IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER S.B. Civil Writ Petition No.4381/1999 Smt. Chandrawal Kanwar vs. The Union of India & Ors. Date of Order : : 25th November, 2008 HON’BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. Rajendra Singh Bhadauria for the petitioner. Mr. Sanjay Pareek for the respondents. REPORTABLE This writ petition has been filed by Smt. Chandrawal Kanwar widow of late Pane Singh, who was Sepoy with Bikaner Karni Infantry for payment of regular pension to her late husband till he was alive and for payment of family pension to herself after his death. Late husband of the petitioner was enrolled as such on 1.2.1930 and was released on medical grounds on 16.4.1946 after he had rendered service of 16 years, 2 months and 16 days. He unfortunately died on 13.12.1959. According to the petitioner, her late husband lost the discharge book and therefore he could not pursue his case for grant of pension effectively. He during his life time made several representations to various authorities for grant of regular pension after the country attained freedom. Struggling thus, he died on 13.12.1959. Petitioner being illiterate and pardanashin lady could not pursue the case for grant of his regular pension and family pension. She however learnt about the orders issued by the Government of India that all widows of pre-1964 pensioners shall be granted family pension with effect from 1.1.1976. She with the help of Secretary, Zila Sainik Board, Sriganganar could get the service particulars of her late husband only on 20.5.1988. She then submitted an application for grant of ordinary family pension sometime in the year 1989, which was erroneously sent to Records, the Rajputana Rifles. The Records, Rajputana Rifles vide their letter dated 4.11.1989 forwarded this application for necessary action to Records, the Rajput Regiment. The Rajput Regiment vide letter dated 13.11.1992 called for certain particulars and details from the petitioner but no further action was taken by them. Petitioner in that situation served upon the respondents a notice for demand of justice on 17.5.1995. The said notice was replied to by the respondents vide their letter dated 1.8.1995 intimating that the case of the petitioner has been referred to the Rajput Regiment for necessary action. The Chief Controller of Defence Accounts (Pension) Allahabad by their letter dated 16.8.1995 required the petitioner to submit sheet roll of her deceased husband so that her case for grant of family pension could be examined. Thereafter, petitioner sent one more letter on 27.6.1998 seeking final reply from the respondents. The respondents at that stage by their letter dated 20.8.1998 informed the petitioner that since her late husband did not render requisite 21 years of qualifying service as per Rule 35 of the Bikaner Army Pension & Gratuity Rules, therefore, he was not entitled to any pension and since he was not a recipient of pension, family pension could not be granted to the petitioner. She therefore approached this court by filing the present writ petition. In the writ petition, petitioner has also challenged validity of Rule 35, supra and prayed for a direction to the respondents to grant pensionary benefits in favour of her late husband with effect from the date of his release on 16.4.1946 till he died on 13.12.1989 and thereafter grant her family pension treating her to be a widow of army personnel of pre-1964 and alternatively, it is also prayed that her husband should be granted disability pension till he was alive with consequential benefits and interest. I have heard Shri Rajendra Singh Bhadauria, learned counsel for the petitioner and Shri Sanjay Pareek, learned counsel appearing for the respondents. Shri Rajendra Singh Bhadauria, learned counsel for the petitioner has argued that the late husband of the petitioner was a Sepoy in the Bikaner Karni Infantry and had also participated in World War II. He fought for the country under the command of Indian Army during World War II in the Iran and Middle East. He had to remain there for five to six years. Learned counsel relied on the Circular issued by the Government of India, Ministry of Defence, New Delhi dated 24th May, 1951 / 4th July, 1951 on the subject of mustering out concession for State Forces Personnel, who served ex-State Armies in field service area. The said Circular was addressed to the Chief Secretaries of all the States. It was stated therein that it has been brought to the notice of the Defence Ministry that in some ex-States, service in the field service area counts as double for the purpose of qualifying service for pension under the State Rules and it has been represented that this concession should also be allowed in calculating the mustering out concessions of the personnel of the State Forces, who have been or are being discharged on grounds of reorganisation of the State Forces consequent upon federal integration. The President was therefore pleased to decide that the officers would be allowed to count their service rendered in ex-States in a field service area as double for the purpose of qualifying service for mustering out pension / gratuity, where it is admissible under the respective State Forces Rules. With regard to JCOs and other Ranks, it was decided that in view of liberalisation of mustering out concessions as granted by the Defence Ministry’s letter dated 21.4.1951, the