CWP No. 5188 of 2010 -1- ***** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CWP No. 5188 of 2010 Date of Decision : 14.09.2010 Kashmir Kaur .......... Petitioner Versus Union of India & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Rajeev Anand, Advocate for the petitioner. Ms. Anjali Kukkar, Central Govt. standing counsel for the respondents. **** VINOD K. SHARMA, J. (ORAL) The petitioner invoked the jurisdiction of this Court under Articles 226/227 of the Constitution of India, praying for a writ of certiorari, for quashing the impugned order dated 15.3.2007, attached as Annexure P-2 to this writ petition, whereby the claim of the petitioner for grant of family pension under the Central Civil Services (Extra Ordinary Pension) Rules stood rejected. The petitioner also prayed for a writ in the nature of mandamus directing the respondents to release extra ordinary family pension on account of demise of her son. The impugned order Annexure P-2, vide which the request of the petitioner for grant of family pension was declined, reads as under :- CWP No. 5188 of 2010 -2- ***** “ Please refer to your office letter No. P.III.95/06/-GC-Pen Dated 22/02/07. 2. Pensionary benefits in the case have been authorised as per details given below and PPO issued to the Central Pension Accounting Office, New Delhi. 1. PPO No. _______________ (a) .........Pension:Rs..................p.m. (b) Family pension Rs. Dependant family pension is not entitled as income of father of deceased government servant is more than Rs. 2550/- p.m. i.e. Rs. 9816/-p.m. (c) Relief on Pension : as admissible from time to time. (d) Death / Retirement Gratuity : Rs. 38,028-00 (e) Value of Commutation : Rs........ (i) Original Pension : Rs....... (ii) Less amount commuted : Rs....... (iii) Reduced Pension : Rs....... (iv) Medical allowance @ Rs. 100/- per month w.e.f............ 3. Service Book of the Govt. servant is returned alongwith GPO in duplicate, Observations as per on reverse are also pointed out for your further necessary action. Sd/- Jt. Asstt. Director (Pension) PAO, CRPF, New Delhi Copy to :- Smt. Kashmir Kaur mother of late Ct/GD Gurpreet Singh CRPF Village Baje Chak P.O. Jiwan Bal Babri, Distt. Gurdaspur State PUNJAB-143521. He may contact his Bankers on receipt of intimation from CPAO, New Delhi regarding forwarding of CWP No. 5188 of 2010 -3- ***** PPO to them. Payment of Gratuity will be made by Group Centre ALLAHABAD Bn.” The brief facts, necessary for decision of the writ petition are, that the petitioner being mother of late Constable (GD) Gurpreet Singh, who died in a mishap attributable to the act of violence by the terrorists in the performance of his duty as a member of Quick Reaction Team at Kishtwar (J&K) deployed for performing the Counter Insurgency operations,was entitled to pension claimed. The averments with regard to the circumstances leading to death of son of the petitioner as pleaded in para 4 of the writ petition reads as under :- “4. That it is submitted that on 29.09.2006, the petitioner received a telegram that her son has expired in road accident in Kishtwar. The true typed copy of the telegram dated 29.09.2006 alongwith a certificate from State Hospital is annexed herewith as ANNEXURE P1 (Colly). It is relevant to mention here that the deceased son of the petitioner Late Constable / GD Gurpreet Singh was performing operational duty against Anti National Elements as member of Quick Reaction Team (QRT in short) of the Battalion. While returning from the operational duty involving encounter with militants, an intelligence input was received that the militants have planted improvised explosive device on the un-metalled road on which the Quick Reaction Team including the deceased son of the petitioner as its fighting member were ordered to move by civil transport and CWP No. 5188 of 2010 -4- ***** on alternative cross country routes on which while returning from the said operational duty the civil transport met with an accident and resulted in death of three members of the Respondent Department including the deceased son of the petitioner. It has been learnt by the petitioner through the team members of the deceased son of the petitioner that a detailed Court of Inquiry into all these aspects has already been conducted to investigate into the circumstances resulting in death of the deceased son of the petitioner.” The petitioner claimed extra ordinary family pension on the ground, that the employees of the respondents by virtue of Rule 52 of the Central Reserve Police Rules are entitled to wound, injury or family pension or gratuities as laid down in Central Service Regulations or the Central Civil Services (Extra ordinary Pension) Rules, 1939. The Rule 52 of the Central Reserve Police Rules, 1955 reads as under :- “52. WOUND, INJURY OR FAMILY PENSION OR GRATUITIES All members of the force on duty or on duty with a military force shall be entitled to wound,injury or family pension or gratuities as laid down in civil services regulations or the Central Civil Services (Extra Ordinary Pension) Rules, 1939 as may be amended from time to time.” It is also the case of the petitioner, that Central Civil CWP No. 5188 of 2010 -5- ***** Services (Extra Ordinary Pension) Rules, 1939 deal with the extra ordinary family pension. The pension covered under the Act is to be paid once the conditions laid down under the Rule 3-A of the rules is fulfilled. The Rule 3 A of the Central Civil Services (Extra Ordinary Pension) Rules, 1939 (As amended from time to tile) reads as under :- 3-A. (1)(a) Disablement shall be accepted as due to Government service, provided that it is certified that it is due to wound, injury or disease which, (i) is attributable