Armed Forces Tribunal
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Armed Forces Tribunal (AFT): The Division Bench of Justice Devi Prasad Singh (Chairperson) and Air Marshal BBP Sinha, Member (A) heard the instant application wherein the allegation was levelled against the authority concerned of non-observance of Tribunal’s order.

The applicant was enrolled in the Army as Sepoy on 23-01-1980. On account of certain family dispute, coupled with the fact applicant was charged with bigamy, his services were dispensed after serving a show-cause notice on 25-01-1996 i.e. after rendering service for the period of 14 years and 6 months.

The applicant had requested the authorities that the six months’ period required to complete 15 years of service for payment of pensionary benefits be condoned. In the application, the Tribunal had directed the respondents to decide the statutory appeal of the applicant by passing a speaking and reasoned order with regard to condonation of six months’ period so that the applicant may be paid pensionary benefits. However, the same had been decided by a non-speaking order.

The Bench observed that the authorities concerned had the right to condone a period of one year for the purpose of payment of pensionary benefits yet they had not applied mind while complying with the direction Tribunal. The Bench stated,

In case he (the applicant) was entitled to pensionary benefits after the order of discharge, which was not punitive one, it was incumbent upon the respondents to consider the impugned order of discharge without going back to the cause for passing the order of discharge.

If the applicant’s conduct had been bad then it would be open to the respondents to pass an order of dismissal, so that the applicant might not get any retiral benefits even if he had completed the qualifying minimum period of service. Considering that the respondents themselves had taken a lenient view, it was not open for them to look into the backgrounds or reason.

“The order of discharge might have been passed for bigamy but in any case right to avail pensionary benefits and law over the point is one and same and it may not be correct to discriminate any person in the matter in the Armed Forces.”

The Bench opined that once a person is entitled to payment of pensionary benefits after discharge then provision must be considered judiciously for payment of pensionary benefits, more so when no punitive order had been passed. Hence, the respondents were directed to reconsider the application of the applicant expeditiously, keeping in view the prayer made by him for condonation of the period of six months to complete 15 years of service for payment of pensionary benefits. Further, the cost of Rs.50,000 was imposed upon the respondents which were ordered to be released in favour of the applicant.[Ram Bahadur Singh, v. Union of India,  2018 SCC OnLine AFT 9435, decided on 18-01-2018]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Tribunal:

For the applicant: Adv.  Parijaat Belaura

For the respondents: Adv. Shailendra Sharma Atal, and Adv. A.K. Sahu

Jammu and Kashmir and Ladakh High Court
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Jammu and Kashmir High Court: Sanjay Dhar, J., while allowing the present petition, clarified that a person who has been declared missing for more than ten years, cannot be said to have ‘deserted’ his service responsibilities.


Petitioner has filed the instant petition seeking declaration that her husband namely Asha Ram, be declared as dead in terms of Section 108 of India Evidence Act, 1872. A Writ of Certiorari to quash the order of respondents whereby the missing husband of the petitioner has been declared as ‘deserter’ by the respondent authority has also been sought.


Whether the respondents could have, on the basis of an enquiry, declared the petitioner’s husband as ‘deserter’ in the circumstances of the present case?


Court reproduced Section 108 of the Indian Evidence Act, 1872;

Burden of proving that person is alive who has not been heard of for seven years –  Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

Further, Court referred to the definition of the word ‘desert’ as defined in Oxford English Dictionary to mean: (i) callous or treacherously abandon (ii) leave (a place), causing it to appear empty and (iii) illegally run away from the military service and connecting it with the facts of the present case, observed, “A person, whose whereabouts are unknown and who has not been heard of for the last more than 10 years, cannot be stated to have illegally run away from his service … the petitioner’s husband is presumed to be dead because his whereabouts have remained unknown for more than seven years, as such, and by no stretch of imagination, he can be held guilty of having deserted the service of CRPF… The action of the respondents in declaring the petitioner’s husband as ‘deserter’ and thereafter handing down the punishment of dismissal to him, is unsustainable in law.”


