C.W.P. No. 19665 of 2009 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.W.P. No. 19665 of 2009 Date of Decision : 03.01.2011 Kartar Kaur & another .......... petitioners Versus Union of India & others ...... Respondents CORAM : HON'BLE Mr. JUSTICE M.M. KUMAR HON'BLE Ms. JUSTICE RITU BAHRI 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present : Mr. Rajan Sehgal, Advocate for the petitioner. Ms. Anjali Kukkar, Central Govt. Standing Counsel for the respondents. **** RITU BAHRI, J. This petition under Article 226 of the Constitution prays for declaring the notifications dated 28.8.1998 (Annexure P-5), dated 24.11.1999 (Annexure P-6) and dated 5.3.1998 (Annexure P-21), as illegal, null and void to the extent, it prescribes the mean limits of ` 2550/- per month as earning of the dependent parents for the purpose of grant of dependent / ordinary family pension. The son of the petitioner Sukhdev Singh was enrolled in the Bengal Engineering Group. He was on annual leave from C.W.P. No. 19665 of 2009 -2- 22.2.1987 to 22.4.1987. On 21.4.1987, on his return journey enroute to Unit he fell seek. He died on 23.4.1987 in the Military Hospital, Ambala Cantt. due to the disease called SEPTICAEMIA. Sukhdev Singh was bachelor at the time of his death. He had named his parents as nominee for the purpose of Provident Fund, Group Insurance Scheme and other related benefits at the time of joining Army. Those benefits were released to the petitioner. However,her claim for special family pension was rejected by the Principal Controller of Defence Accounts (Pension). Her appeal also met the same fate at the hands of Government of India, Ministry of Defence vide letter dated 21.11.1988. A writ petition No. 16944 of 1989, filed by the husband of the petitioner, seeking the relief of grant of special family pension, was dismissed with liberty to serve demand justice notice on the respondents. On the basis of recommendations of the 5th Central Pay Commission, the condition of `2550/- per month as income criteria was imposed on 5.3.1988 for grant of family pension to the parents and widows /divorced daughters. On 26.8.1998, Ministry of Defence issued instructions for grant of the ordinary family pension and a ceiling limit of `2550/- p.m. was imposed on parents, sons and daughters. These instructions were made effective from 1.1.1998. It was clarified that those parents whose sons had died earlier to issuance of the scheme for grant of ordinary family pension, would be eligible. A notice of demand for grant of ordinary family C.W.P. No. 19665 of 2009 -3- pension w.e.f. 23.4.1987 was given. The Office of respondent -PCDA(P) Allahabad vide its letter dated 4.11.2004, returned the family pension forms of the petitioner with the observation that the total earning of the parents per month is `2750/-, which is more than the income criteria of `2550/- per month laid down by the instructions dated 26.8.1998 read with the letter dated 24.11.1999. The petitioner filed a writ petition No. 4786 of 2005, which was disposed off on 27.10.2005, keeping in view of the fact that the husband of the petitioner was getting `1962/- per month as on 1.1.1998 and the respondent should decide the case for grant of pensionary benefit to the petitioner within a period of three months and if found eligible she was to be granted ordinary family pension (dependent pension) within further three months. The petitioner was paid ordinary family pension @ `1275/- p.m. from 1.1.1998 to 31.12.2002 only. The respondent DPDO intimated the petitioner that her pension has been stopped as per the limit fixed by the Government of India, which is a policy matter. For the purpose of grant of special family pension or the liberalized pension there is no ceiling limit, whereas the ceiling limit prescribed for the grant of ordinary family pension is `2550/-. The Government of India has dispensed with the condition regarding means limit on dependent pension in respect of officers (including MNS Officers, TA C.W.P. No. 19665 of 2009 -4- Officers and ECOs/SSCOs) w.e.f. 1.1.1998 by amending the Regulation 95-C of the Pension Regulations for the Army 1961, Part-I. The prescription of ceiling limit in respect of ordinary family pension to the extent of `2550/- is under challenge. The petitioner has filed the present writ petition for continuance of her ordinary family pension w.e.f. 1.1.2003 onward for life. She has placed reliance on the Division Bench judgment of this Court in a case titled Ishwanti Devi vs. Union of India in CWP No. 11462 of 2006 decided on 15.2.2008, to contend that the Division Bench of this Court has ignored the condition of monthly income limit fixed at `2550/- per month and a direction has been given to give extra ordinary family pension to the parents. Mr. Sehgal, has placed reliance on a decision of this Court in the the case of Ishwanti Devi vs. Union of India in CWP No. 11462 of 2006 decided on 15.2.2008, to contend that the facts of this case are identical. The claim of the mother to avail family pension was declined on the ground that her husband had been getting pension from the Army. In Ishwanti Devi's case she had lost her son. He was bachelor. The claim of extra ordinary family pension was rejected on the ground that income of both the parents should be less than `2550/- per month only then they would be entitled to receive the family pension. The claim of the petitioner was C.W.P. No. 19665 of 2009 -5- allowed. Mr. Sehgal, learned counsel for the petitioner has argued that the notifications dated 28.8.1998, 24.11.1999 and 5.3.1998 be declared null and void to the extent it prescribed a limit to the extent of `2550/- per month for claiming family pension. Ms. Anjali Kukkar, could not successfully distinguish the facts of the present case from that of Ishwanti Devi's case (supra). After hearing the learned counsel for the parties we are of the considered view that it is an undisputed fact that there is no imposition of mean limit on the dependent parents entitled to ordinary special family pension or liberalized pension. The respondents have not denied that there is any mean limit of dependent pensioners in respect of MNS Officers, TA Officers and ECOs/SSCO, as per amendment of 95-C of the Pension Regulations for the Army 1961, Part-I. Relevant paragraph 16, of the letter dated 30th October, 1987 issued by the Ministry of Defence to the Chief of Staffs, reads as under :- “Dependents pension in respect of Officers (Including MNS Officers, TA Officers and ECCs/SSCOs): Dependents pension shall be admissible to the parent(s)/eligible brothers and sisters (in the absence of the parents) of the C.W.P. No. 19665 of 2009 -6- deceased officer at a rate equal to 50% of the notional Special Family pension that would have been admissible as per para 15.2(1) above, if they were largely dependent on the deceased officer for support and are in pecuniary need. The existing condition regarding “means limit” is dispensed with.” The contention raised by the counsel for petitioners merit where he argued that such a condition imposed for entitlement to ordinary family pension to the dependents of the officers is discriminatory. The husband of the petitioner is an Ex-serviceman who is getting a meager amount of pension as a matter of right. His wife can not be denied the benefit of ordinary family pension, taking into consideration the death of her son by fixing a limit of pension received by her husband. The petitioner / mother has no other source of income, and her claim for pension can not be rejected on the ground that pension of her husband exceeds the mean limit fixed by the Government. This Court in the case of Ishwanti Devi vs. Union of India (supra) in a similar situation has allowed the benefit to the mother, which is fully applicable to the facts of the present case. Accordingly the writ petition is allowed and a direction is given to the respondents to calculate ordinary family pension w.e.f. 1.1.2003 till date. The payment should C.W.P. No. 19665 of 2009 -7- be made to her within three months along with interest @6% per annum. The petitioner is entitled to cost of `3000/- (Rupees three thousand only). 03.01.2011 (M.M. KUMAR) (RITU BAHRI) 'sp' JUDGE JUDGE