WP (C) No.11893 of 2005 Page 1 of 4 * IN THE HIGH COURT OF DELHI AT NEW DELHI + WP (C) No.11893 of 2005 % Date of decision: 23.05.2008 SMT. CHANDRAWATI DEVI …PETITIONER Through: Mr. M.K. Gaur, Advocate. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Ms. Preeti Dalal, Advocate with Major S.S. Pandey for the Respondents. CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? No 2. To be referred to Reporter or not? No 3. Whether the judgment should be No reported in the Digest? SANJAY KISHAN KAUL, J. (Oral) 1. Rule DB. 2. At the request of the learned counsels for the parties, the petition is taken up for final disposal. 3. The husband of the petitioner was enrolled in the Army on 13.8.1954 and was invalidated out of service on 2.9.1967 on medical grounds on account of ear defect (CSOM). The husband of the petitioner passed away on 21.5.1996 and till his death was in receipt of disability pension including service element and the disability element. WP (C) No.11893 of 2005 Page 2 of 4 4. The petitioner is in receipt of ordinary family pension but claims Special Family Pension (SFP). Such SFP is payable only in case the death of the service personnel was also occasioned on account of the disease which resulted in his invalidation from service. The respondents have also taken a decision that if the death is within a period of ten (10) years then a presumption would be raised in favour of such service personnel that the cause of death is attributable to the same disease but in case the death is beyond the period of ten (10) years, then there would be no such presumption. This is as per Rule 11 of the Entitlement Rules for Casualty Pensionary Awards, 1982 and is under the heading of Post Discharge Claims, which is reproduced as under: “APPENDIX II Referred to in Regulation 48, 173 & 185 ENTITLEMENT RULES FOR CASUALTY PENSIONARY AWARDS, 1982 …. …. …. …. …. …. …. …. POST DISCHARGE CLAIMS 10 …...... 11. In cases where an individual in respect of a disability pension dies at home and it cannot form a strictly medical point of view, be definitely established that the death was due to the disablement in respect of which the disability pension was granted: (a) the benefit of doubt in determining the attributability should go to the family of the deceased, if death occurs within 10 years from the date of his invalidment from service unless there are other factors adversely affecting the claim; and WP (C) No.11893 of 2005 Page 3 of 4 (b) if death takes place more than 10 years after the date of man’s invalidment from service, the benefit of doubt will go to the State.” 5. It is, however, not in dispute that even if in case of a death beyond ten (10) years, medical records can be produced by the wife of the deceased service personnel to show that the cause of death was the same disease on which the person was invalidated out of service and thus the presumption/benefit of doubt in favour of the respondents is rebuttable. 6. The case of the petitioner was examined by the respondents for grant of SFP and was rejected by the Record Officer on the advice of the PCDA(P) vide letter dated 19.8.2003. The petitioner preferred an appeal which was considered and dismissed in terms of the impugned order dated 28.4.2005. The said order provides that a second appeal is maintainable to the Raksha Mantri (Defence Minister). 7. A perusal of the impugned order shows that the cause of death is stated to be due to heavy swelling in ear and neck which prima facie appears to have a direct connection with the disease on account of which the petitioner was invalidated out of service. 8. In the given facts of the case we are, thus, of the considered view that the impugned order is liable to be WP (C) No.11893 of 2005 Page 4 of 4 set aside and the matter is remanded back to the first appellate authority to re-examine this particular case especially taking into consideration the cause of death on account of which the petitioner was discharged. In case the petitioner wants to support his case with any further medical records and certificates the petitioner may do so within one (1) month from today. The appeal would be disposed of within a period of three (3) months thereafter. In case the petitioner is found entitled to the SFP, the petitioner would be entitled to arrears for a period of three (3) years prior to the date of the first representation made by the petitioner. 9. A writ of mandamus is issued quashing the impugned order dated 28.4.2005 and directing the appellate authority to act in terms of the aforesaid directions. 10. The petition stands allowed in the aforesaid terms leaving the parties to bear their own costs. SANJAY KISHAN KAUL, J. MAY 23, 2008 MOOL CHAND GARG, J. b'nesh