While allowing the present petition, Court quashed the orders of the respondent authority whereby the petitioner’s husband was declared ‘deserter’ and was dismissed from his service. Further, directions were issued to release all the service/pensionary benefits of the petitioner’s husband in favour of the rightful claimants.[Madhu Devi v. Union of India, 2020 SCC OnLine J&K 723, decided on 24-12-2020]

Sakshi Shukla, Editorial Assistant has put this story together

Punjab and Haryana High Court
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Punjab and Haryana High Court: Anil Kshetarpal, J., expressed concern over lethargic attitude of the State towards granting pensionary benefits to the petitioner, the Court stated, “This court is sad to observe that the officials have lost all the compassion.”

 The petitioner lost her son on 26-11-2016, who, at the time of his death was working as Rural Medical Officer with the State of Punjab. The widow and children of the deceased shifted to Canada and they had already submitted an affidavit giving ‘No Objection’ to the authorities to release of pensionary benefits exclusively to the petitioner, who was mother of the deceased. The instant petition had been filed for issuance of a writ of mandamus to direct the official respondents to release pensionary and other service benefits exclusively to the petitioner. It was submitted that the amount of gratuity with regard to the deceased had also not been released.

Counsel for the respondent, Ambika Bedi, argued that the widow of the deceased was required to sign the necessary papers only then the pensionary and other pending benefits could be released, since the widow did not contact the respondent with necessary papers, the department did not release the amount. It was further pointed out by the respondent that approximately a sum of 3,08,000 rupees had been released to the petitioner towards arrears of medical reimbursement, salary, leave encashment and ex-gratia. Also, the process for releasing the payment on account of Contributory Provident Fund and Family Pension and whatever amount was legally due to the petitioner had already been initiated and the same would be completed within one month.

The Court directed the respondent to address the grievances of the petitioner expeditiously. While expressing concerns over unjustified delay in the grant of pensionary benefits to the petitioner the Court said, “It is unfortunate that the dependents/heirs of an Ex-employee, who died in harness, are being made to run from pillar to post. It is, thus, apparent that the State of Punjab has to put its house in order lest the Court compelled to take a serious view of the matter. It is hoped that this order would serve as a wake up call for the officers.” [Balbir Kaur v. State of Punjab, 2020 SCC OnLine P&H 2263, decided on 21-12-2020]

Gauhati High Court
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Gauhati High Court: Achintya Malla Bujor Barua J., while reiterating the principle laid down by Supreme Court, with respect to calculation and payment of the retirement benefits, issued necessary directions to the respondent authorities.


The petitioner working as an Assistant Teacher in Lower Muolhoi School in the district Dima Hasao, Assam, retired from service on 31-03-2018. After his retirement, when the matter was processed for payment of his pensionary benefits, the communication dated 05-06-2020 of the Finance and Accounts Officer in the office of the Directorate of Pension, Assam was made addressed to the District Primary Education Officer, Haflong, Assam, by which, it was provided that during his service tenure, the petitioner was paid a salary higher than his actual scale. Accordingly, by the said communication, the District Primary Education Officer, Haflong, Assam was required to do the needful. The said communication has been assailed in the present writ petition on the ground that as per the law laid down by the Supreme Court, recovery from the pensionary benefits cannot be made in respect of any salary that was paid to an employee during his service period for no fault of his own.


The Court observed, “The law in this respect has been settled by the Supreme Court in Shyam Babu Verma v. Union of India, (1994) 2 SCC 521 and State of Punjab v. Rafiq Masih, (2015) 4 SCC 334, wherein it had been held that in the event an excess salary is paid to an employee during his/her service tenure because of no fault of his/her, such excess payment cannot be recovered from the retirement benefits.”  Further, it was said, “(…) the ends of justice would be met if the authorities in the Pension Department make an assessment as to whether there was any contribution on the part of the petitioner in receiving such excess salary during his service tenure. In the event, if it is found that there was no such contribution from the petitioner leading to such excess payment, the authorities shall not insist upon the recovery in view of the law laid down by the Hon’ble Supreme Court as indicated above.”


