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2003 DIGILAW 87 (HP)

KAMLA DEVI v. UNION OF INDIA

2003-04-28

KAMLESH SHARMA

body2003
JUDGMENT Kamlesh Sharma, J. (Oral) - The petitioner is the widow of one late Shri Ishwar Singh, who was enrolled in the Army, Armoured Corps on 8th March, 1967. He was invalidated out of service due to chronic duodenal ulcer. He was granted the disability pension from 1.6.1969 to 27.10.1986. After the boarded out from the Army, the petitioner was re-employed in H.P. State Electricity Board. He died on 4th November, 1995 while in service. 2. The petitioner applied to the Army for family pension, which was denied to her vide letter dated 7th February, 1991 (Annexure P-7) on the ground that she was already in receipt of family pension from H.P. State Electricity Board, where her late husband was employed. Thereafter, she gave legal notice on 14th February, 1992 (Annexure P-10) to the respondents. The respondents sent their reply on 14th July, 1992. Para 2 of the reply states:- "The case has been examined in consultation with the legal authorities concerned, who have opined that:- As per Regulation 222 of PRA Pt I (1961), as amended, a widow is eligible for two pensions, i.e. Special Family Pension and Ordinary Family Pension provided both pensions are not in respect of the same person. Hence widow is not eligible for two pensions under the said rule. She is already, in respect of Family Pension from civil side. The legal, notice submitted by the widow lacks substance and is advised to be ignored. The case may be defended, if filed." 3. After hearing learned Counsel for the parties and going through the record, this Court finds that Para 222 of Pension Regulations for the Army Part I provide for grant of family pension to an individual in receipt of another pension from Government or in Government employment. It is:- "222. (a) Family Pension will not normally be granted if and for so long as an individual is in Government employment or is in receipt of another pension from Government. If, however, the pay of the appointment or the pension is less favorable than the family pension admissible under these regulations, the following provisions shall apply:- (i) Where the individual is in Government employment. -Half the family pension normally admissible; shall be paid. Fully family pension shall be payable on termination of appointment subject to clause (c). (ii) Where the individual is in receipt of a pension under the Armed Forces regulations. -Half the family pension normally admissible; shall be paid. Fully family pension shall be payable on termination of appointment subject to clause (c). (ii) Where the individual is in receipt of a pension under the Armed Forces regulations. - It shall be held in abeyance for a long as family pension is payable. The amount, if any, paid on account of the lesser pension, from the date from which the grant of family pension takes effect shall be adjusted accordingly. (iii) Where the individual is in receipt of. a pension under the civil rules. - The amount of family pension admissible under these Regulations shall be abated by the amount of such pension. (b) Where, however, the pecuniary circumstances of a claimant in receipt of another pension are such that the operation of clause (a) is likely to cause genuine distress, the case shall be submitted for the orders of the Government; (c) The provisions of this Regulation shall, also be applicable when the recipient of a family pension is, subsequently, employed under Government or granted another pension from Government." 4. The perusal of this Para shows that there is no complete bar for grant of family pension if an individual is already in receipt of another pension. However, some riders have been put. In Para 222 (a)(ii) it is provided that if an individual is in receipt of a pension under the civil rules, the amount of family pension shall be abated by the amount of such pension. The amount of civil pension, if-lesser than Army pension, shall be adjusted in the Army pension. This provision applies in the case of the petitioner. 5. Learned Counsel for the petitioner states that she is getting an amount of Rs. 1310/- as pension from the HP. State Electricity Board, whereas she is entitled to family pension of Rs. 1810/-. If it is so, under Para 222(a) her family pension will be fixed and the pension granted to her under the civil rules will be adjusted and she will be paid the difference between them This interpretation is further fortified by sub-para (b), which provides that where the pecuniary circumstances of a claimant in receipt of another pension are such that the operation of clause (a) is likely to cause genuine distress, the case shall be submitted for the orders of the Government. Such orders can presumably will be for relaxation of Clause (a) looking to the financial condition of the pensioner. Otherwise also, an individual entitled to family pension cannot be put to disadvantage that he was re-employed in the civil. The pension under the civil rules is given for the services rendered by an individual in the civil employment, whereas, family pension or special family pension in the Army is given for the services rendered by that individual in the Army. Therefore, by denying family pension or special family pension for the services rendered in the Army an individual cannot be put to disadvantage for the reasons that he was re-employed on the civil employment. 6. In the result, the petition is allowed and the respondents are directed to consider the papers of the petitioner and grant her family pension in accordance with Rules within a period of four months. However, her family pension will be adjusted to the extent of the amount of pension from the H.P. State Electricity Board as provided under Regulation 222(a) (ii). No order as to costs.