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2002 DIGILAW 1299 (RAJ)

Sinokhi v. Union of India

2002-07-26

SHIV KUMAR SHARMA

body2002
JUDGMENT 1. - The late husband of the petitioner came to be enrolled in Army in the Corps ASC (MT) on February 2, 1942 and was invalided out of service with effect from August 10, 1945, after rendering 3 and a half years satisfactory service, the disease called 'Pielirisy Effusion', by which the late husband of the petitioner was suffering was accepted as attributable to Military Service and he was granted disability pension by the Chief Controller of Defence Accounts (Pension), Allahabad vide order No. 2 PPO No. 8030/64. The Officer Incharge, ASC Records (MT), Bangalore vide letter dated June 20, 1990 revised the service and disability element of the late husband of the petitioner to the tune of Rs. 375/- and Rs. 90/-. This fact was affirmed by the Treasury Officer, Churu vide order dated July 9, 1990. 2. Resurvey Medical Board of the late husband of the petitioner was arranged by the Officer Incharge, ASC Records (MT), Bangalore at Military Hospital, Jaipur to consider grant of disability pension beyond November 5, 1990. Vide order dated February 6, 1991 the Medical Board Proceedings were submitted in regard to late husband of the petitioner stating therein that composite percentage of all IDs accepted 20% and 6.10%. The husband of the petitioner died on October 9, 1991. 3. The petitioner submitted a claim for grant of family on the death of husband. The claim of petitioner was granted and she was paid Rs. 2,056/- vide order dated February 4, 1992. 4. The Officer Incharge, ASC Records (MT), Bangalore vide order dated March 12, 1993 informed the petitioner that her claim for grant of ordinary family pension has been rejected by the Chief Controller of Defence Accounts (Pension), Allahabad (UP), further stating therein that the late husband of the petitioner was not entitled to any disability pension w.e.f. November 6, 1990. Therefore, the case was closed. On representation the Officer Incharge, ASC Records (MT), Bangalore clarified that the disability pension and service elements have been sanctioned in favour of her husband only upto November 5, 1990 and any payment made to petitioner was unauthorised and her claim for ordinary family pension was not admissible under the existing rules. 5. Therefore, the case was closed. On representation the Officer Incharge, ASC Records (MT), Bangalore clarified that the disability pension and service elements have been sanctioned in favour of her husband only upto November 5, 1990 and any payment made to petitioner was unauthorised and her claim for ordinary family pension was not admissible under the existing rules. 5. The DGST, Army Headquarter vide order dated March 10, 1995 intimated the petitioner that on examination of her petition it was found that the disability pension granted to her husband was discontinued w.e.f. November 6, 1990 as the same was reassessed less than 20% permanently. Since the husband of the petitioner died on October 9, 1991 i.e. after discontinuation of the disability pension, therefore, she was not eligible for grant of family pension. 6. Aggrieved by the order dated March 10, 1995 the petitioner served a notice for demand of justice and no justice was done to her, therefore, she instituted the instant writ petition. 7. I have heard Mr. R.S. Bhadauria, learned counsel appearing for the petitioner and Mr. Vijay Singh, learned counsel appearing for the respondents, and carefully scanned the material on record. 8. Army Instructions No. 4/S/75 issued by notification dated December 19, 1975 provides thus:- "Where an individual is invalided out of service before completion of his prescribed engagement/service limit on account of a disability which is attributable to or aggravated by military service and is assessed below 20 percent, he will be granted an award equal to service element of disability pension determined in the manner given in Regulation 183 Pension Regulations for the Army, Part I (1961), read with Appendix A to A11/S/75. This benefit will also be allowed in all cases where an individual is granted disability pension but whose degree of disablement subsequently falls below 20 percent." Concurrence of the Government in the (sic)" 9. Allahabad High Court in Ram Roop Singh v. Union of India and others, 1995(III) Current Service Journal 49 , in para No. 13, 14 and 15 indicated thus : "13. I find sufficient force in the contention of the learned counsel for the petitioner. The Supreme Court while examining the validity of Ministry of Finance Memorandum No. F-19(3). Allahabad