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2024 DIGILAW 293 (HP)

Vayasa Devi v. Bhakra Beas Management Board

2024-04-29

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. Brief facts necessary for the adjudication of this petition are as under:- 2. The husband of the petitioner after, his discharge from Indian Army, joined the respondent-Board initially on daily wage basis and thereafter on regular basis as a Beldar-cum-Chowkidar. After, regularization of his services, he superannuated from the service of the respondent-Board on 31.05.2001. After his discharge from the Indian Army, late husband of the petitioner was getting regular pension from the Army while he was in the service of the respondent-Board. After his superannuation from the respondent-Board, he continued to receive his pension from the Army also as well from the respondents-Board. 3. The husband of the petitioner died on 22.03.2008. The grievance of the petitioner is that after the death of her husband, family pension has not been paid to her by the respondent on the ground that the petitioner is entitled to receive only one family pension and as she was receiving the family pension from Indian Army, therefore, she was not entitled for family pension from the respondent-Board. 4. For completion of facts, it is necessary to mention that in the interregnum, the Government of Punjab took a decision to release family pension in favour of the successors-in-interest of those Ex-servicemen, who after their discharge from army were engaged with the Government of Punjab. This is evident from Annexure R-1/T, English translation whereof is available on record as Annexure R-1/T dated 23.06.2016, which reads as under:- “Defense Service Welfare Department Defense Service Welfare Branch Notification Date 23rd June 2016 No:5/1/13-2RBH/780838-In reference to the meeting of the Cabinet held on 23.05.20 16 and the decision taken. The Governor of the state of Punjab, is pleased to convey his approval for implementation in the state of Punjab, that the widows of those ex-servicemen, who were re- employed in various other govt. department and are receiving family pension from the Govt. of India, will now be entitled to receive two pension's, on the basis of the govt. of India, ministry of defence Notification No: 01(05)/2010D(Pen/Policy),dated 17th January 2013, on the condition that the family pensioner shall not be entitled to receive more than two pensions and any other type of pension. 2. department and are receiving family pension from the Govt. of India, will now be entitled to receive two pension's, on the basis of the govt. of India, ministry of defence Notification No: 01(05)/2010D(Pen/Policy),dated 17th January 2013, on the condition that the family pensioner shall not be entitled to receive more than two pensions and any other type of pension. 2. Necessary approval for this twin pension has been approved by the Department of Finance ( Finance Pension policy and Coordination Branch) through its demi official letter no:3/4/13-3VIPPT/695601/1, dated 24t Feb 2016. 3. This approval has been issued by cabinet through general rule managerial branch (Cabinet Affairs Branch) Demi official letter no: 1/37/2016-1cabinet/2185, dated 25th May 2016. 4. This order shall come into force from the date of the issue of the notification. Chandigarh Date 18.06.2016 K.J.S. Cheema, I.A.S. Secretary, Govt. of Punjab, Defence service Welfare deptt.” This notification was subsequently adopted by the respondent-Board in terms of Annexure R-3, which reads as under:- “Sub:- Regarding grant of dual family pension from Military as well as Civil Employment. Punjab Govt. Defence Services Welfare Department Notification No.5/1/13-2DW/780838 dated 23.06.2016 (copy enclosed) is hereby adopted in BBMB in toto. This issues with the approval of Chairman, Bhakra Beas Management Board.” Thereafter, the family pension is being paid to the petitioner by the respondent-Board and qua this there is no dispute. In other words, as after the adoption of the Punjab Government Defence Services Welfare Department Notification by the respondent -Board vide Annexure R-3, the petitioner is receiving dual family pension i.e. family pension from Indian Army as well as from the respondent-Board. 