IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 WP(C).No. 21815 of 2005(V) -------------------------- PETITIONER: --------------- PADMAVATHY AMMA, PIRAPPANCOTTU VEEDU, PANDITHITTA, THALAVOOR, KOLLAM. BY ADV. SRI.K.G.RENGANATH RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, CENTRAL SECRETARIAT, NEW DELHI. 2. THE PRINCIPAL CDA (PENSIONS), G-4/IX SECTION, ALLAHABAD, (U.P.). 3. SENIOR RECORDS OFFICER (MAJOR) (OIC RECORDS), SENA & SEVA CORPS ABHILEKH (DAKSHIN), ASC RECORDS (SOUTH), BANGALORE. ADV. SRI.JOBY CYRIAC, SC, KSIDC FOR R1 TO 3 SRI.P.J.PHILIP, C.G.S.C FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.No.21815 of 2005 APPENDIX PETITIONER'S EXHIBITS: Ext.P1: True copy of the representation dt. April 2000 sent by petitioner. Ext.P2: True copy of letter No.13899405/TASK IV/09/FP(MT) dt. 23.5.03 of 3rd respondent. Ext.P3: True copy of letter No.13899405/TASK IV/09/FP(MT) dt. 19.1.05 of 3rd respondent. Ext.P4: True copy of reminder dated 29.7.04 of the petitioner. Ext.P5: True copy of letter No.13899405/TASK IV/111/FP(MT) dt. 28.2.05 of 3rd respondent. Ext.P5(a): True copy of letter No.13899405/TASK IV/116/FP(MT) dt. 20.6.05 of the 3rd respondent. RESPONDENTS'S EXHIBITS: Ext.R3(a): True copy of the letter issued by Ministry of Defence dt. 26.8.1998. Ext.R3(b): True copy of the letter issued by Ministry of Defence dt.24.11.1999. Ext.R3(c): True copy of the letter issued by Army Headquarters dt.612.2001. C.R C.T. RAVIKUMAR, J. --------------------------------------------- W.P.(C) NO.21815 of 2005 --------------------------------------------- Dated this the 24th day of August, 2009 JUDGMENT The question that arises for consideration in this writ petition is whether family pension under the Pension Regulations of the Army, 1961, can be denied to the next eligible legal heir on the ground that it was, earlier, sanctioned to and was being drawn by the primarily eligible person till his/her disqualification to receive the same. This question arises for consideration in the following factual matrix:- The petitioner is the mother of one Unni Pillai, who died on 2.11.1993, while serving as a sepoy in ASC Battalion of the Indian Army. He married one Rekha a few months prior his death and admittedly, she is issueless in that wedlock. Upon the death of the said Unni Pillai, family pension was sanctioned to the primarily eligible person viz., the widow, in accordance with the pension regulation of the army. However, she incurred disqualification to receive family pension on account of her re- marriage which was solemnized on 19.4.2000. Thereafter, the petitioner herein, who is the mother of the deceased Unni Pillai, applied for family pension as per Ext.P1. The 3rd respondent duly recommended for granting of pension to the petitioner and the documents along with the application were forwarded for consideration of the second respondent. However, W.P.(C) NO.21815 of 2005 2 they gathered dust. At last, the second respondent took up the matter for consideration and as per Ext.P6 dated 20.6.05, the petitioner was informed of rejection of her claim. It was challenging Ext.P6 that this writ petition has been filed by the petitioner. 2. The aforesaid factual details were not under dispute. Ext.P6 contains the objection and also the reason for rejection of the claim of the petitioner for family pension as hereunder:- “It is to inform you that your claim for family pension has been rejected by PCDA (P) Allahabad, the pension sanctioning authority that your son got married to Smt.Rekha Unni and family pension sanctioned to her vide PCDA (P) Allahabad pension payment order No.F/NA/3369/95. However, after disqualification of your daughter-in-law, family pension is not admissible to you under the existing rules”. Thus, it is evident that the lis lies in regard to the entitlement or otherwise of the petitioner to family pension on account of the sanctioning and drawal of family pension by the widow of the concerned deceased personnel prior to her incurring disqualification due to re-marriage. 3. I have heard the counsel on both sides. The learned senior counsel Sri.V.N Achuthakurup, who appeared for the petitioner contended W.P.(C) NO.21815 of 2005 3 in the light of the relevant provisions under the Pension Regulations of the Army, 1961 that there is no legal impediment at all for the grant of family pension to the petitioner. To substantiate his contention, the learned senior counsel placed reliance on the decision of this Court in Kunhami v. Union of India reported in 2006 (2) KLT 661 and contended that all the relevant provisions under the Army Regulations were elaborately considered thereunder. On the other hand, the learned counsel reiterated the contentions raised in the counter affidavit filed on behalf of the 3rd respondent to resist the same. The crux of his contentions is that on the death of the concerned Armed Force personnel, his widow was granted the family pension and she continued to receive the same and therefore, her subsequent incurring of disqualification would not make the mother of the deceased personnel eligible for the grant of family pension. 4. According to me, the decision in Kunhami's case (supra) is squarely applicable in this case and the respondents, therefore, cannot legally canvass the position that incurring of disqualification by the widow on account of re-marriage would not make the mother of the concerned deceased personnel eligible for the grant of family pension. The provisions under the Regulations were framed with a view to render financial assistance to the family of the deceased Armed Force Personnel on whom they were dependent for their survival. Admittedly, in this case, W.P.(C) NO.21815 of 2005 4 after the death of the concerned person, family pension was granted to the primarily eligible person, who is his widow. She was drawing pension and thereafter on account of her re-marriage she incurred disqualification to continue to draw the pension. It is only thereafter that the petitioner who is the mother of the deceased Unni Pillai applied for family pension. Indisputably, mother of a deceased Armed Force Personnel is an eligible family member to draw family pension. Going by the decision of this Court in Kunhami's case (supra) rendered relying on the decision of the Hon'ble Apex Court in S.K. Mustan Bee v. The General Manager, South Central Railway & Anr. reported in JT 2002 SC 50, the said reason cannot be assigned to deny family pension to a person like the petitioner. So also, no provision was brought to my notice under the Army Regulations by the respondents which would permanently disentitle or disqualify other surviving, eligible family members for the grant of family pension on the death or disqualification of the 'family pensioner' subject to the order of priority. In short, the respondents cannot assign the ground that the primarily eligible person viz., the widow was originally sanctioned the family pension and was drawing the same and therefore, the next eligible family member is ineligible to claim family pension even subsequent to the incurring of disqualification by such 'family pensioner'. Accordingly, Ext.P6 is quashed. Since the sole objection raised for granting family pension to the petitioner was thus found unmerited and W.P.(C) NO.21815 of 2005 5 untenable, there cannot be any further impediment for the grant of family pension to her. Therefore, there shall be a direction to the respondents to sanction family pension including arrears due, to the petitioner within three months from the date of receipt of a copy of this judgment. The Writ Petition is accordingly allowed. (C.T.RAVIKUMAR, JUDGE) spc