Dual Pension in Army & from State Government Rule

This post is a case digest of a judgment by Madras High Court on the issue of Dual Pension by kin of individuals in Army who served the state government later and what is the general rule/law on the said topic; whether they can claim both or not as per settled law?

Rest, AFT Chandigarh/Chandimandir Bench lawyers Advocate can assist better for case specific advices related to Dual Pension in Government Departments.

Now, let’s have the judgment-

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Mrs. Savithri vs The Principal Accountant General on 24 February 2020

Petitioner

Mrs Savithri

Vs.

Respondent

The Principal Accountant General, (A&E)

TamilNadu

The State of Tamil Nadu,

Rep by its Principal Secretary,

I Finance Department, Fort St. George

The Director,

Treasuries and Accounts,

Panagal Maligai, Saidapet, Chennai

The Joint Director,

District Treasury, Kancheepuram District.

The Treasury Officer,

District Treasury, Kancheepuram District.

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In the present case, the petitioner’s husband was an Ex-serviceman, who was thereafter employed by the Tamil Nadu Government in the Treasury Office at Kancheepuram. He retired from the service in 1983 and received dual pensions both from the Army as well the State Government. He died on 08. 05. 1993 leaving behind his wife who is the petitioner in the present case. The petitioner requested the State Government for family pension but the same was denied. Aggrieved by the refusal the petitioner filed a writ petition before the Madras High Court. The Court by directing the respondents to sanction family pension as per the entitlement of the petitioner, disposed of the writ petition on 07. 11. 2016. While disposing of the writ petition (WP NO. 27834 of 2014) the Hon’ble High Court relied on Tamil Nadu Arasu Pokkuvarathu Madurai Thozhilalar Sangam v. Govt. Of Tamil Nadu where it was held that for the services rendered to the Transport Corporation, the widow of the pensioner and eligible wards are entitled to receive a family pension from not only the Army but also the Transport Corporation. However, the pensioner we’re eligible to get Dearness allowance for one pension only. The same was reiterated by the Hon’ble Supreme Court in Union of India v. G. Vasudevan Pillay^[1] and Haryana S.E.B v. Azad Kaur^[2].

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The petitioner, by a letter on 17. 05. 2017, was informed that necessary order will be passed to sanction the family pension to the petitioner. However, on 03.08.2017 the petitioner was informed that she is entitled to receive the family pension with effect from 02. 09. 2016. Aggrieved by the same the petitioner filed a writ petition under Article 226 of the Indian Constitution before the Madras High Court praying to issue a writ of Certiorari Mandamus and quash the impugned letters of the fourth respondent dated 17.05.2017 and 03.08.2017 and consequently, direct the first respondent to sanction family pension to the petitioner from 09.05.1993 till 31.08.2016.

The counsel for the petitioner contended that the petitioner was entitled to receive pension from the Army as well as the State Government after the death of her husband and the same cannot be repudiated. It was also concerned on behalf of the petitioner that the matter in issue has been squarely dealt with, by the Division Bench of the Madras High Court in Secretary to Government, Government of TamilNadu, Education Department, St.George Fort, Chennai v. M.Alamelu^[3].

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In the aforementioned case, the appellant relied on rule 49(13-B) of the Tamil Nadu Pension Rules, 1978 according to which a family pension cannot be granted to a person already in receipt of a family pension. Thus, the appellants contended that where the petitioner was collecting a pension from the Army for the past services rendered by her husband she was not entitled to receive a pension from the State Government for the past services rendered by her husband in the Education Department.

However, the respondent submitted that rule 49(13-B) of the Tamil Nadu Pension Rules(Rules) us not applicable to military pensioners, who retired from military services on or after 1st April 1964 or after the commencement of these rules by virtue of rule 49(14)(b) of the Rules. Moreover, the respondent’s husband was receiving pension both from the State as well as the Army.

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The Court held that while subrule (13-B) contemplates that where a person who is already in receipt of family pension shall not be granted pension under this Rules, except for a situation where he forgoes the pension granted under any other pension rules. Subrule 14 however contemplated that the Tamil Nadu Pension Rules are not applicable to military personnel who have retired from military service on or after 1st April 1964 or after the commencement of the Rules. Thus, the respondent’s wife is liable to receive pension from the Army as well the State as was received by her husband.

Respondent no. 5 of the present case filed a counter-affidavit by which it was submitted that the petitioner was not entitled to receive family pension from 8. 5. 1993 as her claim does not fall under rule 49(3)(a) of the Tamil Nadu Pension Rules, 1978. It was further submitted that a military pensioner who is reemployed in Civil Service on his superannuation may opt either for Family Pension rules under Military Pension or Family Pension under State Government (Rule 49(13A)), and a person who is already in receipt of Family Pension shall not be permitted to draw Family Pension under Rule 49, unless he forgoes Family Pension under other rules (Rule 49(13B)). With regard to payment of pension from 8.5.1993 it was submitted that the authorization to grant family pension was in accordance with the Government order dated 05.04.2017, which clearly stated that, second pension apart from Military pension shall take effect from 02.09.2016.

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The counsel for the respondent submitted that the Rule barred any person from receiving a dual pension and gave an option to either receive family pension or to receive any other pension under any other Pension rules, but both cannot be received simultaneously. It was further contended that the petitioner cannot be awarded Family Pension from 09.05.1993 to 31.08.2016 as the same was barred under the Rules, therefore the petitioner’s writ petition is liable to be set aside.

The Hon’ble High Court, after careful examination of the material on record, came to the conclusion that the issue raised in the present appeal has been extensively covered in Secretary to Government, Government of TamilNadu, Education Department, St.George Fort, Chennai v. M.Alamelu^[4]. The High court opined that the Division Bench after evaluating the Tamil Nadu Pension Rules 1978 came to the conclusion that dual pension is permissible and the bar imposed in the relevant Pension rules does not apply to military personnel. Thus, the High Court is bound by the view taken by the Division Bench in⁴^. Accordingly, the petitioner is held entitled to receive family pension from 09. 05. 1993 till 31. 08. 2016. The Court further directed Respondent no. 1 to immediately pass appropriate order and rework the family pension payable to the petitioner in a period of six weeks. Consequently, the appeal was allowed with the above directions.

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Point to note- Dearness allowance only for One pension (Military Family Pension.

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For case specific advice, please contact best/top/expert AFT Chandigarh Bench Lawyer Advocate in Chandigarh Panchkula Mohali (Punjab & Haryana).

This post is written by Aniket Rai.