concession of double service cannot be extended to these personnel. In addition where, however, an individual elects the option to receive mustering out concessions under the normal State Force Rule, he will be entitled to count his services rendered with ex-State in a field service area as double for purposes of pension/gratuity, if admissible under the State Rules. Relying on aforesaid policy letter of Ministry of Defence, learned counsel Shri R.S. Bhadauria argued that since the petitioner’s late husband served the nation during the World War II for more than five years, he on the same analogy was entitled to count double of such service to make up for the deficiency, if at all there was any in the qualifying service for grant of pension. It was argued that now the Government of India also has taken the policy decision to grant such family pension to all the widows of pre-1964 army personnel, therefore, the non grant of family pension to the petitioner is wholly discriminatory and violative of Articles 14 and 16 of Constitution of India. The action of the respondents in not sanctioning family pension to the petitioner is also discriminatory because for all other widows of army personnel, the minimum qualifying period for pension is 15 years both in the pension Regulations for the Army in India Part-II of 1940 and Pension Regulation for the Indian Army, 1961 Part-I. Learned counsel argued that the late husband of the petitioner was discharged on medical grounds and that he was never provided with the documents or evidence to show that the disability owning to which he was discharged from the service, was not attributable to military service. If he is taken to be entitled to disability pension, the petitioner would also be entitled to receive family pension. Learned counsel relied on the Circular of Government of India, Ministry of Defence, New Delhi dated 8.8.1985 addressed to the Chiefs of the Army, Navy and Air Staff for grant of family pension to army personnel, who died before 1.1.1964 or are otherwise not covered by the Family Pension Scheme of 1964, especially Clause 5(e) thereof, which provides that life-time arrears of family pension would be payable in respect of widows of deceased government employee. Learned counsel relied on the division bench judgement of this Court in Din Mohammed @ Deenia (since deceased) through Legal Representative; Shri Kayamuddin vs. The Union of India & Ors.-2002 WLC (Raj.) UC 103 and argued that the division bench in the aforesaid case has held that claim of pension is a recurring cause of action and therefore cannot be rejected on the ground of delay alone. Shri Sanjay Pareek, learned counsel for the respondents opposed the writ petition and argued that as per Rule 35 of the Government of Bikaner Army Pension and Gratuity Rules, 1949 Education, the minimum qualifying service for grant of service pension is 21 years. Since the late husband of the petitioner rendered only 16 years, 2 months and 15 days service, he could not be granted service pension. It was argued that he was invalidated out of service with effect from 16.4.1946 due to falling down from `Zunaced’ (Rajasthani word), which was not found to be attributable to military service. It was argued that in the present case the Rules relating to Indian Army cannot be applied to the present case because late husband of the petitioner was a Sepoy with Bikaner Karni Infantry and even after merger of the princely States into the country, the rules of such ex- State would prevail for pension claim of the late husband of the petitioner and for grant of family pension to the petitioner. Learned counsel further argued that the writ petition has been filed belatedly in the year 1999 whereas late husband of the petitioner was discharged from service in the year 1946. The respondents cannot be expected to preserve all the relevant documents till this distant time and the writ petition having been filed with enormous delay and latches, is liable to be dismissed. Learned counsel alternatively submitted that the Supreme Court in the case of Shiv Dass vs. Union of India & Ors.-2007 (9) SCC 274 considering the claim of disability pension with delay held that even if the claim is found to be sustainable in law, the relief has to be restricted to only three years preceding the date of filing of the writ petition. It was therefore submitted that the writ petition be dismissed. I have given my anxious consideration to the rival submissions and perused the material on record as also the relevant law on the subject. What is not in dispute is that the petitioner’s late husband rendered 16 years 2 months and 15 days service when he was discharged from service and that he was discharged on account of the fact that he was invalidated out of service, which according to the respondents was because he fell from `Zunaced’ and was thus rendered unfit for further retention in army services. The petitioner has made both the claims namely claim for pension or disability pension for her late husband and family pension for herself. In view of the division bench judgement of this Court in Din Mohammed, supra, claim of this nature, even if filed with delay, cannot be rejected simply on the ground of delay and latches. It is well settled proposition of law that pension is the recurring cause of action giving rise to cause of action every month. The Supreme Court in Shiv Dass, supra held that if