i) which came into force from 1.4.1999 and the Amendment Act 31/07 which came into force from 1.4.2007 modifying the quantum of pension to the family is only an addition to section 12(B)(2B)(i) and it is not in derogation. In such view of the matter, the contention raised on behalf of the respondents that by applying sub-section (2) to section 12B, the original petitioner would not have been entitled for arrears has no meaning. The said section applies only in cases where there is a change in quantum of family pension effected by a subsequent amendment, the changed amount would be payable only from the date of amendment and such benefit would not be extended from the original date on which the family member was entitled to family pension. But, in the present case, the original writ petitioner was entitled for family pension at the rate of 50% of pension from 1.4.1999 and what was effected by way of Tamil Nadu Act 31/07 with effect from 1.4.2007 was only a change in the quantum viz., Rs.3,000/- per month. Therefore, there is no difficulty to conclude that merely because the first respondent has paid to the original writ petitioner the family pension at the rate of Rs.3,000/- from 1.4.2007, she would not be entitled for the benefit of sub-section (2B)(i) of section 12B of the Tamil Nadu Payment of Salaries Act, 1951, viz., 50% of pension with effect from 1.4.1999. In my considered view, in respect of the original writ petitioner, the right to receive family pension has accrued from 1.4.1999 and certainly from that date, she would be entitled for pension at 50% of pension amount upto 31.3.2007 and thereafter from 1.4.2007 at the rate of Rs.3,000/- per month which has been admittedly paid in this case.
9. The term 'family pensioner' has been defined under the Tamil Nadu Legislators' Pension Rules, 1977 in clause (cc) to mean a person who is eligible to receive family pension under sub-section (2B) of section 12B of the Act. Under the Tamil Nadu Legislators' Pension Rules, 1977, Rule 9B reads as follows:
" 9B. Sanction of family pension On receipt of the application for grant, revival or revision of family pension and on being satisfied about the eligibility of the applicant for the family pension, the Secretary shall issue an order in Form X or Form XI, for sanctioning, reviving or revising the pension as the case may be, and communicate the order to the person concerned and to the Accountant General, Chennai for purpose of audit."
10. Merely because the original writ petitioner has applied for family pension in December, 2007 it does not mean that her eligibility for pension from 1.4.1999 is not available to her. In any event, Rule 9B which enables the applicant to make application for grant of pension cannot supersede the Tamil Nadu Payment of Salaries Act, 1951, especially section 12B(2B)(i) which is a statutory enactment conferring a right on the original writ petitioner to receive pension from 1.4.1999. Therefore, the original writ petitioner would be certainly entitled to family pension from 1.4.1999 at the rate of 50% which stood modified from 1.4.2007 into Rs.3,000/- per month. Merely because the present petitioner being the son of the deceased legislator is not eligible to be treated as 'family' as per the provisions of the Act, it does not mean that as a legal heir of the original writ petitioner he is not entitled to inherit the accrued amount due to his mother. The right of family pension cannot be treated to be a right of equity by the respondents at any rate, since it is an express statutory provision which has provided the right of getting family pension.
11. In a similar situation, while deciding about freedom fighters' pension under the Madras Freedom Fighters Pension Rules, 1966, a Division Bench of this Court in Thangavelu,R. v. Government of India & another [(1994) Writ L.R. 137] held as follows:
"Having regard to the above laudable object and purpose behind the scheme it is but necessary that the appropriate Government should adopt a liberal approach in the matter of grant of pension to the real freedom fighters. When we say this, it does not mean that when a person makes a claim under the Scheme for pension, he should be granted the same as a matter of course. No doubt, the applicant should satisfy the conditions stipulated in the Scheme."
12. On the factual matrix as I have discussed earlier, viz., the amendment modifying the quantum of pension amount with effect from 1.4.2007 at the rate of Rs.3,000/- per month was made in continuation of the Tamil Nadu Act 41/99, the judgement of the Hon'ble Apex Court in State of Punjab and Ors. v. Amar Nath Goyal and Ors. [2005(6) Supreme 469] holding that the decision of the Government to limit the benefits only to employees who retired on or after a particular date is not irrational, is not applicable to the facts herein. In the present case, the eligibility has been given from 1.4.1999 and the quantum has been modified with effect from 1.4.2007. Law is well settled that any executive instructions cannot supersede or deprive of any right vested or accrued under the law. That was laid down by the Hon'ble Supreme Court in U.Raghavendra Acharya v. State of Karnataka (AIR 2006 SC 2145) as follows:
"Pension, as is well known, is not a bounty. It is treated to be a deferred salary. It is akin to right of property. It is co-related and has a nexus with the salary payable to the employees as on the date of retirement.
26. These appeals involve the question of revision of pay and consequent revision in pension and not the grant of pension for the first time. Only the modality of computing the quantum of pension was required to be determined in terms of the notification issued by the State of Karnataka. For the said purpose, Rule 296 of the Rules was made applicable. Once this rule became applicable, indisputably the computation of pensionary benefits was required to be carried out in terms thereof. The Pension Rules envisage that pension should be calculated only on the basis of the emoluments last drawn. No order, therefore, could be issued which would be contrary to or inconsistent therewith. Such emoluments were to be reckoned only in terms of the statutory rules. If the State had taken a conscious decision to extend the benefit of the UGC pay scales w.e.f. 1.1.1996, to the appellants allowing them to draw their pay and allowances in terms thereof, we fail to see any reason as to why the pensionary benefits would not be extended to them from the said date."
13. In view of the above said discussions, the impugned order of the first respondent stands modified with direction to the first respondent to grant family pension to the original writ petitioner with effect from 1.4.1999 as per section 12B(2B)(i) of the Tamil Nadu Payment of Salaries Act to be followed by sub-section (2BB) with effect from 1.4.2007 and pass appropriate orders regarding arrears payable to the original petitioner from 1.4.1999 till 31.3.2007 and such orders shall be passed expeditiously. The writ petition stands ordered accordingly by modifying the impugned order. No costs.
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1. The Secretary to Government Tamil Nadu Legislative Assembly T.A.II Section, Secretariat Fort St.George Chennai 600 009.
2. The District Collector Arialur District Arialur 621 212