The main legal point established in the judgment is the entitlement of beneficiaries under the family pension scheme to exemptions as per the Chandi Prasad Uniyal case, based on the legal provisions of the Pensions Act and Rule 49B of the Tamil Nadu Pension Rules.

JUDGMENT :

(Prayer: Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ Certiorarified Mandamus to call for the records of the impugned order issued by the third respondent in Na.Ka.No. 5250/2014/F1, dated 02.04.2014 and quash the same and consequently, direct the respondents to refund the amount so for recovered from the family pension of the petitioner within a specified time frame fixed by this Court.)

1. Challenging the order of recovery from the family pension payable to the petitioner, who is the wife of the deceased Government employee viz., R. Andi, she has filed the present writ petition.

2. Service Matrix of the petitioner's husband is as follows:

The petitioner's husband viz., Late R. Andi, served as Head Constable in Police Department and obtained compulsory retirement on 28.06.2001. After the death of her husband on 23.08.2009, she was receiving family pension of Rs.4,294/-. The grievance of the petitioner is that on 02.04.2014 the third respondent herein issued an impugned order in Na.Ka.No.5250/2014/F1, dated 02.04.2014 to recover excess payment in her family pension. The third respondent has stated in the said impugned order that the petitioner was entitled to Rs.4,294/- as enhanced rate of Family Pension till 24.04.2011 and thereafter, from 25.04.2011 Rs.3,050/- as normal rate of family pension. But, they have paid from April 2011 to January 2014, under the basis of enhanced rate of family pension, hence, there was excess payment of Rs.69,184/- to her. The third respondent is deducting the excess payment from her family pension from April 2014 onwards. The excess payment is not due to her false representation or misrepresentation. Therefore, the recovery of Rs.69,184/- from her family pension is arbitrary. In the impugned order dated 02.04.2014, there is no reason that the alleged excess payment of family pension for the period of April 2011 to January 2014 was neither due to her false representation nor misrepresentation of any facts. Therefore, the alleged excess payment is purely an act of the administration. In support of his contention, the learned counsel appearing for the petitioner relied upon the Judgment reported in 2009(3) SCC 475 (Syed Abdul Qadir and others Vs. State of Bihar and others).

3. Per contra, the learned Additional Government Pleader submitted that the excess payment may due to wrong / irregular pay fixation can always be recovered and in support of his contention he relied upon the Judgment of the Hon'ble Supreme Court reported in 2012(8) SCC 411 (Chandi Prasad Uniyal and others Vs. State of Uttarakhand and others), wherein at paragraph No.15 it has been held as follows:

“15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case and in Col.B.J. Akkara (Retd.,) vs. Union of India (2006 11 SCC 709) Case, the excess payment may due to wrong / irregular pay fixation can always be recovered.”

4. After hearing the counsel for the petitioner and taking note of the service matrix of the deceased R.Andi, who is the husband of the petitioner herein, it is seen that the said R.Andi retired on 28.06.2001 on compulsory retirement and he died on 23.08.2009 and the Family Pension was sanctioned at Rs.4,294/- per month. Subsequently, the respondents found that she is not eligible for the said enhanced rate of family pension and only entitled to normal rate of pension at the rate of Rs.3,050/- and hence, passed order for recovery of excess amount paid to the widow of the deceased Government employee viz.,.. (in toto), the order of recovery from the family pension payable to the petitioner is under challenge.

5. The word “Pension” in Section 11 of the Pensions Act (23 of 1871), namely, a periodical allowance or stipend, granted not in respect of any right, privilege, perquisite or office, but on account of past services or particular merits or as compensation to dethroned princes, their families and dependents.

6. The petitioner