Venkataraghavan, represented by next friend, M.D. Chellappa vs The District Educational Officer, Chingleput, The Assistant Educational Officer, Acharappakkam and The Accountant-General (Tamil Nadu)

Kanakarai, J.—One M.D. Rukmani was working as a teacher in the Panchayat Union School Madhur. Out of her illicit relationship with one

Vedachalam who was also a teacher in the school, she gave birth to the petitioner Venkataraghavan. The said Rukman passed away on 20-1-

1981 in harness. The petitioner obtained a legal heir certificate from the Tahsildar. Further, the petitioner was also nominated by the said Rukmani

in the Family Benefit Fund, Provident Fund, Group Insurance Scheme, etc. On the strength of the legal heir certificate issued by the Tahsildar, the

District Educational Officer, Chingleput sanctioned family Benefit Fund of Rs. 10,000 as well as Death cum-Retirement Gratuity to the tune of Rs.

4620 in favour of the petitioner, Both the said amounts have been deposited with the Indian Overseas Bank because the petitioner was a minor.

The petitioner also applied for grant of family pension which was also recommended by the District Educational Officer, Chingleput. However, the

Accountant General, Tamil Nadu was of the opinion that the petitioner, being an illegitimate son, was not eligible for Family Pension in accordance

with the Rules. He however, directed the petitioner to apply to the Government for exemption. It is seen from the counter-affidavit that the

Government was not in favour of relaxing the Rules since the petitioner cannot be treated as a legitimate child of the deceased teacher. What is

more, the Government also directed that the payment of Family Benefit Fund and Death-cum-Retirement Gratuity was also not in order and should

be recovered back from the petitioner. On the basis of the Government Orders, the Assistant Educational Officer by his letter dated 24-12-1985

recalled the said amounts of Rs. 10,000 and Rs. 4,626 said to have been paid under a mistake to the petitioner. It is, under these circumstances,

that the petitioner has come forward with this writ petition to quash the said order dated 24-12-1985 and also to direct the respondents to grant

Family pension to the petitioner arising out of the death of his mother Rukmani Ammal. Mr. T. Srinivasamurthy, the Learned Counsel appearing for

the third respondent brings to my notice the relevant Rules in respect of the three different claims. The Tamil Nadu Pension Rules, 1978 governs

the payment of Family Pension and the payment of Death cum Retirement Gratuity. The third respondent is not concerned with the payment of a

sum of Rs. 10,000 under Family Benefit Fund''s Scheme which is exclusively governed by the Tamil Nadu Government. Reliance is placed on the

word ""family"" in R.49(13)(b) of the Tamil Nadu Rules, which reads as follows :

...(b) family, in relation to a Government servant means�() wife in the case of a male Government servant or husband in the case of a female

Government servant, provided the marriage took place before retirement of the Government servant ;

Note 1 :� Wife and husband shall include respectively judicially separated wife and husband.

Note 2 :� Where the appointing authority referred to in sub-R (3) of R. (6) decides that for the reasons to be recorded in writing, a child or

children from a judicially separated deceased female Government servant should receive the family pension in preference to judicially separated

husband of the deceased Government servant, such husband shall not be regarded as covered by the expression ''family''.

(ii) son who has not attained the age of 21 years and unmarried daughter who has not attained the age of 24, years including such son and daughter

adopted legally before retirement.

(iii) Father and mother in the case of unmarried Government servants...

Therefore, the argument is that a child of a judicially separated deceased female Government servant can receive the family pension in preference

to the judicially separated husband. But the definition does not provide for a case like the one in this writ petition. No doubt, there is a Government

Order dated 13-5-1980 to the effect that the lump sum payment of Family Benefit Fund and Group Insurance scheme shall be payable to the legal

heirs irrespective of the fact whether the legal heirs fall within the definition of family or not. But the difficulty expressed by the Learned Counsel for

the petitioner is that in para 2 of the said Government order it has been directed that the orders issued would come into force with effect from 24-

10-1981. In this case, the mother of the petitioner passed away on 20-1-1981. On the question of nomination the Learned Counsel says that the

nomination can be made only in favour of a member of the family and not to any outsider. However, I find that the Government has the power to

relax any rule under R. 82 of the Tamil Nadu Pension Rules, 1978 which is as follows :

Power to relax:�Where any Department of the Government is satisfied that the operation of any of these rules causes undue hardship in any

particular case the Department, may by order, for reasons to be recorded in writing, dispense with or relax the requirements of that rule to such

extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner :

Provided that no such order shall be made except with the concurrence of Finance Department...

The District Educational Officer in his counter-affidavit says that the sum of Rs. 10,000 in the Family Benefit Fund Scheme and the Death cum-

Retirement Gratuity was paid only on the basis of the legal heirship certificate issued by the Tahsildar. In view of the objection taken by the

Accountant General, respondents 1 and 2 have since realised that the amount is not payable to the petitioner.

Going by the definitions as contained in the Rules quoted above, it is no doubt difficult to bring the case of the petitioner within the four corners

of eligibility. However, I feel that this is precisely a case in which the power of exemption under R.82 of the Tamil Nadu Pension Rules, 1978,

should be exercised. If the power of the Government to relax the Rules in such hard cases is not exercised, I am unable to see why the said rules

should be in the pension Rules at all. It is precisely to meet such hard cases that the Government has reserved the power of relaxation. I will now

demonstrate how the case of the petitioner is a hard case and which according to me should be brought within the definition of family and legal heir.

It is not disputed that the petitioner is the son of the said Rukmani. It is not disputed that we are concerned with the payment of the benefits arising

out of the death of the said Rukmani. Under the Hindu Law, the petitioner will be the legal heir of the said Rukmani. Rukmani has also nominated

her son for receiving the benefits. Merely because the petitioner happens to be the illegitimate child of Rukmani, I do not understand how he can be

denied the benefit of the various amounts mentioned above, like the Family Benefit Fund, the Death-cum Retirement Gratuity and the Family

Pension which are payable on the death of Rukmani. Therefore even if the makers of Law did not contemplate such a situation while defining the

word ""family"", it is time now to make necessary amendments to the Tamil Nadu Pension Rules. In any event, this is a case in which the

Government should have exercised the power of relaxation under R.82 of the Tamil Nadu Pension Rules, 1978. I do not think it is necessary for

me to send back the case to the Government to enable them to consider the question of relaxation. It is now well settled that the Court, exercising

jurisdiction under Art. 226 of the Constitution of India can mould the relief and the court is not bound by technicalities. Therefore, instead of

remanding the case back to the Government, I set aside the order of the Assistant Educational Officer dated 24-12-1985 and restrain the

respondents from recovering the amount already paid to the petitioner. I also direct the respondents to effect payment of Family Pension to the

petitioner in accordance with Tamil Nadu Pension Rules as if the petitioner is a member of the ""Family"" eligible to get Family Pension by exercising

power under R. 82. The writ petition is ordered in the above terms. There will be no order as to costs.