1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.7470/2007. : : Smt. Shakuntala Devi Vs. Union of India & Ors. : : Date of Order 16.3.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. Harish Maan for the petitioner. Mr. M.S. Raghav for Mr.Sanjay Pareek for the respondents. Heard learned counsel for the parties. 2. This writ petition has been filed by the petitioner widow of Late Lt. Col. Hoshiyar Singh claiming benefit of special family pension in terms of para 85 of Army Pension Regulations, 1961 (for short “Regulations of 1961”). 3. Shri Harish Maan, learned counsel for the petitioner submitted that late husband of petitioner was commissioned in Army on 10.6.1951 and expired on 14.9.1968 due to malignant neoplasm of rectum. Although she was granted regular family pension, but her case for family pension was rejected by Government of India on 2 14.9.1968 on the ground that such malignancy was not attributable to military service. It was argued that therapeutic research would reveal that malignancy is caused not only by familial traits and precancerous lesions like ployposis but may be caused by other reasons including harsh service conditions of the active army service. It was argued that respondents have rejected claim of the petitioner and failed to consider the provision of para 85 of Regulations of 1961 in its true perspective. Reference was also made to Para 423 of Regulation for Medical Services on the question of attributability of service and it was argued that petitioner was entitled to special family pension. Learned counsel cited judgment Supreme Court in Smt. Charanjit Kaur Vs. Union of India & Ors. : 1994 (1) SLR, 479 and also judgment of Punjab and Haryana Higher Court in Smt. Inder Kaur Vs. Union of India & Ors. : 1991 (4) SLR, 109 and argued that even if records are destroyed petitioner would be still entitled to family pension. 4. Shri M.S. Raghav, learned counsel for the respondents opposed the writ petition and argued that claim of special family pension was rejected by Government of India as far back on 10.6.1969 and the petitioner has raised 3 her claim after 39 long years. It was argued that case of the petitioner was examined by Medical Board and it was found that death of husband of the petitioner was not attributable to military service, therefore, the claim of the petitioner for special family pension was rejected. It was argued that case of the petitioner did not fall within the parameter of Para 85 of Pension Regulation for the Army. Learned counsel submitted that report of Medical Board is final and this Court under Article 226 of the Constitution of India cannot dislodge the same. Learned counsel relied on the judgment of the Supreme Court in Union of India & Ors. Vs. Surinder Singh Rathore : 2008 (5) SCC, 747 5. Learned counsel for the petitioner has rejoined and submitted that special family pension cannot be treated at par with disability family pension and judgment of Surendra Singh (supra), which is relied by learned counsel for respondents, has been rendered with reference to provision of Regulation of 173 of Army Rules, 1954. Law laid down therein with reference to Regulation 173 cannot be applied to cases covered by Regulation 84 where the language of the provision is materially different. Learned counsel also relied on judgment of the Supreme Court in Shiv Dass Vs. Union of 4 India & Ors. : 2007 (9) SCC, 274 and argued that Supreme Court therein held that even in the case of delay, total relief may not be denied though arrears may be restricted to the period of three years immediately preceding date of filing of the writ petition. 6. Having heard learned counsel for the parties and perused the material on record, I find that petitioner was already granted family pension and what is now being claimed is special family pension in terms of Regulation of 85 of Army Pension Regulation. Contention that record relating to late husband of the petitioner ought not to have been destroyed because the petitioner is recipient of family pension and the prescribed period for destruction of such record is 50 years, cannot be accepted because respondents on the basis of available material have asserted that original claim of the petitioner of special family pension was rejected for the reason that in view of opinion of competent Medical Authority, it was found that death of late husband of the petitioner was neither attributable to nor aggravated by military service. Supreme Court in Shiv Dass (supra) has also observed that if there is negligence on the part of writ petitioner in filing the writ petition, which in the facts and 5 circumstances, causes prejudice to the opposite party, High Court may refuse to entertain the writ petition. Even otherwise, I do not find any substance in the arguments that provisions of Regulation 173 are materially different from those of Regulation 85. Law that has been consistently laid down by Supreme Court in series of cases is that opinion of Medical Authority on the question of attributability or aggravation of deceased has to be accepted as final even while considering a writ petition under Article 226 of Constitution of India. I do not find any material difference between Regulation 85 and Regulation 173 because Regulation 85 also provides for death due to wound, injury or disease, which was attributable to military service or was aggravated by military service. Same phraseology has been used by Regulation 173. Law laid down by the Court in relation to Regulation 173 may, therefore, be applied to as arising out of Regulation 85. But that is besides the point, the present writ petitioner has approached this Court after enormous delay of 39 years and additionally, she is getting family pension already. 6 I, therefore, do not find any merit in this writ petition filed at such a belated stage. The writ petition is accordingly dismissed. (MOHAMMAD RAFIQ)J. A.Arora/ -Item No.46.