Civil Writ Petition No.14370 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 16.9.2009 Ranjit Kaur ..Petitioner Versus Union of India and others ..Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT:- Mr.B.S.Sehgal, Advocate for the petitioner. Permod Kohli, J. Notice of motion. On the asking of the Court, Ms.Ranjana Shahi, Central Government Standing Counsel accepts notice on behalf of Assistant Solicitor General. Keeping in view the nature of controversy, this petition is disposed of at the motion stage with the consent of learned counsel for the parties. Petitioner's husband Amrik Singh No.3392598 was serving in the Indian Army. While on casual leave, he died on 17.7.1995. The family pension claim of the petitioner was forwarded to CDA (P) Allahabad vide letter dated 10.11.1995 (Annexure P2). An amount of Rs.375/- per month was sanctioned as ordinary family pension with effect from 18.7.1995 vide PPO No.F/NA/ 707/96. The petitioner claims that she was entitled to special family pension and her claim for special family pension was again recommended vide letter dated 9.4.1996 from Record Office. This claim, however, was rejected vide letter dated 1.7.1996 by PCDA (P) Allahabad vide rejection order dated 24.6.1996. The petitioner was advised to file an appeal. In the meantime, the Civil Writ Petition No.14370 of 2009 2 petitioner re-married with Shri Surjit Singh, the real brother of her late husband on 18.7.1995 and on that basis the family pension of the petitioner was stopped vide letter dated 29.7.1996. Against the aforesaid order, an appeal was preferred by the petitioner on 2.9.1996. The said appeal was rejected as communicated vide letter dated 23.10.2001. The petitioner kept on making representations thereafter also. The petitioner till date did not receive any response or reply of her application and never communicated the rejection of her appeal. It is contended on behalf of the petitioner that the petitioner is entitled to special family pension as army personnel while on casual leave is deemed to be on duty and the death of the husband of the petitioner was attributable to army service. It is further contended on behalf of the petitioner that re-marriage with the real brother of the deceased-husband of the petitioner does not disqualify her from receiving family pension in view of the specific provisions contained in Regulation 219 of the Pension Regulations for the Army, 1961. I have heard learned counsel for the parties. Rule 10 of the Leave Rules of the Army clearly provides that the casual leave counts as duty except for the circumstances specified under Rule 11 (a). Regulation 219 relied upon by the petitioner is reproduced hereunder:- “219, A relative specified in Regulation 216 shall be eligible for the grant of family pension, provided:- General. i) he or she is not in receipt of another pension from Civil Writ Petition No.14370 of 2009 3 Government, ii) he or she is not employed under Government (but see regulation 222). iii)A widow has not remarried. This condition shall not apply to a widow who remarried her deceased husband's brother, and continues to live a communal life with and/or contributes to the support of the other living eligible heirs.” Under the aforesaid Regulation where a widow is remarried to the deceased husband's brother and continues to live a common life and contributes to the support of the other living eligible heirs, she is eligible for family pension notwithstanding that she has remarried. Controversy that the petitioner's husband died on leave has also been decided by a number of judgments. Regulation 213 provides grant of special family pension and reads as under:- “213. A special family pension may be granted to the family of an individual if his death was due to or hastened by- (a) a wound, injury or disease which was attributable to military service, or (b) the aggravation by military service of a wound, injury or disease which existed before or arose during military service.” Regulation 216 specifies the individual who may be entitled to and eligible for family pension, the same is reproduced as under:- “216. The following members of the family of a deceased Civil Writ Petition No.14370 of 2009 4 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. © Mother. (d) Son, actual and legitimate. (e) Daughter, actual and legitimate. Note:- The term “father” and “mother” (or “parents”) used in the above or any other rule in this sub-section shall also be deemed to include such putative parents (or surviving parent as the case may be) as had not contracted a lawful marriage, but were living as husband and wife at the time of or got lawfully married subsequent to, the conception of the deceased member of the forces.” From the reading of Regulation 213, it is apparent that the special family pension is payable to the family of an individual if the death was attributable to military service or aggravated to military service. Rule 10 of the Leave Rules of the Army specifically provides that an army personnel while on casual leave is deemed to be on duty. The petitioner's husband while on casual leave was on duty and the death on duty envisaged under Regulation 213 falls within the purview of attributable to army service. Hence rejection of claim of the petitioner for grant of special family pension on that ground is not sustainable in law. The right of the widow remarrying brother of the deceased- husband has again been considered by a Division Bench of this Court in Civil Writ Petition No.14370 of 2009 5 Kiran Kumar versus State of Haryana and others, 2004 (2) SLR 694 and while relying upon an earlier judgment of this Court reported in Kamaljit Kaur v. Union of India, 1997 (3) PLR 441, it was held that a “widow”, who remarriages brother of the deceased and is living with the eligible heirs of the family, is entitled to family pension. In view of above circumstances, this petition is allowed, impugned orders (Annexures P5, P8 and P11) rejecting the claim for special family pension are hereby set aside and respondents are directed to sanction special family pension in favour of the petitioner. However, the claim of the arrears shall be restricted to three years preceding the filing of the present writ petition. (Permod Kohli) 16.9.2009 Judge AS Whether to be referred to reporter?Yes