to Government service, or (ii) existed before or arose during Government service and has been and remains aggravated thereby. (b) Death shall be accepted as due to Government service provided it is certified that it was due to or hastened by, (i) a wound, injury or disease which was attributable to Government service, or (ii) the aggravation by Government service of a wound, injury or disease which existed before or arose during Government service. (2) There shall be a casual connection between, (a) disablement and Government service; and (b) death and Government service, for attributability or aggravation to be conceded. Guidelines in this regard are given in the Appendix CWP No. 5188 of 2010 -6- ***** which shall be treated as part and parcel of these Rules.” The Union of India by way of letter dated 3.2.2000 determined the compensation payable for death under different circumstances and categorized the cases in five distinct categories.The category 'D' reads as under :- “CATEGORIY 'D' DEATH OR DISABILITY ATTRIBUTABLE TO ACTS OF VIOLENCE BY TERRORISTS, ANTI SOCIAL ELEMENTS, ETC. WHETHER IN THEIR PERFORMANCE OF DUTIES OR OTHERWISE. Apart from cases of death or injury sustained by personnel of the Central Police Organizations while employed in aid of the civil administration in quelling agitation, riots or revolt by demonstrators, other public servants including Police personnel, etc. bomb blasts in public places or transport indiscriminate shooting incidents in public etc. would be covered under this category.” The case of the petitioner was, that once death of the petitioner's son was attributable to the act of violence by the terrorists, then she was entitled to pension under para 3(II) of the instructions issued by the Union of India dated 3.2.2000. Para 3(II) of the instructions reads as under :- “II. Family pension Categories 'D' & 'E'-(1) Family pension in cases falling under Categories 'D' & 'E shall be determined under the existing provision of Liberalized CWP No. 5188 of 2010 -7- ***** Pensionary Awards Scheme. (2) If the Government servant is not survived by widow but is survived by child/children only, all children together shall be eligible for family pension at the rate of 60% of basic pay subject to a minimum of Rs.2500. Children allowance, as admissible now, shall stands abolished. (3) When the Government servant dies a bachelor or as a widower without children dependant pension will be admissible to parent without reference to pecuniary circumstances at the rate of 75% of pay last drawn if both parents are alive and at the rate of 60% if only one of them is alive.” The case of the petitioner is covered by para 3(II)(3) of the Government instructions, referred to above, and the petitioner is entitled to family pension as per Govt instructions. In view of the rules referred to above, the learned counsel for the petitioner contended, that the impugned order can not be sustained, as it is outcome of misreading of the Extra Ordinary Family Pension Rules, referred to above, as also the instructions of the Government. The respondents have wrongly treated the case of the petitioner under Ordinary Pension Clause 'C' by treating the death of the deceased son to be outcome of accident. The stand of the respondent was, that as the husband of the petitioner was employed and has independent income, therefore, the petitioner was not entitled to Extra Ordinary Pension , as under Rule 54 of the CCS Pension Rules it is prerequisite condition, that CWP No. 5188 of 2010 -8- ***** the parents should be wholly dependent on the deceased while he was in service. The petitioner can not be said to be wholly dependent on her son, as she was dependent on her husband. The learned counsel for the respondents also contended, that the various benefits were given to the petitioner which disentitled her to pension under the Central Civil Services (Extra Ordinary Pension) Rules. On consideration, I find no force in the defence raised by the learned counsel for the respondents. It is now settled law, that pension is a statutory /fundamental right and not a bounty. The petitioner was entitled to pension under the Rules, can not be denied the benefit, merely on the ground, that certain other benefits were released to the petitioner. The other benefits, if any, released to the petitioner were also under the Rules and no favour has been shown to the petitioner, if the Union of India released certain benefits to which the petitioner was entitled to. The contention of the learned counsel for the Union of India that under the Pension Rules, the petitioner was not entitled to pension, as it was not proved, that she was dependent on her son during his service, also cannot take away her right to pension as claimed. The Central Civil Services (Extra Ordinary Pension) Rules are applicable to the petitioner, as the petitioner fell within the category 'D' of the Government instructions dated 3.2.2000, and grant of pension was governed by para 3(II)(3) of the Government CWP No. 5188 of 2010 -9- ***** instructions, reproduced above, which authorize the family pension to the petitioner. The impugned order, therefore, is outcome of misreading of he Central Civil Services (Extra Ordinary Pension) Rules,and can not be sustained in law. Consequently, this writ petition is allowed, the impugned order Annexure P-2 is quashed. A writ of mandamus is issued to release the family pension to the petitioner under Rule 3(II)(3) of the Government instructions dated 3.2.2000. The arrears of pension due to the petitioner be also released to the petitioner within two months from the date of receipt of certified copy of this order. No costs. 14.09.2010 (VINOD K. SHARMA) 'sp' JUDGE