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2007 DIGILAW 790 (DEL)

DARBAG SINGH YADAV v. UNION OF INDIA

2007-04-19

S.N.AGGARWAL, T.S.THAKUR

body2007
T. S. THAKUR, J. ( 1 ) LATE Sepoy Udai Singh serving in the 13 Kumaun Regiment laid down his life in Kargil operation on 7. 9. 1999. The petitioner who happens to be the elder brother of the deceased Sepoy appears to have made a claim for payment of death-cum-retirement gratuity, ex-gratia Central Govt. and liberalised family pension. All these claims were examined by the Govt. of India and rejected in terms of a communication dated 17. 9. 2003. A reading of the said communication would show that claims made by the petitioner were declined on the ground that there was no provision for granting the same to brothers and sisters who are over 24 years of age. The communication states that since the petitioner has already crossed 33 years of age, he was not entitled to the grant of the said benefits. Aggrieved, the petitioner has filed the present writ petition challenging the said communication and for directions for payment of the amounts mentioned above. ( 2 ) WE have heard learned counsel for the parties and perused the record. It is not in dispute that the deceased Sepoy had nominated the petitioner for purposes of payment of DCRG. That such a nomination could be validly made is evident from Para 4 (ii) of Army Instructions No. 8/s/70 by which death-cum-retirement gratuity scheme was introduced for the Army personnel. Para 4 of the said instructions deals with nomination of persons for payment of death-cum-retirement gratuity and specifically provides that if an individual has no family, the nomination may be made in favour of a person or persons, or a body of persons, corporate or incorporate. Para 4 (ii) of the scheme may be extracted at this stage :-"if the individual has no family, the nomination may be made in favour of a person or persons, or a body of persons, corporate or incorporate. " para 7 (a) of the Scheme makes it obligatory for the authority to disburse the death-cum-retirement gratuity to a person or persons on whome the right to receive the same has been conferred by means of a valid nomination. Para 7 (a) reads as under:- "the death-cum-retirement gratuity, after a reduction where applicable, as provided in para 2 (d) above, shall be paid to the person or persons on whom the right to receive the gratuity is conferred by means of a valid nomination. Para 7 (a) reads as under:- "the death-cum-retirement gratuity, after a reduction where applicable, as provided in para 2 (d) above, shall be paid to the person or persons on whom the right to receive the gratuity is conferred by means of a valid nomination. " ( 3 ) IN the light of the above, we find it difficult to appreciate how the petitioner who was a validly nominated person for receiving the death-cum-retirement gratuity could be denied the said benefits only on the ground that he had crossed the age of 24 years. ( 4 ) THAT brings us to the question whether the petitioner was entitled to the other benefits like ex-gratia (Centre and liberalised family pension)claimed by him. In support of his claim, the petitioner places reliance upon regulation 217 of the Pension Regulations for the Army which reads as under :- "an ex-gratia award may be sanctioned to foster parents or a step child of an individual whose death takes place in the circumstances mentioned in regulation 213, subject to the condition that the claimant was largely dependent on the deceased for support at the time of death and is in pecuniary need. An award under clause (1) above shall not be made if a special family pension is admitted to a member of the family specified in regulation 216. " ( 5 ) IT is contended on behalf of the petitioner that the right to receive ex-gratia (Central Govt.) was available not only to the minor brother/sister of an individual whose death takes place in the circumstances mentioned in Regulation 217 but also to his foster parents provided the foster parents were dependent on the deceased or the claimant was left destitute after the death of the earning Army personnel. He submitted that the expression 'foster Parents' not having been defined in the regulation, there was no reason why a liberal interpretation upon the said expression should not be placed so as to include an elder brother of the deceased Army personnel especially when the elder brother and his wife may have brought up the deceased Sepoy as was the position in the present case. ( 6 ) ON behalf of the respondents it was, on the other hand, submitted that the petitioner had at no stage made any claim for liberalised family pension in their capacity as foster parents of the deceased Sepoy. ( 6 ) ON behalf of the respondents it was, on the other hand, submitted that the petitioner had at no stage made any claim for liberalised family pension in their capacity as foster parents of the deceased Sepoy. The government, therefore, had no occasion to examine whether the brother of the deceased or his wife could be treated as foster parents of the deceased Sepoy. The respondents were not, however, averse to the petitioner making a claim for release of the said benefits in a representation addressed to the Secretary, ministry of Defence in which he would even make a claim that he and his wife were the foster parents of the deceased and were financially dependent upon him or that they have been left destitute after his death. Such a representation, if made, could be considered by the respondents and appropriate orders passed under intimation to the petitioner. ( 7 ) WE see no reason to decline the course of action suggested by learned counsel for the respondents especially when the question whether the petitioner and his wife could be treated as foster parents of the deceased Sepoy has never been examined by the Government at the appropriate level nor has the government taken any decision in that regard. That apart, if a representation is made to the Government and a final order on the same regarding the admissibility of the claim is passed, the Writ Court shall have the advantage of the views of the Government on the subject before taking a final decision in the matter. In the result, we allow this petition but only in part and to the following extent:- 1. The respondents shall release in favour of the petitioner the death cum retirement gratuity benefits due to him as nominee of the deceased Sepoy Udai singh. The needful shall be done expeditiously but not later than three months from today. 2. The petitioner may make an appropriate representation to the Central government claiming ex-gratia (Centre) and liberalised family pension on account of death of Sepoy Udai Singh in his capacity as the foster parent of the deceased. In case such a representation is made within two months from today, the Govt. shall examine and pass orders on the same expeditiously but not later than six months from the date the representation is received. In case such a representation is made within two months from today, the Govt. shall examine and pass orders on the same expeditiously but not later than six months from the date the representation is received. The writ petition is accordingly disposed of with no order as to costs.