THE HON’BLE SRI JUSTICE N.V. RAMANA W.P. Nos. 15934 of 2005 and 13269 of 2006 Common order: One D. Rajesh, while working as Land Driver in the Indian Army, died in an accident on 26.08.2004, leaving behind him, his wife, mother and father. When the official respondents were about to settle the death benefits of the deceased, it appears that the father and mother of the deceased made representation to the official respondents claiming a share in the death benefits. Acting on the said representation, the official respondents by order dated 10.05.2005, sent recommendations for division of family pension and ex-gratia of the deceased equally between the wife on the one hand and mother and father on the other. Assailing the above said order dated 10.05.2005, the wife of the deceased filed writ petition in W.P. No. 15934 of 2005 (hereinafter referred to as ‘the first writ petition’) inter alia contending that such division of family pension and ex-gratia of the deceased runs contrary to Rule 174(b) of the Pension Rules, and as such, the order passed by the respondents, making recommendations for division of family pension and ex-gratia of the deceased equally between the wife on the one hand and mother and father on the other, is liable to be set aside. While the first writ petition is pending before this Court, the mother and father of the deceased filed writ petition in W.P. No. 13269 of 2006 (hereinafter referred to as ‘the second writ petition’) to declare the inaction of the respondents in paying the pension and ex-gratia of the deceased, as per the orders dated 10.05.2005 of the respondents, as illegal and arbitrary, and consequently direct the respondents to pay pension and ex-gratia of the deceased as per the Pension Regulations and the orders dated 10.05.2005 of the respondents, dividing the pension and ex-gratia equally between the wife on the one hand and mother and father on the other. The learned counsel appearing for the petitioner-wife of the deceased submitted that since the deceased had nominated the petitioner-wife as his next of kin (NOK), she alone is entitled to receive the death benefits of her deceased husband, and the action of the official respondents, in passing the orders dated 10.05.2005, recommending for division of family pension and ex-gratia of the deceased equally between the wife on the one hand and mother and father on the other, is not in accordance with Rule 174(b) of the Pension Rules. He further submitted that the petitioner-wife except the claimed death benefits of her late husband, is not having any properties, and since the petitioners in the second writ petition-mother and father of the deceased, are having house and landed properties and are living separately with their daughter and son-in-law, the petitioner-wife alone is entitled to claim the entire family pension and ex-gratia of the deceased. Hence, he prayed that the impugned order dated 10.05.2005 passed by the respondents, recommending for division of family pension and ex-gratia of the deceased equally between the wife on the one hand and mother and father on the other, be set aside, and prayed for directions to the respondents to pay the said benefits to the petitioner-wife alone. The learned counsel for the petitioners-father and mother of the deceased submitted that the mother and father of the deceased are dependant on the salary of the deceased. He submitted that the wife is merely a nominee and she cannot appropriate all the death benefits of the deceased for herself on the ground that she had married him. He submitted that pension is intended for the support of all the eligible members of the family, irrespective of in whose name it stands. He submitted that apart from the wife, mother and father and children of the deceased, are also entitled to receive the family pension and other death benefits of the deceased, and the wife cannot claim any exclusive right over the said death benefits of the deceased. He further submitted that the official respondents have the power to divide the family pension, ex-gratia and other benefits of the deceased, having regard to Regulations 215, 216, 218 and 229 of the Pension Regulations for the Army. The official respondents filed counter. The learned Assistant Solicitor General appearing for the official respondents reiterating the counter averments submitted the deceased during his lifetime had nominated his wife as NOK, and therefore, she alone is entitled to receive the death benefits of the deceased. He submitted that the father of the deceased made a representation dated 09.09.2004 to the Armoured Corps Records for division of family pension and other benefits. Acting on the said representation, the Armoured Corps Records vide letter dated 23.09.2004 requested the Branch Recruiting Officer, Guntur, to