Freedom Fighter's Pension is not considered as income for the purpose of granting family pension.

JUDGMENT :

(Prayer: Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarified Mandamus calling for the records relating to the impugned order passed by the second respondent vide proceedings No.PEN13/II/PT.16330/ G.O.325/2017-18/1037- 128115 dated 27.02.2018 and consequential impugned order of the third respondent in his proceedings L.Dis.No.352/2018/M1 dated 03.04.2018 and quash the same as illegal and consequently direct the respondents to grant family pension to the petitioner arising out of the same State Government civil service of petitioner's deceased mother, in addition to the Freedom Fighter Pension being received by the petitioner, within the period that may be stipulated by the Court.)

1. This writ petition is filed challenging the proceedings of the second and third respondents, in and by which, the family pension granted to the petitioner was cancelled.

2. The petitioner is an unmarried woman. She is the daughter of a Freedom Fighter, viz., Late S.T. Sivasamy. He was granted with Freedom Fighter's Family Pension. Her mother was working as a School Assistant in the Municipal Primary School, Pudukottai and after her mother's death on 15.08.1979, the father was receiving the family pension, in addition to the Freedom Fighter's Pension and he passed away on 04.04.2001. Subsequently the petitioner being the legal heir, was granted with Freedom Fighter's Pension. However after his death, the family pension of her mother's employment was not drawn by the petitioner or by her siblings. While so, the Government of Tamil Nadu vide government order in G.O(Ms)No.327, Finance (Pension) Department dated 30.08.2001 and G.O(Ms)No.325 Finance (Pension) Department dated 28.11.2001 ordered for family pension to the unmarried daughters above 25 years on condition that their income should not exceed Rs.2,550/- month and it was subsequently enhanced to Rs.7,850/- per months vide G.O(Ms)No.337 Finance (Pension) Department dated 14.11.2017.

3. While so, the petitioner made application for family pension and she was granted with family pension vide proceedings dated 04.12.2017 by the first respondent. However the second respondent vide proceedings dated 27.12.2018 directed the third respondent to cancel the sanction of family pension that the petitioner is not eligible for drawing family pension since she is already in receipt of Freedom Fighter's Pension and the third respondent vide impugned proceedings dated 03.04.2018 returned the PPO for cancelation. Unfortunately, this order was passed without even issuing notice to the petitioner.

4. The learned Counsel for the petitioner submits that the petitioner being the unmarried daughter of the pensioner aged above 25 years, she is entitled for family pension also, in addition to the Freedom Fighter's Pension of Rs.13,390/-, which she is presently drawing. The impugned order is passed based on G.O(Ms)No.337 Finance (Pension) Department dated 14.11.2017 that the petitioner is having more income than the fixed amount of Rs.7,850/- and also on the ground that the petitioner is not entitled for dual pension as per G.O.(Ms)No.290 Public (Ex-Servicemen) Department dated 05.04.2017.

5. The learned Counsel further submits that it is incorrect to state that G.O.(Ms)No.290 Public (Ex-Servicemen) Department dated 05.04.2017 does not permit dual pension. Moreover, the government order is in favour of the petitioner, which allows dual pension and orders for sanction of dual family pension to those families of Ex-Servicemen, who are re-employed in civil service and earned pension out of the re-employment prior to 01.04.2003, in addition to the Military Family Pension already drawn by them.

6. The learned Counsel further submits that insofar as the limitation of Rs.7,850/- should be the income for grant of family pension is concerned, the petitioner is receiving a sum of Rs.13,390/- as Freedom Fighter's Pension. The Hon'ble Supreme Court has held that the pensi