5. Therefore, as of now, the only moot issue which this Court has to adjudicate is whether the petitioner is entitled for the receipt of the family pension from the respondent-Board, in addition to the family pension, she has received for this period from the Indian Army from the year 2008 i.e. the date of the death of the husband of the petitioner upto 26.09.2016 or not. 6. Learned counsel for the petitioner has submitted that the denial of the dual pension to the petitioner by the respondent-Board is not sustainable in law. 6. Learned counsel for the petitioner has submitted that the denial of the dual pension to the petitioner by the respondent-Board is not sustainable in law. He submitted that when late husband of the petitioner was being paid pension after his death by the respondent-Board, in addition to the pension being paid to him by the Indian Army, there was no justification in the act of the respondent-Board, in discontinuing the family pension to the petitioner, as the family pension which was being received by her from Indian Army was in lieu of the service rendered by her late husband to the Indian Army and the family pension which she was entitled to receive from the respondent -Board was in lieu of the service rendered by her late husband with the respondent-Board. Learned counsel referred to the documents appended with the reply filed by respondent No.3 specially Annexures R-2 and R-3 and submitted that in the light of the said communications also, the petitioner is entitled for relief, as prayed for. 7. On the other hand, learned Senior Counsel appearing for the respondent submitted that as at the time of the death of the husband of the petitioner, there was no rule or instructions, governing the pay of dual pension to the widow etc., of a deceased Ex-servicemen subsequently engaged with the Board, therefore, the act of the respondent-Board of not paying family pension to the petitioner cannot be faulted with. Learned Senior Counsel further submitted that bona fides of the respondent-Board otherwise also are evident from the fact that after the Punjab Government adopted the dual family pension policy, it was adopted by the respondent-Board also in terms of Annexure R-3 and as from the date of the adoption thereof, regular family pension has been paid to the petitioner. Thus, he submitted that as from 2008 to 2016, there was no rule etc., prevailing in the respondent-Board in terms whereof any dual family pension was payable, the present petition being devoid of any merit be dismissed. 8. Learned Senior Counsel also relied upon CWP No.2379 of 2016, titled as Heema Devi versus Chief Engineer Beas, Satlun Link and others to substantiate his contention that the petitioner is not entitled for the relief. 9. I have heard learned counsel for the parties and have also carefully gone through the pleadings as well as the documents appended therewith. 10. Learned Senior Counsel also relied upon CWP No.2379 of 2016, titled as Heema Devi versus Chief Engineer Beas, Satlun Link and others to substantiate his contention that the petitioner is not entitled for the relief. 9. I have heard learned counsel for the parties and have also carefully gone through the pleadings as well as the documents appended therewith. 10. The factual matrix as stands narrated hereinabove is not in dispute. The petitioner has not placed any material on record, from which it can be inferred that as on the date, when the husband of the petitioner died, there was any communication or rule or instructions existing, in terms whereof, dual family pension was payable to persons like the petitioner. However, with the reply that has been filed by the respondent-Board, there are two communications appended, which are of significance. The first is communication dated 17.01.2013, appended with the reply as Annexure R-2 on the subject “Implementation of the Government decision on the recommendations of Committee on the issue related to Defence Service Personnel and Ex-Servicemen-2012 Grant of dual (Two) family pension from Military as well as Civil employment.” 11. In fact this communication, which has been termed as “most important circular” was issued pursuant to the issuance of another communication dated 17.01.2013, which is also appended as Annexure R-2 with the petition, which was also on the following subject:- “Implementation of the Government decision on the recommendations of Committee on the issue related to Defence Service Personnel and Ex-Servicemen-2012 Grant of dual (Two) family pension from Military as well as Civil employment.” In terms of this communication, the Ministry of Defence, Department of Ex-servicemen Welfare, New Delhi, wrote to the Chief of Army Staff, Chief of Naval Staff and the Chief of Air Staff, intimating them that the Government had constituted a Committee of Secretaries headed by Cabinet Secretary, which has recommended that NOK of a pensioner, who gets second employment in the Government after discharge from military service should be entitled to draw two family pensions. It further stood mentioned in this communication that the recommendations of the Committee stood accepted by the Government and the President was pleased to decide that the families of Armed Forces pensioners, who got re-employed in Civil Departments/PSUs/Autonomous bodies/Local Funds of Central/State Governments after getting retired from military service and were in receipt of military pension till death, shall be allowed to draw family pension from military side in addition to the family pension, if any, authorized from the re-employed Civil Department, subject to fulfillment of other prescribed conditions. The communication also mentioned that the provisions of the same shall be applicable to the Armed Forces personnel who got discharged/retired/invalided out from the service with effect from 24th September, 2012 or thereafter. Benefit of these provisions shall also be allowed in past cases, however, the financial benefits shall be granted from 24th September, 2012 only. 12. It is pursuant to this communication that circular dated 17.01.2013 referred to hereinabove was issued. 