investigate and forward his recommendations with regard to the percentage of division of family pension and ex-gratia of the deceased between the wife on the one hand and mother and father on the other. The Branch Recruiting Officer, Guntur, having investigated the matter, vide orders dated 10.05.2005 made recommendations for equal distribution of family pension and ex-gratia of the deceased, between the wife on the one hand and mother and father on the other. He submitted that both the wife and mother and father of the deceased were requested to submit certain documents, and at that point of time, the wife of the deceased got issued legal notice dated 20.04.2005 claiming the entire death benefits contending that since she has been nominated as NOK, she alone is entitled to receive the death benefits of the deceased. Pursuant thereto, PCDA (P), Allahabad vide letter dated 21.07.2005 requested the Branch Recruiting Officer to investigate the matter once again, and he having investigated the matter, vide order dated 20.01.2006, made recommendations for payment of 100% ex gratia to the wife and for division of family pension in the ratio of 85:15 between the wife on the one hand and mother and father on the other. He submitted that as per Regulation 216 of Pension Regulations for the Army, 1961, Part-I wife of the deceased being the next of kin, is eligible for special family pension, and she comes first in the order of eligibility, and in case the wife is not having communal life with parents of the deceased, then the family pension will be divided as provided in Regulation 228 of the Regulations. Heard the learned counsel for the petitioner-wife, the learned counsel for the petitioners-mother and father and the learned Assistant Solicitor for the Central Government for the official respondents. The wife on the one hand and mother & father on the other of one D. Rajesh, who died in an accident on 26.08.2004 while serving the Indian Army, are claiming his terminal and pensionory benefits. Pursuant to his death, both his wife and mother & father, made representations to the army officials for grant of terminal and pensionary benefits. In pursuance of the said representations, the respondents conducted enquiry, and at the first instance, vide order dated 01.11.2004 recommended for division of pension and other terminal benefits in the ratio of 50:50 (50% to the wife and 50% to the mother & father of the deceased), and subsequently, on the legal notice issued by the wife, the respondents conducted another enquiry, and vide order dated 20.01.2006 recommended for division of pension in the ratio of 85:15 (85% to the wife and 15% to the mother & father of the deceased) and the entire terminal benefits to the wife. The mother & father seek payment of pension and other terminal benefits as per the first recommendation dated 01.11.2004, while the wife seeks payment of entire pension and terminal benefits in her favour on the ground that she has been nominated as NOK. The learned counsel for the petitioner-wife of the deceased contends that since the wife has been nominated as NOK by the deceased, she alone is entitled to receive the entire pension and terminal benefits of the deceased, and he opposed both the orders dated 01.11.2004 and 20.01.2006 passed by the Branch Recruiting Officer, Guntur, recommending division of pension in the ratios mentioned therein between the wife and mother & father, as illegal and arbitrary, for the reason that the mother & father of the deceased have other landed properties and other sources of income. While the learned counsel appearing for the petitioners-mother & father of the deceased disputed the contention of the wife of the deceased that they have landed properties and other sources of income, and contended that except the money, which their deceased son used to send for their sustenance, they have no other source of income. He further contended that the wife of the deceased is not living with them, and she is living with her parents, and she is intending to get married, and in the event, she gets married, they will lose the family pension of the deceased. It is their case that the wife is only a nominee, and she cannot appropriate the monies entirely for her exclusive benefit, and she as nominee being only the custodian of the monies, has to share the same with all the eligible heirs of the deceased. They submitted that till date, they have not received any death benefits of the deceased, while the wife of the deceased, has received an amount of Rs.9,03,993/-, and prayed that the terminal and pension benefits of the deceased, be distributed equally between the wife and mother & father of the deceased, as recommended by the Branch Recruiting Officer, Guntur, vide letter dated 01.11.2004, and not as recommended by him subsequently