Allowing the present petition, the Court stated the correct payment of the petitioner according to which the pension was to be calculated and not the higher pay which he derived during his service. Moreover, directions were given to conduct the assessment within a period of two months so to effectuate the entire process.[Hrangthalien Tamhrang v. State of Assam, 2020 SCC OnLine Gau 4499, decided on 24-11 2020]

Sakshi Shukla, Editorial Assistant has put this story together

Jharkhand High Court
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Jharkhand High Court: Deepak Roshan J., upheld the impugned judgment and dismissed the petition stating that the petitioner failed to show any error in the said judgment.

The facts of the case is that the petitioner was appointed in 1971 as Extra Clerk in the office of District Sub- Registrar, Latehar which was confirmed on 21-01-1981 and retired on 31-01-2000, but his retirement benefits has been fixed counting his service from 1981. The petitioner earlier moved the Court for same relief by filing writ application which was heard and disposed of with a direction to reconsider adding his past services as Extra Clerk to the total length of services and reassess the amount of pension etc. The instant writ application has been preferred by the petitioner for quashing the order dated 31.05.2011 passed by the I.G. Registration which has rejected the service of petitioner rendered as Extra Clerk to not be counted for pensionary benefits.

Counsel for petitioner M.M. Sharma submitted that the said memo is illegal and has no leg to stand and that the petitioner having been served for 24 years deserve to be given benefits.

The respondents were represented by Sreenu Garapati, Sudharshan Srivastava and Diwakar Upadhya. It was submitted that as per Bihar Govt. Finance Department Resolution dated 22-07-2003, it has been laid down that those extra clerk who have served minimum 240 days as Extra Clerk in one Calendar year; all those period of service since prior to the date of confirmation shall be computed for pension but since the petitioner did not work 240 days in any of the calendar Year’s as Extra Clerk as such, his service period rendered as Extra Clerk are not fit to be counted for pensionary benefit. It was further laid down that said post was not substantive and permanent and was not being paid out of public exchequer.

The Court observed that the petitioner was working as Extra Clerk on a temporary basis and his employment was not against any substantive and permanent post and he was not being paid out of public exchequer as provided under Rule 58 of the Jharkhand Pensions Rules and on the other hand, the petitioner has also not passed the accounts examination as well as he did not complete 240 working days in any calendar year as such, he could not take benefit of the resolution of the Finance Dept. Govt. of Bihar.

The Court relied on the judgment titled State of Jharkhand v. Kauleshwar Prasad, 2006 SCC OnLine Jhar 238 held that the period of Extra Clerk shall not be counted for the purpose of giving pensionary benefits.

In view of the above, impugned judgment upheld and petition dismissed.  [Daya Shankar Prasad v. State of Jharkhand,  2020 SCC OnLine Jhar 770, decided on 24-08-2020]

Arunima Bose, Editorial Assistant has put this story together

Punjab and Haryana High Court
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Punjab and Haryana High Court: Harsimran Singh Sethi, J. heard a civil writ petition stating that financial difficulty cannot be a ground to withhold pensionary benefits.

The grievance which was raised by the petitioner was that she retired on attaining the age of superannuation while working as an Inspector from Municipal Council. All the benefits for which she was entitled upon her retirement, were not released immediately and the same were delayed by the respondents without any valid justification and the last amount paid Rs 4,00,000 was paid to the petitioner on March 2016, which is the petitioner was approximately 5 years after her retirement. As the amount of  Rs 6,76,000 was released to her but the remaining amount under the heading of gratuity and leave encashment was not paid to her immediately, she approached this Court by filing a writ petition whereby the Court directed respondents to release the benefits for which the petitioner was entitled.

In pursuance to the direction given by this Court, respondents passed an order on 12-01-2016 admitting that due to the paucity of the funds, all the benefits could not be released. Also mentioned in the order was that the gratuity amount was released to the petitioner on two occasions i.e. Rs 1,00,000 on 21-11-2012 and  Rs 3,00,000 on 08-07-2014 and still a balance of Rs 1,65,719 was due to be paid to the petitioner.

In the present case, the counsel for the petitioner argued that all the dues were paid approximately after a period of 5 years of her retirement and, therefore petitioner was entitled to interest on the said delayed payments. The counsel for respondents argued that due to the financial instability, the payments could not be made to the petitioner after her retirement.

