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2008 DIGILAW 794 (PNJ)

Sarup Devi v. Union Of India

2008-03-28

HEMANT GUPTA, MOHINDER PAL

body2008
Judgment Hemant Gupta, J. 1. The petitioner, wife of Late Havildar Badlu Ram, has invoked the extraordinary writ jurisdiction of this Court for issuance of a direction to the respondents to revise the War Injury Pension in respect of her husband from 24.04.1946 to 25.10.1988 and to sanction and release family pension to the petitioner w.e.f. 26.10.1988. 2. It is the case of the petitioner that her husband joined 15 Punjab Regiment on 25.09.1937 in good health. He was seriously wounded and sustained severe head injury on 12.01.1944 while fighting against the enemy forces and in recognition of his gallantry act, he was awarded Jangi Inaam by the Government of India. The husband of the petitioner was invalidated out of army service on 23.04.1946 and was awarded War Injury Pension at the rate of Rs. 10/- per month which he received till his death on 25.10.1988. 3. The petitioner claims that such War Injury Pension is required to be revised from time to time but. During the course of hearing, petitioner restricted her claim for grant of Family Pension after the death of her husband on 25.10.1988. Learned counsel for the petitioner has relied upon Army Instruction 51 of 1980, Annexure P- 2, contemplating Family Pension admissible to the families of the Armed Forces Personnel who were in service on 01.01.1964 or who joined service thereafter and who died while in service or after retirement with retiring, disability or invalid pension/ special pension on account of causes which are neither attributable to nor aggravated by service. Learned counsel for the petitioner also relied upon the provisions of Family Pension Scheme, 1964 , wherein family pension is contemplated to be payable to a Government servant entering service in pensionable establishment on or after the 1 st January, 1964 and to a Government servant who was in service on the 31st December, 1963, and came to be governed by the provisions of the Family Pension Scheme dated 31st December 1963. 4. In reply, it has been pointed out that the husband of the petitioner was released from the Army and not invalidated out under the provision of Para 318 of Regulation (Part II) 1940. 4. In reply, it has been pointed out that the husband of the petitioner was released from the Army and not invalidated out under the provision of Para 318 of Regulation (Part II) 1940. It is pleaded that the deceased husband of the petitioner was not entitled to pension as he has rendered service of less than 10 years nor disability pension/war injury pension as he was not invalidated out of service on account of disability or was injury. It has been further pleaded that the petitioner has been granted gratuity as per Jat Regiment Long Roll. It has been pointed out that had the deceased been eligible for pension, the gratuity would not have been paid to him. It was further pleaded that the husband of the petitioner during his life time has not sought pension as the fact regarding non-admissibility for grant of any type of pension might have been conveyed during the year 1946. It was also pointed out that service documents have been destroyed after expiry of their period of retention and respondents have nothing to put forth in their defence at this stage. It was further pointed out that Army Instructions 51/80 stipulated that family pension benefits would be admissible to the families of the armed forces personnel who were in service on 1st January, 1964 or who joined/join service thereafter and who died/die while in service. The ordinary family pension to the families of the armed forces personnel who retired or died before 1st January, 1964 had been made admissible vide Government instructions dated August 08, 1985. Since the husband of the petitioner was not drawing any type of pension at the time of his death, therefore, no family pension is admissible to the petitioner. In respect of Jangi Inaam, it was submitted that this benefit is admissible to one life only in terms of notification dated 18-05-1995 and no benefits are admissible to the petitioner consequent to the death of her husband. The said notification has been appended as Annexure R-2. 5. The claim of the petitioner is based upon Army Instructions 51 of 1980 or Family Pension scheme, 1964. Army Instruction 51 of 1980 is applicable to the families of the armed forces personnel who were in service on 1.1.1964 or who joined/join service thereafter. The said notification has been appended as Annexure R-2. 5. The claim of the petitioner is based upon Army Instructions 51 of 1980 or Family Pension scheme, 1964. Army Instruction 51 of 1980 is applicable to the families of the armed forces personnel who were in service on 1.1.1964 or who joined/join service thereafter. Since the husband of the petitioner was not in service on 1.1.1964, in terms of such Army Instructions, the petitioner cannot claim any family pension. Almost on similar lines is Family Pension Scheme, 1964 . Therefore, the claim of the petitioner on the basis of said Scheme is not sustainable. 6. The respondents have referred to notification dated 08.08.1985 in respect of ordinary family pension to the families of the armed forces personnel who retired or died before 1st January, 1964 but such pension is payable only if pension was paid to the deceased personnel. Since the deceased husband of the petitioner was not in receipt of any pension, the petitioner is not entitled to family pension under any Scheme. 7. Learned counsel for the petitioner has placed reliance upon judgment of the Honble Supreme Court reported as Poonamal (Smt.) etc vs. Union of India and others, 1985(2) Services Law Reporter 537 to contend that the petitioner as dependent of the deceased soldier who died prior to 1.1.1964 is entitled to family cension. However, the said judgment is of no help to the petitioner. In the aforesaid jagment, the anomaly created on account of circular dated September 22, 1977, whereby the contributory scheme creased to exist, was rectified. It was held that all the defendants would be entitled to family pension irrespective of the fact whethere they have opted for contribution in terms of circular dated 22.09.1977 or not. There is no order in respect in respect of payment of family pension to the dependants of the deceased government servant who died prior to 1.1.1964. Therefore, the aforesaid judgment is of no help to the petitioner. 8. Consequently, we do not find any merit in the present writ petition and the same is hereby dismissed.