vide letter dated 20.01.2006. The learned Standing Counsel for the respondents produced the record. A perusal of the same would disclose that acting on the representations made by the wife and mother & father of the deceased, Major, Senior Record Officer, Kavachit Corps Abhilekh, Armoured Corps Records, Ahmednagar, addressed letter dated 23.09.2004 to the Branch Recruiting Office, Guntur, stating that though as per the policy in vogue Smt. Sridevi (wife), who is nominated as NOK, is entitled to receive all death/pensionary benefits, including AGI benefits of the deceased, but since the father of the deceased vide petition dated 09.09.2004 has made a request for division of family pension and other death benefits between them and his daughter-in-law (wife of the deceased) on the ground that their daughter-in-law has left their house and is living with her parents, and directed him to investigate the matter and forward his recommendations with regard to percentage-wise division of family pension and ex-gratia between the wife and mother and father of the deceased. Major, Senior Record Officer, Kavachit Corps Abhilekh, Armoured Corps Records, Ahmednagar, has also addressed a letter dated 21.10.2004 to the wife and mother and father of the deceased directing them to appear before the Branch Recruiting Officer, Guntur. The Branch Recruiting Officer, Guntur, having investigated the matter, addressed letter dated 01.11.2004 to Kavachit Corps Abhilekh, Armoured Corps Records, Ahmednagar, along with his recommendations, and the same reads as under: 1. Ref your letter No. 15469173/SAW/FP/PC dt 23 Sep 2004. 2. The case has been investigated by this office, the findings are as follows: (a) Smt. Sridevi V widow of No. 15469173 late LD Rajesh Velaga has no movable or immovable property in her name and even not having a house to live in. Presently, she is living in the ORs md accn provided by School of Armd Warfare, AC Centre and School, Ahmednagar, along with her parents. She is likely to be employed in by School of Armd Warfare, AC Centre and School Ahmednagar, as stated by her, she has no issue from her late husband No. 15460173 LD Rajesh Velaga. 3. About Smt. Sridevi V (a) She don’t possesses any movable or immovable property on her name. (b) She don’t have any house to live in. (c) She is presently residing in Govt md accn provided by School of Armd Warfare, AC Centre and School, Ahmednagar. (d) She feels insecure to stay along with her in-laws. (e) She is prepared to look after her in-law if all the benefits are given to her. (f) She don’t have any other source of income except the death benefits and family pension to survive and or/if she is employed at later stage of life. 4. About Shri Velaga Sivaiah and Smt Velaga Aruna age 57 yrs and 54 yrs respectively: (a) They are fully depended on lat LD Rajesh Velaga. (b) Shri Velaga Sivaiah has to work as agricultural coolies to sustain himself and his wife Smt Velaga Aruna. (c) Smt Velaga Aruna is effected with Filarial. (d) Smt. Velaga Aruna owns a house at Mulpur village a house appeox worth Rs.1,30,000/- and possesses no other movable or immovable property. (e) Late LD Rajesh Velaga was their only son and their daughter Smt Garikapadi Nagejoyti is married and residing at Hyderabad (AP). 5. Recommendation: In view of the above it is recommended that the family pension and ex-gratia to be equally distributed between widow of Late LD Rajesh Velaga and his parents. Necessary documents are fwd for your perusal and necessary action please. From the above, it is clear that recommendations was made for distribution of family pension and ex-gratia equally between the wife and mother & father. Pursuant to the above recommendation, Major Captain, Senior Record Officer, Kavachit Corps Abhilekh, Armoured Corps Records, Ahmednagar, vide letter dated 10.05.2005 forwarded proposals of Division of Family Pension and ex-gratia claims to the Office of the PCDA (P), Allahabad. However, it appears that the wife of the deceased got issued a legal notice dated 20.04.2005 to the Accounts Officer (Pension) PCSA (P), Allahabad, claiming the entire terminal and pensionory benefits of the deceased in her favour. Having regard to the said legal notice, the Accounts Officer (Pension), PCDA (P), Allahabad, addressed letter dated 21.07.2005 to the Officer-in-Charge, Armoured Corps Records, Ahmednagar, returning the family pension claims without taking any action thereon, and requesting to investigate the matter once again. Basing on the said letter, Major, Senior Record Officer, Kavachit Corps Abhilekh, Armoured Corps Records, Ahmednagar, addressed letters dated 08.08.2005 and 06.12.2005 to the Branch Recruiting Officer, Guntur, requesting him to re-investigate the matter keeping in view the contents of the letter dated 21.07.2005 and