The Court relied on the decision of A.S. Randhawa v. State of Punjab, 1997 SCC OnLine P&H 712 to rule that there was no valid justification to withhold the pensionary benefits and the employee would be entitled to interest. The Court, therefore, held that financial constraint was not a valid justification to withhold pensionary benefits, and thus, ordered that the petitioner would be entitled to interest at 9 per cent per annum from the date the amount was due. Hence, the petition was allowed.[Vinod Kumari Sharma v. State of Punjab, 2019 SCC OnLine P&H 866, decided on 28-05-2019]

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Bombay High Court: Sandeep K. Shinde, J. examined the scope of jurisdiction to be exercised by the Probate Court, and allowed an appeal filed against the order of the Probate Court whereby the appellant’s application under Section 276 of the Indian Succession Act for probate of will of her deceased husband was rejected.

Aggrieved by the said rejection, the appellant preferred the present first appeal. T.S. Ingale, counsel for the appellant submitted that in the proceedings for grant of probate with a will annexed, the Court exercising testamentary jurisdiction is not concerned with title to the property.

Having considered the facts of the case and the settled law as regards the scope of jurisdiction of the Probate Court, the High Court was of the view: “the learned Judge while deciding the application for probate has exceeded his jurisdiction by enquiring into the issues of title in the probate proceedings. The learned Judge while deciding the application for probate ought not to have made enquiry about the  competency of the deceased to bequeath the pensionary benefits to the appellant and ought to have only enquired into, whether the appellant has proved execution of the will  and the deceased was in sound state of mind at the time of executing the will.”

It was also stated that the appellant had proved the genuineness of the will and its due execution. In such circumstances, the Court was of the view that the Probate Application filed by the appellant was required to be allowed. Order was made accordingly, and the impugned order was set aside. [Kamal Mahaling Patil v. Indubhai Mahaling Patil, 2019 SCC OnLine Bom 954, decided on 26-04-2019]

Patna High Court
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Patna High Court: The Three-Judge Bench of Ashwani Kumar Singh, Birendra Kumar and Anil Kumar Upadhyay, JJ. dismissed a letters patent appeal which came as a reference to this Court in view of conflicting opinions regarding the calculation of cut-off date for counting the service of a teacher for the purposes of pensionary benefits.

The Court observed that the term ‘service condition’ is very wide and includes all the conditions of service before entry till post-retiral benefits. The following notifications/ schemes pertaining to the issue of disbursal of pension were noted by Court:

  • The scheme of pension for teaching and non-teaching employees was introduced by the State Government by way of triple benefit scheme with effect from 01-04-1962. The benefit of pension was admissible to all non-government schools whether run by local bodies or private management. Therefore, with the grant of permission to establish an educational institution, a teacher or non-teaching employee was entitled to the benefit of pension as a matter of course under the 1962 triple benefit scheme.
  • Secondary Education Board issued a letter dated 01-03-1977 whereby it recognized service of teachers appointed from the date of grant of permission to schools to the date of its permanent recognition.
  • Another notification issued on 29-11-1978, extended pensionary benefits to teaching and non-teaching staff of Non-Government Secondary Schools.
  • On 30-08-1980, the Education Department issued a notification declaring that the State Government had decided to grant benefit of general provident fund, pension (family pension) and gratuity to the teachers and non-teaching employees of recognized schools with effect from 01-04-1978. This benefit was available to all teachers and non-teaching employees, who opted for such benefit by accepting the reduced age of 58 instead of 62 years and also to all teachers appointed after 01-04-1978.
  • A resolution issued on 15-01-1982 by the State Government condoned the break in service in purported exercise of power under Rule-203(A) of the Bihar Pension Rules.

In view of the above, it was held that that cut-off date for calculating pension shall be as follows: teachers appointed prior to grant of permission to school shall reckon their service from the date of grant of permission for establishment of the institution, and their service would be counted from that date for the benefit of pension.

