Judgment :- 1. This writ petition is filed by S.Malliga, wife of late G.Shanmugam,challenging the impugned order passed by the 4th respondent-Assistant Manager (Selection Grade), Madras Transport Corporation Limited in which he has turned down the request for payment of family pension to the petitioner, wife of late G.Shanmugam, on the ground that the petitioner’s husband failed to render 10 years service and as a result, the petitioner’s husband was not entitled to receive the benefit of Family pension. 2. (i) Mr.V.Ajoy Khose, learned counsel appearing for the petitioner submitted that the petitioner’s husband was employed as a Cleaner in the erstwhile State Transport Department on 09.10.1968 and then, he was permanently absorbed on 01.10.1969. After the formation of the Transport Corporation the petitioner’s husband was permanently absorbed on 01.5.1975. He unfortunately expired while in service on 15.4.1980. Therefore, the learned counsel contended that on the basis of Rule 49(2)(a) of the Tamil Nadu Pension Rules 1978 (hereinafter referred to as “the Rules”) where a Government servant dies after completion of not less than one year continuous service or at any time during his service, he is entitled to receive the family pension at the rate to be determined by the respondent Corporation. In the present case, admittedly, the learned counsel pleaded that the petitioner’s husband has put in more than 10 years of service. The date of joining, namely, 09.10.1968 as Daily paid Cleaner, the date of absorption, namely, 1.10.1969, the date of permanent absorption in the Pallavan Transport Corporation on 1.5.1975 and the date of death, namely, 15.4.1980 clearly show that the case of the petitioner’s husband has been clearly covered under rule 49 (2)(a) of the Rules. Therefore, he pleaded, even as per the said rule when the petitioner is entitled to get family pension from the date of death and when the issue has been decided by the Apex Court and the same has been followed in the order of this Court in W.P.No.21204/1992 dated 7-3-2001 and the G.O.Ms.No.110, Transport Department, dated 06.06.2002 has been passed, taking into account 7.3.2001 from which date the petitioner like persons are entitled to get Family Pension with effect from 7.3.2001, denial of the same by passing the impugned order stating that the petitioner’s husband failed to put in the required qualifying service of 10 years is improper. (ii) The learned counsel further contended that the 4th respondent completely misunderstood the prayer made by the petitioner. For, when the prayer of the petitioner is only for Family Pension, the 4th respondent has misconstrued the prayer that the petitioner was asking for pension as though the petitioner’s husband is in Government service when she is asking for family pension only. (iii) The learned counsel again by relying upon rule 49(1) of the Rules contended that for getting the Family pension minimum one year service is sufficient and that requirementhas been completely fulfilled by the petitioner, and therefore, the respondent who has passed the impugned order by non-application of mind should be directed to pay family pension atleast from 7.3.2001 by setting aside the impugned order. 3.(i) Per contra, the learned counsel appearing for the respondent opposing the prayer submitted that the reasoning given in the impugned order is absolutely in order, for, when the petitioner’s husband has not put in 10 years of service, the question of giving the benefit of Family Pension does not arise and therefore, the request to be rejected for the reason that when the rule is clear that whomsoever has put in one year of service before death, his widow wife and children are entitled to get Family Pension at the rate of Rs.1,000/- on the date of introducing the Tamil Nadu Pension Rules. (ii) The learned counsel for the respondent further submitted that the second respondent-Managing Director has already passed the proceedings dated 24.11.2010 stating that his office would forward the terminal benefits along with the application submitted by the petitioner-wife of late G.Shanmugam who expired while in service on 15.4.1980. The said communication also says that the deceased employee while in service owed a sum of Rs.11,865/-. Therefore, the learned counsel for the respondent further contended that when the petitioner’s husband was in service, was liable to pay Rs.11,865/- towards employer share in PF., bonus, payment amount and service gratuity, that was received for the service rendered on TNSTD for which he was not entitled. Therefore, that amount has to be recovered from the pension arrears and reimbursed to the MTC limited. 4. Therefore, that amount has to be recovered from the pension arrears and reimbursed to the MTC limited. 4. In this connection it is pertinent to extract Rule 49(1) and the relevant portion in Rule 49(2) of the Tamil Nadu Pension Rules 1978 which are as follows: "49.Family pension.