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2006 DIGILAW 2763 (RAJ)

Union of India v. Amrit Kaur

2006-09-19

AJAY RASTOGI, S.N.JHA

body2006
JUDGMENT 1. 1. This special appeal is directed against the order of the learned Single Judge dated 28.7.2005 allowing the writ petition of the respondent with direction to the appellants to grant dependent family pension to her. 2. Facts of the case are not in dispute. Briefly stated, on the death of Col. Abinder Singh of the Engineering Corps of the Indian Army on 19.7.1999, dependent family pension was sanctioned in favour of his widow Ranjeet Kaur vide PPO No. 269/99. However, before the sanction could take effect, Ranjeet Kaur died on 26.9.1999. After her death, family pension was sanctioned in favour of the elder son Harjinder Singh vide PPO No. M/F/323/99, dated 28.12.1999 with effect from 27.9.1999. Harjinder Singh was then a cadet in the National Defence Academy, Khadgvasla. On his getting commission in the Army another order was issued allowing family pension in favour of the younger son Tejinder Singh vide PPO No. M/F/H2/2002 dated 28.5.2002. Tejinder Singh was also later commissioned in the Army in June, 2004, where after family pension was stopped. The respondent, mother of Col. Abinder Singh submitted claim for family pension which was rejected by letter dated 3.2.2003 observing that dependent family pension is admissible to parents "where officer dies as a bachelor or as a widower without children". The respondent in these circumstances approached this Court seeking direction for payment of family pension to her. As pension had been denied because of the provisions of Regulation 85(1) of the Pension Regulations, she also made prayer to strike down the provision. 3. Observing that Regulation 85 so far as it excludes the mother from claiming family pension is in conflict with the provisions of Hindu Succession Act which places the mother at par with children or widow of her deceased son and there cannot be any disparity amongst class I heirs, the learned Single Judge struck down the provision so far as it disentitles the mother to dependent family pension. The learned Single Judge held that the provision intends to make class legislation without any reasonable basis and the same is forbidden by Articles 14 and 21 of the Constitution of India. The learned Single Judge accordingly allowed the writ petition with a direction to the appellants to accord dependent family pension to the respondent from the date of commissioning of Tejinder Singh. 4. We heard counsel for the parties at length. The learned Single Judge accordingly allowed the writ petition with a direction to the appellants to accord dependent family pension to the respondent from the date of commissioning of Tejinder Singh. 4. We heard counsel for the parties at length. Though we do not subscribe to the observations of the learned Single Judge regarding Regulation 85 of Pension Regulations being in conflict with the provisions of Hindu Succession Act, for reasons mentioned hereinafter, we find no reason to pass a different order so far as the claim of the respondent is concerned. We indeed do not find any conflict between Regulation 85 and the Hindu Succession Act.Regulation 85 of the Pension Regulations runs as under: "85. A special family pension may be granted to the family of an officer if his/her death was due to or hastened by a wound, injury or disease which was attributable to military service or the aggravation by military service of a wound, injury or disease which existed before or arose during military service provided that (a) In the event of death after retirement, the officer did not retire voluntarily and provided further that: (b) In the case of widow and children:- WIDOW (i) obsolete (ii) obsolete (iii) subject to any exception which the President may approve in a particular case under regulation 90, the widow was not separated from her husband at the time of his death. (iv) The widow has not re-married. This condition shall, however, not apply if the widow has re-married the real brother of her deceased husband and continues to live a communal life with and/or contributes to the support of the other living eligible member, and CHILDREN (i) The officer left no widow. (ii) They were born before retirement or invalidment or death while in service. (iii) Sons below the age of 25 years. (iv) Unmarried daughters below age of 25 years. (c) In the case of pension for PARENTS (i) The officer left neither a widow nor children eligible for special family pension. (ii) The parent/parents was/were largely dependent on the officer for support and are in pecuniary need. (iii) In the case of widowed mother she has nor re-married. Provided that the widowed mother of an officer who re-marries during the life time of the officer but becomes widow again before his death, shall become eligible for grant of dependent pension. (ii) The parent/parents was/were largely dependent on the officer for support and are in pecuniary need. (iii) In the case of widowed mother she has nor re-married. Provided that the widowed mother of an officer who re-marries during the life time of the officer but becomes widow again before his death, shall become