The LPA was dismissed and all decisions contrary to the view taken in this Judgment were held to be overruled. As a parting observation, the Court noted that the issuance of a plethora of notifications regulating service condition from time to time had led to the conflicting decision of the Benches. Divergence of opinion was also due to ignorance of notifications occupying the field. Thus, the Bench deemed it appropriate for the State Government to frame exhaustive Service Condition Rules instead of issuing multiple notifications, so that conflict in adjudications may be obviated.[State of Bihar v. Asha Sharma, 2019 SCC OnLine Pat 563, Order dated 18-04-2019]

Jharkhand High Court
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Jharkhand High Court: The Bench of Aniruddha Bose, C.J. and B.B. Mangalmurti, J. dismissed a petition claiming arrears of pension, post retrial benefits with statutory and penal interest.

In the present case the appellant was appointed as Chairman and later was appointed as Junior Account Clerk in Rural Works Department. After rendering a long length of service, he superannuated as Accounts Clerk. The respondents settled his pensionary benefits by paying his Government Provident Fund, Group Insurance amount, part of gratuity as per 5th Pay Revision Commission (old scale) and part of leave encashment as per 5th Pay Revision Commission (old scale). The appellant alleged that the respondent did not pay arrear and benefits of first, second and third financial upgradation under Assured Carrier Progression and the arrear of pay revision, gratuity and part of leave encashment as recommended by 6th Pay Revision Commission. And that he stands on equal footing with one of his colleague, Saryug Prasad, as when he approached the Court, the same was allowed and the respondent was directed to pay benefits of financial upgradation. The respondents controverted the claim as appellant did not pass a departmental examination which is mandatory and as such the case of this appellant is not similar to the case of Saryug Prasad. Moreover, after attaining the age of 50, the appellant did not approach his controlling officer for issuance of an order of waiver while he was in service.

The Court after considering the material facts and the papers attached therewith held that it was clear that the appellant did not pass the mandatory test which was a prerequisite. The Court relied on the case of U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 where the Court held that “…When a person who is not vigilant of his rights and acquiesces with this situation, can his writ petition be heard after a couple of years on the ground that same relief should be granted to him as was granted to persons similarly situated who was vigilant about his rights and challenged his retirement…”.

In such view of the matter, the Court held that no relief could be granted to the appellant.[Birendra Kumar Sinha v. State of Jharkhand, 2019 SCC OnLine Jhar 432, decided on 23-04-2019]

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Gujarat High Court: A petition filed by the aggrieved under Articles 14, 16 and 226 of the Constitution, for denial of pensionary benefits was heard by the Bench of Mohinder Pal, J.

The petitioners were unskilled labourers on daily wage contract under Deesa Irrigation Division in the year 1972. According to a circular issued by the Government of Gujarat, the unskilled labourers were to complete 5 years of service and after completion of 5 years of regular service and completion of 240 days in each year, only then they would be put to a fixed pay-scale.

The crucial question before the Court was whether the period of service completed prior to regularization, would be counted towards pensionary benefits.

Certainly, the unskilled labourers had completed their 5 years of service and were subsequently put up on fixed-pay scale, after which they were retired in the year 2011. The contention put up against the petitioner for denial of pensionary benefits was that the petitioners did not complete service of 10 years of service after they were made permanent.

The Court was of the considered opinion that the period spent by the petitioners from 1998 till 2003, when they were kept on fixed pay is required to be counted while calculating the total length of service of the petitioners, as the petitioners had completed 5 years of continuous service and 240 days in each financial year in the year 1998, after which they were put on a fixed pay-scale. Therefore, the petitioners are well entitled to receive the pensionary benefits from 1998 and the arrears were directed to be paid by the respondents with 9% interest till the actual payment is made. [Galabji Navaji Thakor v. State of Gujarat, 2018 SCC OnLine Guj 71, decided on 18-01-2018]
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Calcutta High Court: The writ petition was preferred by a primary school teacher, aggrieved that an amount of Rs. 68, 556 was deducted from the pension payment order by the authorities, due to alleged over-drawl.

Learned counsel on behalf of the petitioner, by relying on the Supreme Court’s decision of Shyam Babu Verma v. Union of India, (1994) 2 SCC 521 contends that the excess amount can’t be recovered from the retiral benefit of an employee unless it is due to some fraud or misrepresentation. In the case of Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475 the Supreme Court observed that “the relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered.”

