M. Mohammed Ibrahim vs The State of Tamil Nadu

Elipe Dharma Rao, J.—Writ Appeal has been filed against the order passed in Writ Petition Nos. 734 and 739 of 2004 dated 17/7/2007

on the file of this Court.

The case of the Appellant is that he was working as Special Grade Typist in Government Periyar EVR College at Tiruchirapalli and he retired

from service on 30/6/1996 and was getting superannuation pension from 1/7/1996. He got married to one Mumtaj Begum in the year 1963. While

she was alive, he got married to one S.K. Sythani Bi on 12/9/1971, who was employed as a Government Servant and was working as Secondary

Grade Teacher in the Government High School, Pudukottai District. Unfortunately, she died on 6/7/1972. Thereafter, the Petitioner staked his

claim for family pension on account of the death of his second wife and got the same. However, by an order dated 6/2/2004, the pension paid to

him on account of the death of his second wife was stopped by the second Respondent. It is this order under challenge in Writ Petition No. 739 of

2004.

In W.P. No. 734 of 2004, the Petitioner has come forward to challenge the action taken by the Respondents in not paying the Dearness

Allowance and the pension payable towards the death of the Petitioner'' second wife.

Considering the arguments advanced on either side, the learned Single Judge has dismissed the writ petitions on the ground that the Petitioner is

already drawing pension on account of his own retirement and cannot stake a claim and seek for a direction from this Court contrary to the

Pension Rules, more particularly, Rule 49 of the Tamil Nadu Pension Rules. As against the order passed by the learned Single Judge, the Appellant

has filed the Writ Appeals.

The learned Senior Counsel appearing for the Appellant would submit that the second marriage of the Appellant took place on 12/9/1971 and

at that time, there is no conduct rule corresponding to Rule 19 of the Conduct Rules, 1973. Since Conduct Rules 1973 is not retrospective, there

is no need for the Appellant to get permission under Rule 19 since his marriage took place prior to 1973 Conduct Rules.

After hearing the arguments advanced on either side and upon having perused the order of the learned Single Judge, it is to be pointed out that

Rule 19 of the Pension Rules was inducted by G.O. No. 2226 Public (Services) Department, dated 18.8.1973, with prospective effect. When

admittedly, the second marriage took place well before 18.8.1973 and when the second wife of the Petitioner also died well prior to that, imposing

the said Rule on the Petitioner, with retrospective effect, is nothing but an illegality perpetrated on the part of the Respondents. It is also to be

pointed out that from the year 1972, the Petitioner is drawing the pension as ''widower''. The learned single Judge has failed to appreciate the fact

that the Rule 19 has no retrospective effect, and thus has landed in an erroneous conclusion, which needs to be interfered with.

In the result, these writ appeals are allowed and the order passed by the learned single Judge in Writ Petition Nos. 734 and 739 of 2004 are set

aside.