forward recommendations with regard to percentage-wise division of family pension between wife and father & mother of the deceased, for re-submission of family pension claims. As directed by the Senior Record Officer, Kavachit Corps Abhilekh, Armoured Corps Records and the Branch Recruiting Officer, Guntur, vide their letters dated 10.09.2005, 20.12.2005 and 30.12.2005, the wife and mother & father of the deceased appeared before the Branch Recruiting Officer, Guntur on 20.01.2006. Pursuant to the above, the Branch Recruiting Officer, Guntur, having investigated the matter, passed orders dated 20.01.2006 to Armoured Corps Records, Ahmednagar, recommending division family pension and ex-gratia in the ratio of 85:15 between the wife and mother & father, and the same reads as follows: 1. Please refer to your letter No. 15469173/SAW/FP/PG, dated 06.12.2005. 2. Both the parties, Smt. Sridevi w/o No. 15469173 Late LD Rajesh Velaga and Shri Velaga Siviah, father of the deceased was called on 20 Jan 2006. After hearing of both the parties and amicable solution have been made as under: (a) Ex-gratia 100% ex-gratia to be paid to Smt. Sridevi, wife of the deceased. (b) Special Family Pension Special Family Pension to be divided into the ratio of 85:15 (i.e. 85% to be paid to Smt. Sridevi, w/o the deceased and 15% to be paid to Shri Velaga Siviah, father of the deceased). A perusal of the above recommendation would disclose that the officer after hearing the parties, had made such a recommendation, for payment of family pension in the ratio of 85:15 between the wife and mother & father, and the entire ex-gratia in favour of the wife. The said letter does not disclose whether there was any material available before the recommending officer with regard to the financial status of the parties, which justified him to recommend such a division. The respondents were unable to say and explain as to under what provision of law, they are entitled to divide the pension and ex-gratia in the ratio indicated above, and more so when it is stated that the family pension is intended for support of the whole family. In this context, it would be apposite to refer to some of the relevant provisions of the Pension Regulations for the Army. Regulation 215 which defines the intention and purpose of the pension, reads as follows: A family pension is intended for the support of all the eligible members of a family, irrespective of in whose name it stands. Who are the family members eligible for pension, is stated in Regulation 216, and the same reads as follows: The following members of the family of a deceased individual shall be viewed as eligible for the grant of a family pension, provided that they are otherwise qualified:- (a) Widow lawfully married. (b) Father. (c) Mother. (d) Son, actual and legitimate. (e) Daughter, actual and legitimate. How the division of family pension between eligible heirs should be effected is dealt with in Regulation 228, and sub-regulation (a) thereof, which is relevant for the present purpose reads as follows: If the recipient of a family pension refuses to contribute proportionately towards the support of other eligible heirs in the family who were dependant upon the deceased soldier or non-combatant, or if the pension is in the name of a child but is not devoted to the interest of the family generally, a competent authority may, on the advice and recommendations of a deputy commissioner or collector of the district, divide, at his discretion, the family pension among the eligible heirs of the deceased soldier or non-combatant. From the above quoted Regulations, it is clear that pension is intended for the benefit of all the members, which includes, widow, lawfully married, father, mother, son, actual and legitimate, daughter, actual and legitimate. In view of this, in the instant case, the wife and mother & father of the deceased are eligible for family pension. It is the case of the wife that since she has been nominated as NOK of the deceased, she alone is entitled to receive the pension and terminal benefits of the deceased, while the mother & father are contending that even they are entitled to a share in the terminal benefits and pension. There is no doubt that the wife is nominated as NOK of the deceased, but the settled law is that nomination enables the nominee to receive the benefits, but he/she has to share the same among all the eligible persons as per the laws of succession. Since both the wife and mother & father, who are eligible for the pension, are claiming the pension and terminal benefits, the respondents in the matter of effecting division of pension between them are required to follow the procedure contemplated in Regulation 228(a) of the Pension Regulations for the Army, which inter alia requires the competent authority to obtain