-(1)The provision of this rule shall apply to a Government servant entering service in a pensionable establishment whether temporary or permanent on or after the 1st April 1964, or who was in service on the 31st March 1964 and came to be governed by the Tamil Nadu Government Servants' Family Pension Rules, 1964, except the following namely,- (i) Government servants who retired before the 1st April 1964, but are re-employed on the date or thereafter. (ii) Government servants who are employed in Government Industrial Undertakings to whom the Factories Act, 1948 (Central Act LXIII of 1948) or the Employees' Provident Funds Act, 1952 (Central Act XIX of 1952) are applicable excluding those who are governed by statutory service rules and belong to pensionable service. (iii) Government servants who belong to non-pensionable service namely persons paid from contingencies, work charged staff, casual labour and contract officers. (2) without prejudice to the provisions contained in sub-rule (3) where a Government servant dies,- (a)after completion of not less than one year continuous service or at any time during his service; (b).................................... Provided that family pension shall be payable to the family of a Government servant who dies before the completion of one year continuous service, if he was declared fit for Government service by the appropriate medical authority prescribed under the relevant rules immediately prior to his appointment. NOTE.- (i) The rules do not prohibit the grant of family pension of a Government servant who commits suicide." The petitioner's husband joined the erstwhile State Transport Department as Cleaner on 09.10.1968. Subsequently, he was permanently absorbed on 01.10.1969. It was also admitted by the respondent that after the formation of the Transport Corporation he was permanently absorbed in Pallavan Transport Corporation Limited on 1.5.1975 and unfortunately, he expired on 15.4.1980 while in service. It is also not in dispute that the petitioner has put in total length of service of 10 years 6 months and 14 days. It was also admitted by the respondent that after the formation of the Transport Corporation he was permanently absorbed in Pallavan Transport Corporation Limited on 1.5.1975 and unfortunately, he expired on 15.4.1980 while in service. It is also not in dispute that the petitioner has put in total length of service of 10 years 6 months and 14 days. However, if his leave on loss of pay, namely, 10 months and 3 days are excluded, the net qualifying service of the petitioner's husband has come to 9 years 8 months and 11 days. Therefore, the respondent by G.O.Ms.No.42, Transport Department, dated 27.05.2005 while arriving the net qualifying service by applying G.O.Ms.No.1028, Transport Department, dated 23.9.1985 read with G.O.Ms.No.378, Finance Department, dated 18.04.1975 and G.O.Ms.No.284, Finance Department, dated 31.3.1980 wrongly came to the conclusion that the period of daily paid service, namely, from 9.10.68 to 1.10.69 should be excluded while arriving the net qualifying service. The said approach adopted by the respondent corporation is not acceptable for the reason that the petitioner's husband's half of the daily paid service is deserved to be counted in the light of G.O.Ms.No.408, Finance(Pension)Department, dated 25.08.2009 which says that half of the Non-Provincialised service on consolidated pay, honorarium pay and on daily wages of the employees who were absorbed or regularized prior to 01.04.2003 shall be counted for calculating pensionable service. Therefore, even if this Court accepts the calculation of the respondent that the petitioner's husband has put in net qualifying service of 9 years 8 months and 11 days, if half of the daily wage period from 09.10.1968 to 1.10.1969 is taken into account, the petitioner's husband has put in more than 10 years of service, namely 10 years 1 month and 11 days. Therefore, it appears that the petitioner's husband was entitled to get pension had he been alive. Whileso, the denial of family pension to the petitioner is absolutely unfair and unjustified in the light of Rule 49(1) and (2)(a) as noted above, inasmuch as the language of the Rules 49(1) and 2(a) clearly states that without prejudice to the provisions contained in sub-rule (3) where a Government servant dies after completion of not less than one year continuous service, the family pension shall be payable to the family of that Government servant. In other words, a Government Servant,(covered by Tamil Nadu Pension Rules) who is not legally entitled to get pension in his life-time even if he has put in more than 9 years of service but below 10 years of service, will help his family to get 'family pension' if he dies after putting in minimum one year of continuous service. 5. Therefore, this Court directs the respondent to pay the family pension to the petitioner forthwith including the arrears after adjusting any due payable by the petitioner's husband towards legal share. The said exercise shall be done within a period of 12 weeks from the date of receipt of a copy of this order. 6. Accordingly, W.P.No.8129/2012 is allowed. No costs.