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Rajasthan High Court · body

2005 DIGILAW 2011 (RAJ)

Teeja Devi v. Union of India

2005-08-02

SHIV KUMAR SHARMA

body2005
Judgment Shiv Kumar Sharma, J.-The petitioner, who is widow of late GDSM Kalu Ram, claims family pension, in the instant writ petition. 2. The undisputed facts are that late husband of petitioner GDSM Kalu Ram was enrolled in the Brigade of Guards on November 17, 1969 and was invalided out of service with effect from April 22, 1972 by a Medical Board. His disability was accepted as attributable to the military service, therefore, granted disability pension under CCS Pension Rule 38, vide pension payment order No. D/1079/72. The pension of husband of petitioner stepped upto Rs. 375/-. Late GDSM Kalu Ram was called for medical board and his disability was re-assessed less then 20%, therefore, disability pension was stopped w.e.f. October 16, 1988. But Kalu Ram was not informed about the decision and as such he was debarred from the right of appeal within six months. However, the deceased was drawing service elements @ Rs. 375 plus D.R. from the Bank till he expired by the same disease on July 31, 1995. The information of death was sent, accordingly the pension claim was completed. As such the husband of petitioner has been paid disability pension upto October 16, 1988 and service pension upto July, 1995. The claim of family pension was submitted to the CCDA (P) Allahabad. The petitioner was informed vide order dated July 4, 1997 that the disability pension was stopped, therefore, the service element is also stopped and as such the petitioner is not entitled for the family pension. 3. The respondents in the return submitted that late GDSM Kalu Ram was invalided out under Item III (iii) Rule 13, Army Rule, 1954 for the disease Pulmonary Tuberculosis (011) w.e.f. April 22, 1972. The disability was assessed by the Medical authorities 40% for two years from October 17, 1988. At the time of re-survey on July 9, 1988 the disability was assessed less than 20% hence temporary disability pension discontinued from October 17, 1988. Vide letter dated October 10, 1988 Kalu Ram informed about the decision. Since, the deceased pensioner was not in receipt of service/disability pension at the time of death and his army service was less than 5 years hence no family pension was admissible to the widow. 4. I have pondered over the rival submissions and carefully scanned the material on record. 5. Since, the deceased pensioner was not in receipt of service/disability pension at the time of death and his army service was less than 5 years hence no family pension was admissible to the widow. 4. I have pondered over the rival submissions and carefully scanned the material on record. 5. Army Instruction 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 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 AI 1/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?) 6. Allahabad High Court in Ram Roop Singh vs. Union of India & Ors., 1993 (III) Current Service Journal 49, in Paras 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 25.05.1979 and Ministry of Defence Memorandum No. B. 40725/AG/P34-C (1816/AD (Pension), dated 28.09.1979 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 vs. S.R. Tendolkar, AIR 1958 SC 538 and further emphasised that the 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. 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 01.01.1973. 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 01.01.1973 and those boarded our for the same reasons after 01.01.1973 do not constitute different classes so as to justify applicability of the Army Instruction No. 4/S/75 dated 112.1975 to only those who are boarded out from active army service after the date. The Army Instruction dated 112.1975, therefore, must be applied to all covered by it whether retired before or after 01.01.1973. 15. Allthose 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 (01.01.1973) fixed for the applicability of the Army Instruction No. 4/S/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/S/75 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 became 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.“ 7. Evidently Army Instruction No. 4/S/75 dated December 19, 1975 which contain 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. 8. In the instant case the disease suffered by the petitioner during and in the course of service was attributable to military service, as such the petitioner was fully entitled to disability pension and service element. In the instant case the judicial pronouncement granting service element of pension to all ex-servicemen irrespective of their date of retirement came to be pronounced during 1992 in the case of Ramroop Singh vs. Union of India, reported in 1993 (III) CSJ (HC) 49 (Allahabad). Therefore the relief sought by the petitioner cannot be denied. 9. As already noticed the policy decision was taken during 1975 that person whose disability pension has been reduced below 20% and resultantly their disability pension had been discontinued shall be granted service element of pensions for life if the disability in question was attributable to military service or aggravated thereby irrespective of length of service. However, this decision was made effective from January 1, 1973 onwards and the persons retired prior to this cut off date were deprived of such concession. This aspect of cut off date came to be examined judicially in the case of Ramroop Singh vs. Union of India (Supra), and it was held that all ex-servicemen shall be entitled to pensionary benefits regardless to their date of retirement. Ratio indicated in Ramroop Singh vs. Union of India (Supra), is squarely applicable to the facts of the instant case. Further the respondents did not inform the husband of the petitioner about discontinuance of the disability pension. Since, the husband of petitioner was entitled for the pensionary benefits, the petitioner is entitled for family pension. 10. For these reasons, I allow the writ petition and direct the respondents to grant the petitioner the benefits of family pension from the date of death of her husband i.e., July 31, 1995. Since, the husband of petitioner was entitled for the pensionary benefits, the petitioner is entitled for family pension. 10. For these reasons, I allow the writ petition and direct the respondents to grant the petitioner the benefits of family pension from the date of death of her husband i.e., July 31, 1995. The respondents are directed to comply with the order within ninety days from the date of receipt of copy of this order. The parties shall bear their own costs.