negligence or omission on the part of the writ petitioner is such, which causes grave prejudice to the opposite party, the High Court may refuse to entertain the writ petition. At the same time, however, it was also held that if the claim is found to be otherwise sustainable in law, the relief may be restricted to the period of three years immediately preceding the date of filing of the writ petition. In the present case, I do not find any such grave prejudice being caused to the respondents merely because of the late filing of the writ petition as the petitioner has certainly made out a case worth examination on merits. That is so because the respondents themselves do not deny that late husband of the petitioner was discharged from service having rendered 16 years 2 months and 15 days service and that he was in fact invalidated out of service on account of fall from `Zunaced’. I therefore proceed to examine and decide the writ petition on merits. Clause 227 of the Pension Regulations for Family in India, 1940 Part-II, inter alia provides that 15 years would be the qualifying service for grant of ordinary pension in the case of Sowars, sepoys and other ranks such as Farriers of Royal and Indian Artilley and British cavalry. Regulation 132 of the Pension Regulations for Indian Army, 1961 Part I similarly provide 15 years to be minimum period of qualifying service for earning service pension. It is on that basis that the petitioner has challenged the validity of Rule 35 of the Bikaner Army Pension & Gratuity Rules which makes 21 years as the minimum period qualifying for grant of ordinary pension. The question is whether validity of Regulation is required to be gone into in the context of the claim of the present nature where the widow has been able to prima facie show that her husband was discharged from service on medical grounds after he had completed 16 years 2 months and 15 days service which length of service, would have otherwise entitled him to grant of pension under the Pension Regulations of 1940. Even otherwise, the late husband of the petitioner was discharged not because of his own choice but because the respondents found him unfit for further service and that was because he had fallen from `Zunaced' while serving the respondents. The reason that is cited by the respondents for his discharge clearly has to do with his service because he sustained the injury leading to his discharge while actually serving the respondents and it happened when he was still in the service of the respondents. Independently, in the case of discharge of this nature, where the army personnel has been discharged in this manner, he according to Regulation 197 of the Pension Regulations, 1961 would be entitled to grant of invalidating pension / gratuity and minimum period of qualifying service actually rendered and required for grant of such invalidated pension as per Regulation 198 thereof is 10 years. The petitioner should, even otherwise, therefore be held entitled to receive family pension because the deficiency in service can be made up on the analogy on which the service rendered in field service area by members of the ex-State armies was counted double for the purpose of qualifying even as per the instructions issued by the Defence Ministry dated 24.5.1951, supra. The late husband of the petitioner rendered more than five years of service to the nation while fighting under the common of Indian Army during World War II in Iran and Middle East. Even the Pension Regulations of 1940 in clause 227, which was in force at the time of their discharge, provided for 15 years as qualifying service for grant of pension to his fellow warriors, who faught for the nation under common command of the Indian Army. The Family Pension Scheme of 1964 promulgated by Government of India made all such widows of ex-army personnel entitled to family pension, which is evident from the circular of Ministry of Defence dated 8.8.1985 addressed to Chiefs of the Army, Navy and Air Staff. According to that Circular, the President of India was pleased to decide that benefit of Family Pension Scheme of 1964 may be granted in accordance with the provisions of Army Instruction 2/S/64 as revised by Army Instruction No.51, which of 1980), which shall be allowed to all eligible persons with increased pension rates as introduced from 1.1.1973. In fact, it was directed that the life time arrears of family pension would also be payable in respect of widows of the deceased government employee, who were alive on 22.9.1977 and who died subsequent to that date. In the result, this writ petition is allowed in part. The respondents are directed to pay to the writ petitioner family pension with effect from 1.12.1994 because the petitioner originally filed the writ petition before Principal Seat of this Court at Jodhpur in the month of December, 1997 and because the writ petition was filed with delay, the relief is confined only to the period of three years immediately preceding the date of filing of the writ petition. The respondents are therefore directed to pay family pension to the petitioner with effect from 1.12.1994 till date together with interest @ 9% per annum. The writ petition is dismissed with regard to rest of the prayers. Compliance of the judgement be made within three months from date its copy is produced before the respondents. There shall be no order as to costs. (Mohammad Rafiq),J. RS/-