Therefore,  Arijit Banerjee, J. quoted the observation of another learned Judge, “the choice is like choosing between the devil and deep sea” and ordered that, by considering the decisions of the Hon’ble Division Bench in the cases of Shyam Babu Verma, Syed Abdul Qadir, Chandi Prasad Uniyal v. State of Uttarakhand, (2012) 8 SCC 417 and State of Punjab v. Rafiq Masih, (2014) 8 SCC 883 held that no recovery can be made from a retired employee who is due to retire within one year from the order of recovery. Further, no recovery could be made in the present case from the retrial benefits of the petitioner even after a delay of 15 years by considering the decision of the case of Union of India v. Tarsem Singh, (2008) 3 SCC 648, as it did not affect the third party rights. [Jaynal Alam v. State of West Bengal, 2017 SCC OnLine Cal 10406, decided on 12.07.2017]


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Calcutta High Court: In the present case, where the petitioner was aggrieved due to the impugned Pension Payment Order, 1999 by which the respondent authorities had deducted an amount of Rs. 29,447 on account of alleged overdrawal, the Bench of Arijit Banerjee, J., held that pensionary benefits are paid to a superannuated person by way of social welfare measure to enable him to live a life of dignity which is now recognized as a fundamental right of a citizen of India. An employer’s right to recover excess payment from the pensionary benefits of an employee who has committed no fraud or misrepresentation whatsoever, must be strictly construed. However, if fraud has been committed by an employee to induce the employer to make the excess payment, then such an employer’s right to recovery from pensionary benefits cannot be doubted.

In the instant case, the counsel for the petitioner Sourav Mitra contended that recovery of excess payment cannot be made from the retiral benefits of an employee unless such excess payment was made to the concerned employee because of some misrepresentation or fraud on his part. Meanwhile, the State via Supriyo Chattopadhyay, contended that excess payments made due to irregular pay fixation can be recovered by the employer.

Upon perusing the rival contentions and noting the declaration signed by the petitioner for his employer as to recovery excess payment, the Court observed that the form of declaration clearly means that even at the highest, recovery of excess payment could be made by the State from the salary bill of the petitioner during the tenure of his service and such a declaration would not entitle the State to recover any overdrawals from the pensionary benefits of the petitioner. The Court also went on to observe that declarations as to recovery excess payments are signed by employees under compelling circumstances with no real choice in such issues. [Shiba Rani Maity v. State of West Bengal, 2017 SCC OnLine Cal 109, decided on 18.01.2017]


Case BriefsHigh Courts

Madras High Court: Dismissing a petition filed under Article 226 of the Constitution  against the order of the District judge denying pensionary benefits to the petitioner, the Bench of M. Sathyanarayanan and Nisha Banu, JJ. held that as per sub-rule 5 of Rule 45 of the Tamil Nadu Pension Rules, the petitioner herein cannot be considered as a family member unless at the time of nomination he was below the age of 18 years and admittedly it was not so.

The petitioner was nominated by his sister, who was employed as Grade I Bench Clerk in Tamil Nadu Judicial Ministerial Services, as legal heir and had also executed a registered will by appointing him to succeed her estate in respect of the receipt of the said service benefits. The learned counsel for the respondent invited the attention of this Court to the Rule 45(5) of the Tamil Nadu Pension Rules that said that the family in relation to the government servants means brothers below the age of 18 years including the step-brothers and admittedly the petitioner, even at the time of nomination, has crossed that age and as such, he cannot be given pensionary benefits. While the learned counsel appearing for the petitioner vehemently submitted that in terms of Rule 48 of the Tamil Nadu Pension Rules, the petitioner fell under the category of specified nominee.

In the considered opinion of this Court, the said stand of the petitioner lacked merits and substance for the reasons that the proviso should be read in consonance with the main provision and it could not fall on exception. It further noted that in the light of the definition of family members under Rule 45(5), Rule 48 should be read in consonance with Rule 45 and therefore, the petitioner herein cannot be construed as a family member, though he was nominated along with his brother-in-law, who was no more. [B. Senthil Kumar v. The District and Sessions Judge, 2016 SCC OnLine Mad 10391, decided on 14.11.2016]