13. A perusal of these two circulars make it apparent and evident that the Government of India pursuant to the decision taken in this regard by the President of India, ordered that the families of armed forces personnel, who got re-employed in Civil Department etc., were allowed to draw family pension from military side in addition to family pension, if any, authorized from the re-employed Department, who got discharged/retired invalided out of service w.e.f. 24.09.2012 or thereafter and also past cases but by restricting the financial benefit from 24.09.2012. As the case of the petitioner falls in “past cases” because the husband of the petitioner stood discharged from the Indian Army before 17.01.2013, in terms of this notification, at least the right to receive dual pension stood conferred upon the petitioner from 24.09.2012 if not as from the date of death of the husband of the petitioner. The same could not have been delayed thereafter, more so, in light of the fact that the decision of the Government was based on the decision so taken by the President of India, which later on stood adopted firstly by the Government of Punjab and subsequently by the respondent -Board. 14. The same could not have been delayed thereafter, more so, in light of the fact that the decision of the Government was based on the decision so taken by the President of India, which later on stood adopted firstly by the Government of Punjab and subsequently by the respondent -Board. 14. Coming to the judgment relied upon by the learned Senior Counsel for the respondent, having given my careful consideration to the said judgment, as there was no adjudication on merit made therein and the petition was disposed of by the Hon’ble Division Bench by issuance of a direction to the petitioner to approach the respondent-Authority with further direction to the Authority for release of benefits, which stood sanctioned, same has no applicability in this case, as there was no adjudication therein on the issue, which stands raised in this writ petition. As the judgment in issue is a short one, the same is being reproduced hereinbelow:- “Mr. Aman Sood, learned counsel for the respondents, on instructions, stated that Circular No.504, dated 17th January, 2013, issued by the Government of India, Ministry of Defence has been adopted by the Government of Punjab, vide notification No.5/1/13- 2RBH/780838, dated 23rd June, 2016, and that the said notification of the Punjab Government has been adopted by the respondent-Board, vide letter No.30322-83/R&R/4084/R-4, issued on 26th September, 2016. It was further submitted that the petitioner may approach respondent No.1 for the release of benefits, which have already been sanctioned in his favour, in terms of the above notification. His statement is taken on record. In view of the above, the writ petition is disposed of with a direction to the petitioner to approach the respondents/Authority concerned for the release of benefits, to which he is entitled to. Pending CMPs, if any, also stand disposed of. Copy dasti.” 15. It is, therefore, held that as per communication dated 17.01.2013 as the right to receive dual pension stood conferred upon the petitioner w.e.f. 24.09.2012, the act of the respondent-Board of not paying dual pension from 24.09.2012 to 23.06.2016 is bad in law. Once this right stood conferred upon the NOK by Annexure R-2, benefits, therefore, should have given to the beneficiaries from due date. Accordingly, the respondent-Board is directed to pay the arrears of the family pension from 24.09.2012 to 23.06.2016 to the petitioner. Once this right stood conferred upon the NOK by Annexure R-2, benefits, therefore, should have given to the beneficiaries from due date. Accordingly, the respondent-Board is directed to pay the arrears of the family pension from 24.09.2012 to 23.06.2016 to the petitioner. However, this Court is not burdening the respondent-Board with payment of interest etc., and the only direction, which the Court is passing is in this that let the arrears from 24.09.2012 to 23.06.2016 be paid to the petitioner by the respondent-Board within a period of three months from today, failing which, she shall be entitled for interest @6% on the said payment as from the date of the filing of the writ petition prayed for. 16. Petition stands disposed of in above terms, so also pending miscellaneous applications, if any.