advice and recommendation from the Deputy Commissioner or Collector of the District. The record produced by the respondents does not disclose whether the competent authority before effecting division of pension in the ratio of 50:50 or 85:15 between the wife and mother & father of the deceased and 100% ex-gratia exclusively in favour of the wife, had obtained advice and recommendation of the Deputy Commissioner or Collector of the District. It is also not known whether the respondents have cancelled or rescinded the recommendations dated 01.11.2004, which recommended division of pension and ex gratia equally between the wife and mother & father, and more so when there is no proceedings to that effect found in the record produced by the respondents. However, even before passing any final orders either accepting the recommendations dated 01.11.2004 or the subsequent recommendations dated 20.01.2006, it appears that the respondents, acting on the subsequent recommendation dated 20.01.2006, have paid the terminal benefits amounting to Rs.9,03,993/- to the wife of the deceased, the break-up of which is Rs. 47,034/- towards Army Force Personnel Provident Fund; Rs. 2,51,078/- towards Army Group Insurance; Rs.32.055/- towards Army Group Insurance Maturity Benefits, Rs.5,00,000/- towards ex-gratia; Rs. 38,826/- towards Death Life Insurance; Rs.30,000/- towards Army Commitment Welfare Fund; and Rs.5,000/- towards Army Wives Welfare Association. An amount of Rs.2,51,078/- towards Group Insurance of the deceased has been invested in SSD in the name of AGI for three years, and it is stated that the same will be paid to the declared beneficiary. In fact, both the orders dated 01.11.2004 and 20.01.2006 passed by the Branch Recruiting Officer, Guntur, recommending division of pension in the ratios of 50:50 and 85:15 between the wife and mother & father of the deceased, do not disclose as to under what provision of law he has recommended division of pension and other terminal benefits, in the ratios as mentioned therein. The respondents except stating that since the deceased has nominated his wife as NOK, she alone is entitled to receive the pension and terminal benefits, have not assigned any reason, much less convincing reason, justifying division of pension and ex-gratia in the ratios as mentioned in the said orders. In the absence of any reasons assigned or material produced by the respondents justifying the division of family pension and ex-gratia in the ratios as mentioned therein, and such division having been effected without following the procedure prescribed in Regulation 228(a) of the Pension Regulations for the Army, and no final orders thereon having been passed by the authority, namely respondent Nos. 1 and 2, authorized to pass orders on the recommendations, either accepting or rejecting the recommendations, but having regard to the fact that the recommendations made by the Branch Recruiting Officer, Guntur, are based on no material and without proper investigation and without following the procedure prescribed under Regulation 228(a) the Pension Regulations for the Army, and without keeping in view the provisions of Regulations 215 thereof, as discussed above, I am of the considered opinion that both the recommendations dated 01.11.2004 and 20.01.2006, made by the Branch Recruiting Officer, Guntur, recommending for division of family pension in the ratios as mentioned therein cannot be sustained, and are liable to be set aside. In view of the above, the writ petitions are allowed. Both the orders dated 01.11.2004 and 20.01.2006, passed by the Branch Recruiting Officer, Guntur, recommending division of family pension and ex-gratia in the ratios, as mentioned therein, are set aside. The respondents, i.e. the authority competent (Branch Recruiting Officer, Guntur) in the matter of making recommendations for division of family pension and other terminal benefits between the wife and mother & father of the deceased, shall follow the procedure prescribed in Regulation 228(a) of the Pension Regulations for the Army, by calling for the advice/ recommendations of the Deputy Commissioner or Collector of the District, and any other Rules/Regulations in vogue, and then make necessary recommendations keeping in view Regulation 215, within a period of four weeks from the date of receipt of a copy of this order. Thereupon, respondent Nos. 1 and 2, namely the Principal Controller of Defence Accounts and the Officer In-charge, Armoured Corps, shall pass appropriate orders either accepting or rejecting the recommendations, within a period of two weeks thereafter, and on the basis thereof, take further action for payment of pension and ex-gratia to the wife and mother & father of the deceased. No costs. _________________ N.V. RAMANA, J. Date: 1st February, 2008. KSR