IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 WP(C).No. 5497 of 2008(D) ---------------------------------------- PETITIONER(S): ---------------------- SREEJA, KANIYATTIL HOUSE, VELIYANAD P.O., ARAKKUNNAM, ERNAKULAM DIST. KERALA. BY ADV. MR.V.K.SATHYANATHAN RESPONDENT(S): ------------------------- 1. UNION OF INDIA, REPRESENTED BY IT'S SECRETARY, MINISTRY OF DEFENCE, NEW DELHI. 2. PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS), DRAUPADIGHAT, ALLAHABAD. 3. OFFICER-IN-CHARGE RECORDS RECORD OFFICE, BOMBAY ENGINEERING GROUP, KIRKEE, PUNE. 4. ACCOUNTS OFFICER, DEFENCE PENSION DISBURSEMENT OFFICER, ERNAKULAM. ADV. MR.P.PARAMESWARAN NAIR,ASST.SOLICITOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.5497/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE CERTIFICATE SHOWING SERVICE PARTICULARS OF THE DECEASED SOLDIER . P2:- COPY OF THE LETTER NO.1577/863/23/F/PEN DT. 15.2.00. P2(a):- COPY OF THE PENSION PAYMENT ORDER. P3:- COPY OF THE REPRESENTATION DT. 30.7.03. P3(a):- COPY OF THE REPRESENTATION DT. 31.7.03. P4:- COPY OF THE MARRIAGE CERTIFICATE. P5:- COPY OF THE RELEVANT PROVISIONS OF THE PENSION REGULATIONS FOR THE ARMY 1961. P6:- COPY OF THE REPRESENTATION DT. 2.8.03. P7:- COPY OF THE REPRESENTATION DT. 9.11.07. P8:- COPY OF THE LETTER NO.1577863/26/F/PEN DT. 25.11.07. P9:- COPY OF THE LETTER NO.AT/DPDO.III/EKM/08 DT. 16.1.08. RESPONDENT'S EXHIBITS RI:- COPY OF THE LETTER. EXT.RII:- COPY OF THE RECEIPT DT. 29.4.08. /TRUE COPY/ P.A. TO JUDGE tss T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.5497/2008-D ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 23rd day of January, 2009 J U D G M E N T The question that is raised in this writ petition is whether a widow who was getting family pension is disentitled to get the same because of fact that she married the brother of the deceased. The deceased Sunil Kumar was a Naik in the Indian Army. The petitioner was married to him during the year 1997. He was in the Bombay Engineering Group of the army. He expired on 02/06/1999 at Base Hospital, New Delhi. Subsequently, by Ext.P2, the family pension was sanctioned to the petitioner being the most eligible legal heir to receive the same, and being the widow of the deceased she continued to receive the same. The payment depends upon the annual verification to be conducted by the P.D.A and she was continuously being present whenever required. It is pointed out that upto 31/01/2002 family pension was being credited into the S.B account of the petitioner without any interruption. The petitioner has got a case that since she was not present before the fourth respondent, D.P.D.O for annual verification during January 2002, the payment of the amount was discontinued. Even though an application was submitted on 30/07/2003 for restoration and continuation of pension, the same was not granted. W.P.(C) No.5497/2008 -:2:- 2. The petitioner married the brother of the deceased on 14/05/2002. Thereafter, she filed Ext.P7 representation seeking to restore the family pension. The reply that was received is produced as Ext.P8, wherein they have informed that the family pension cannot be restored to her on marrying the real brother of the deceased husband. This was reiterated in Ext.P9. It is in these circumstances the petitioner has approached this Court. 3. The petitioner has produced as Ext.P5, the relevant rules concerning the matter. Specific reliance is placed on regulations 219 and 249 of Pension Regulations 1961. 4. During the pendency of the writ petition, arrears upto the date of her remarriage has been paid. The respondents have filed a counter affidavit explaining their stand. According to them, the widow has been sanctioned ordinary family pension only which is payable during the widowhood. Regulation 219 pertains to special family pension. A distinction is sought to be drawn between the relevant rules by pointing out that what is relied upon by the petitioners as per Ext.P5 are not the relevant Rules. The substantial contention raised is that special family pension is payable to the widows who are granted special family pension prior to 01/01/1996 and who have re-married with the real brother of her late W.P.(C) No.5497/2008 -:3:- husband. 5. In Ext.P5 (the rules in question) regulation 219 begins with the heading -- 'Conditions of eligibility for a family pension'. Clause (iii) is important here which reads as follows:- “219. A relative specified in Regulation 216 shall be eligible for grant of family pension, provided:- (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.” Regulation 249 begins with the heading -- 'When payment of pension ceases', which reads as follows:- “The payment of pension shall cease on remarriage of the widow to a person other than the brother of the deceased or on her death, before the expiry of the period indicated in regulations 247 and 248.” 6. Obviously, the above regulations do not provide for a distinction between family pension and special family pension. The learned counsel appearing for the respondents also could not point out any other rule than that is produced by the petitioner in Ext.P5. It is pointed out that as a practice there is a distinction in it. A family pension is allowed in the W.P.(C) No.5497/2008 -:4:- case of a widow whose husband expired under ordinary circumstances attributable to own reasons and as far as the special family pension are concerned the cause of death has to be one that is attributable to military service. It is also pointed out the amount paid is on the higher side in special family pension. Therefore, the counsel for the respondent points out that whatever conditions stipulated in regulations 219 and 249 will not apply in the facts of this case. 7. In the absence of any rules providing the distinction that is drawn, it is difficult to accept the above contention. The only possible interpretation that can be drawn is that when special family pension is granted the amount granted is on the higher side because of the fact that cause of death is attributable to military service and in the other case, a person is granted family pension as enjoined by rules unrelated to the cause of death. 8. The learned counsel for the petitioner is right in submitting that as regulations 219 and 249 alone are the one provided under the rules. There cannot be a different interpretation going by its plain meaning and the meanings that could be attributed thus should be carried on to its logical conclusion. It is therefore, clear that the petitioner will come within the exceptional clause, in clause (iii) i.e., as far as her remarriage is concerned, W.P.(C) No.5497/2008 -:5:- it is only with the real brother of the deceased and if that is so, going by the said clause, the widow is entitled for continued payment of pension. The said contention is a valid one and going by the rules it is the only possible interpretation that could be adopted. If that be so, the distinction sought to be raised by the respondents based unrelated to the rules cannot be sustained. The word “special” is not mentioned in regulation 219. 9. Therefore, the writ petition is allowed. It is declared that the petitioner is entitled to be paid the family pension as was being granted to her, subject to periodical revision from time to time. Exts.P8 and P9 are therefore set aside. Even though the petitioner has claimed interest for the amount, I am not satisfied that this is a case where the respondents should be saddled with liability to pay any interest thereon. The arrears as on today shall be paid within a period of three months from the date of receipt of the copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) ms