eligible for grant of dependent pension. (d) In the case of pension for brothers/sisters. A note has been appended to the regulation which states that special family pension and dependents pension shall be admissible to the members specified hereunder- (a) Widow/Widower, lawfully married, (b) Son, actual and legitimate (including validly adopted), (c) Daughter actual and legitimate (including validly adopted), (d) father, (e) mother, (f) Brother and (g) Sister. From a bare reading of the above provisions it is manifest that parents are not excluded from the benefit of dependents pension. The regulation lays down the order or sequence in which the heirs/legal representatives of the .deceased officer can be granted pension. Whereas widow comes first in the line, to the exclusion of the children and the rest, where the officer has not left behind any widow, the children become entitled to pension. Where neither widow nor children eligible for pension are available, the parents are entitled. The only rider is that he/they should be "largely dependent" on the officer for support and "are in pecuniary need". 5. The learned Single Judge has referred to a notification issued by the Ministry of Defence under letter dated 24.11.1999 and it may be useful to notice the same. The notification states that family pension will be admissible subject to the following conditions: (a) that the parents were wholly dependent on the Armed Forces Personnel when he/she was alive; (b) that the Armed Forces Personnel has not left behind a widow/widower, eligible son or daughter of a widowed/divorced daughter, who will have a prior claim to Family Pension in the order indicated; and (c) that the family pension wherever admissible to parents, the mother will receive the pension first and after her death the father will receive the family pension. 6. It is thus clear that the widow has prior claim to the exclusion of the children and the rest while the children have prior claim vis-a-vis the parents and the rest. The parents come next in line. 6. It is thus clear that the widow has prior claim to the exclusion of the children and the rest while the children have prior claim vis-a-vis the parents and the rest. The parents come next in line. In this view of the matter we do not think, the learned Single Judge was justified in taking the view that Regulation 85 is in conflict with the Hindu Succession Act and it, therefore, deserves to be struck down. 7. Adverting to the instant case, from the admitted facts briefly mentioned hereinabove, it is clear that after Tejinder Singh, the younger son of Col. Abinder Singh, the deceased officer, got commission in the Indian Army, the respondent became entitled to grant of dependent family pension. 8. The position would have been different if pension is granted only once - as a one time measure, that is to say, if pension once granted - either to the widow or the children - lapses on the death of the pensioner, or the pensioner becomes ineligible such as by becoming self dependent as in the instant case, the next-in-line would not get pension. However, it is apparent that the grant of family pension is not a one time measure. Counsel for the respondents fairly stated that the grant is not a one time grant. As a matter of fact, as seen above, pension was sanctioned firstly in favour of the widow vide PPO no. 269/1999, and after she died, a fresh pension payment order was issued in favour of the elder son and thereafter in favour of the younger son. If the benefit of family pension is to be passed on to the next-in-line, there can be no justification to deny the benefit to the respondent after the death of the widow and the grant of commission in the Army to two sons. The ground assigned in the letter under reference dated 3.2.2003 (supra) that dependent family pension is admissible to parents where the officer dies as a bachelor or as a widower without children was totally misconceived and untenable. 9. A vague attempt was made on behalf of the appellant to persuade us to think that the respondent was not dependent on her son. The submission has been noticed only to be rejected, for, there is no foundation for making the submission. 9. A vague attempt was made on behalf of the appellant to persuade us to think that the respondent was not dependent on her son. The submission has been noticed only to be rejected, for, there is no foundation for making the submission. There is absolutely no material on record to suggest that the mother was not dependent on her son or that she was not in pecuniary need of the pensionary benefit. It is relevant to mention here that husband of the respondent, Major Gurdev Singh, had died over twenty years ago and in the absence of any material to the contrary, it would be legitimate to infer that she became dependent on her son. 10. We are thus satisfied that the conditions prescribed in the regulation as noticed hereinabove are fully satisfied and, therefore, the conclusion of the learned Single Judge holding the respondent entitled to grant of family pension does not warrant any interference by the Division Bench.In the result, we find no merit in this appeal which is accordingly dismissed.Writ Petition Dismissed. *******