High Court in Ram Roop Singh v. Union of India and others, 1995(III) Current Service Journal 49 , in para No. 13, 14 and 15 indicated thus : "13. I find sufficient force in the contention of the learned counsel for the petitioner. The Supreme Court while examining the validity of Ministry of Finance Memorandum No. F-19(3). EV 79, dated 25.5.79 and Ministry of Defence Memorandum No. B/40725/AG/P34-C/1816/AD (Pension), dated 28.9.1979 in the case of D.S. Nakara held that classification of pensioners who retired subsequent to that date was arbitrary and violative of Article 14 of the Constitution. It further observed that the date of retirement for the purpose of payment of liberalised pension was not a relevant factor when a revised formula for computation of pension was introduced and made effective from a particular date. It further held that there was no intelligible differentia between the persons who retired prior to that date and those who retired after that date. The Supreme Court relied on its earlier judgment in the case of Ram Krishna Dalmia v. S.R. Tendolkar, AIR 1958 SC 538 and further emphasised that classification on the basis of the date of retirement was wholly illegal and violative of Article 14 of the constitution. 14. The facts of the present case and those in the case of D.S. Nakara bear similarity. Respondents have failed to show any distinguishing feature for not giving the benefit of above mentioned Army Instruction to the petitioner which has been denied to him simply for the reason that the petitioner had retired prior to 1.1.1973. Learned counsel too was at his wits end in finding out any distinguishing feature to support the date fixed in the Army Instruction and save it from the vice of arbitrariness and unreasonable classification, which is forbidden by the Constitution under Articles 14 and 16. In my opinion, persons boarded out of army service for reasons wholly attributable to army service prior to 1.1.1973 and those boarded out for the same reasons after 1.1.1973 do not constitute different classes so as to justify applicability of the Army Instruction No. 4.5.75 dated 19.12.1975 to only those who are boarded out from active army services after that date. The Army Instruction dated 19.12.75, therefore, applied to all covered by it whether retired before or after 1.1.1973. 15. The Army Instruction dated 19.12.75, therefore, applied to all covered by it whether retired before or after 1.1.1973. 15. All those boarded out from the service for the same reason after or before that date fall in the same class and bear similarity to each other and, therefore, their classification for the purpose of payment of pension is not justified on the basis of the date of retirement which has no relation to the object of payment of pension which is sought to be achieved in the aforesaid Army Instruction. I, therefore, hold that the date (1.1.1973) fixed for the applicability of the Army Instruction No. 4.5.75 dated 19th December, 1975 is violative of Article 14 of the Constitution and is, therefore, liable to be quashed. I, therefore, quash the penultimate sentence in para 1 of the Army Instruction No. 4.5.1975 dated New Delhi, December 19, 1975 which is to the following effect : "These orders will take effect from 1st January 1973, i.e. these will apply to all those who were on the effective strength of the Army on that date and who become non-effective thereafter." and direct that the said Army Instruction shall be applicable to all army personnel covered by it regardless of the date of their retirement." 10. Evidently Army Instruction No. 4/5/75 dated December 19, 1975 which contains the sentence "These orders will take effect from 1st January 1973, i.e. these will apply to all those who were on the effective strength of the Army on that date and who became non-effective thereafter" was found violative of Article 14 of the Constitution and a direction was issued that the said Army Instruction shall be applicable to all army personnel covered by it regardless of the date of their retirement. 11. In the instant case the disease suffered by the late husband of the petitioner during and in the course of service was attributable to military service, as such the late husband of the petitioner was fully entitled to disability pension and service elements and the petitioner is entitled to ordinary family pension. 12. In the result, the writ petition stands allowed. The respondents are directed to allow the petitioner ordinary family pension according to rules. The compliance of the order shall be made within 90 days. The parties shall bear their own costs.Petition allowed. *******