CWP No.10502 of 2009 1 IN THE HIGH COURT OF PUNJABAND HARYANA AT CHANDIGARH CWP No.10502 of 2009 Date of Decision 17.07.2009 Smt.Tiddo ...Petitioner Vs. Union of India and Ors. ...Respondents CORAM: HON'BLE MR. JUSTICE VINOD K.SHARMA Present: Mr.Surinder Sheoran, Advocate, for the petitioner. Ms.Anjali Kukkar, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma, Oral Notice of motion. On the asking of the court Ms.Anjali Kukkar accepts notice. CWP No.10502 of 2009 2 The facts are not in dispute. Writ petition is taken up for final disposal. The petitioner, widow of late Gnr Mothu Ram has invoked the jurisdiction of this court under Articles 226 and 227 of the Constitution of India for quashing the orders dated 19.5.2009, Annexure P.12, vide which the claim of the petitioner for family pension w.e.f. 1.3.1985 was rejected. The petitioner has also prayed for a writ of mandamus directing the respondents to release the family pension of the petitioner w.e.f. 1.3.1985. No.1242189 Late Gnr Mothu Ram, husband of the petitioner was enrolled in Artillery Regiment w.e.f. 5.6.1967. He died while in service on 3.1.1969 due to Leukaemia. The petitioner was held entitled to family pension. However, she was sanctioned ordinary family pension vide pension payment order No. F/MA/954/69 dated 17.12.1969. The petitioner after the death of Late Gnr Mothu Ram performed kareva marriage with his younger brother Moji Ram. However, she continued getting pension up to February, 1985. DPDO, Bhiwani stopped the family pension of the petitioner w.e.f. 1.3.1985 and confiscated her pension book and all other documents without any intimation to the pension sanctioning authority and since then no pension is being paid to her. On the representation made, the President of Zila Sainik Board, Bhiwani, took up the case of the petitioner with the Officer In-charge Records Artillery vide letter dated 24.2.1997. Vide order dated 10.3.1997 Artillery Records directed that payment of the family pension to the petitioner be resumed if the petitioner has not remarried and also to disclose CWP No.10502 of 2009 3 the circumstances under which the payment of family pension was stopped. No action was taken on letter written by the Artillery Records on 10.3.1997. Thereafter the Vice President of Haryana Ex. Services League, Rohtak vide letter dated 21.1.1998 attached as Annexure P.4 again requested for release of pension and further to direct DPDO office Bhiwani to receive the payment of pension. Reminder was again sent by the Artillery Record, Nasik Road, to DPDO, Bhiwani for sending reply as to why the family pension of the petitioner was stopped. It is the case of the petitioner that thereafter again number of representations were made by the petitioner for release of pension. Finally a legal notice was served upon the respondents on 15.10.2008. The petitioner's counsel issued a demand notice to the Officer In-charge-Artillery Records on 6.4.2009. Artillery records on 6.5.2009 communicated to Army Headquarters the affidavit submitted by the petitioner regarding remarriage to the younger brother of deceased Gnr Mothu Ram and request was made to the Army Headquarters to examine the case at the earliest. It was in response to the legal notice that vide impugned order Annexure P.12 her claim for pension was declined by holding that the petitioner was not entitled to the pension as she had remarried with younger brother of late Gnr Mothu Ram and was having 4 children. It was also mentioned that as per para 219 of pension regulations of Army 1961 family pension was payable to widow who has not remarried and that the family pension was admissible to widow up to the date of her death or CWP No.10502 of 2009 4 disqualification which ever is earlier. The impugned order has been challenged primarily on the ground that as per para No.219 the widow is entitled to family pension if she is not remarried. However, there is a proviso to the disqualification under Regulation 219 stipulating therein that this condition was not to apply to a widow who remarry 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. Regular No.219 of the Pension Regulations for the Army 1961 reads as under:- “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 government; (ii) he or she is not employed under Government Widow (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. Son (iv) a son is below the age of 25 years. Daughter CWP No.10502 of 2009 5 (v) daughter until she attains the age of 25 years or marriage whichever is earlier. Parents Second life Awards (special family Pension) shall be admissible to the parent(s) of the deceased and in the absence of the parents, eligible brother and sisters of the deceased of the rate of 50% of the special family pension determined vide Regulation 227(a), if the claimants was/sere largely dependent on the deceased for support and is/are in pecuniary need. Mother (v) a mother who is a widow at the time of her son's death or who becomes a widow thereafter, has not remarried. If she has remarried before her son's death, she shall remain eligible for the special family pension, unless and until she again becomes a widow and remarries. Brother/Sister (vii) The brothers/sisters were largely dependent on the deceased for support and are in pecuniary need. (viii) In the case of brother he has not completed the age of 25 years. (ix) In the case of sister, she has not completed the age of 25 years or has not married. The regulations referred to above came up for consideration before the Hon'ble High Court of Delhi in WP (C) No.1082 of 1995 titled CWP No.10502 of 2009 6 Smt.Kashmiro Devi Vs. Union of India and Ors. decided on 19.5.2008, wherein Hon'ble Delhi High Court has been pleased to lay down as under: “16. We have given our deep thought to the matter, especially taking into consideration the object of the Regulations and the factum of the petitioner being a widow of the Sepoy who died while in service. 17. It cannot be lost sight of that the object of a pension is to provide succor to the family members of a deceased personnel who has been unfortunately snatched away during the middle of his service. Such death causes trauma to the family both mental and financial. It is only the financial trauma which is sought to be remedied by providing for pension to the legal heirs of the deceased serving personnel. There are different categorizations of such pension depending on the circumstances in which the death occurred. There is no dispute that a distinction can be made between cases where a person has died while engage din active military service and a person who dies inservice on account of factors not attributable to or aggravated by military service. The second aspect itself is questionable in cases like the petitioner where the death is on account of Thrombosis when it is known that the demands of the services create their own pressures. Be that as it may, the two categories of pension have been specified where the ordinary family pension is almost half of the special family pension. The result is that in CWP No.10502 of 2009 7 case like the deceased husband of the petitioner, the pension element is itself on a lower side. 18. The proposal that on marriage of such a widow, the pension should cease cannot be quarrelled with because her dependency is gone and she goes i nto another family where she is maintained by the current husband. The respondents were, however, conscious of the fact that there was local customs prevalent where often Chadar was put by the brother of the deceased person so that the widow remains within the family and is provided support and succor. Thus, to encourage and provide for family support to such a widow that an exception has been carved out under Regulation 219 that even if a widow remarries and the marriage is with the brother of the deceased husband, the pension would not be terminated. There can be no distinction made between a widow of a person who has died by reasons attributable to or aggravated by military service and a person who has died just in service since the problems faced by the widows are identical. The difference in the cause of the death, however, has resulted indifference in the value of the pension. 19. The object of maintaining the widow in the commune of the family remains the same which is the cause for the exception carved out in Regulation 219. 20. It is no doubt true that Regulation 212 is based on the CWP No.10502 of 2009 8 Administrative Instructions as incorporated therein. Here, remarriage disentitles her to pension. Similarly, Regulation 216 under the heading of Special Family Pension also refers to family pension. No doubt, the first sentence of regulation 219 does make a reference to Regulation216, but that is in the context of the number of heirs specified therein which include not only heirs as enlisted in Regulation 216, but also under Regulation 212 (Regulation 212 having more restricted number of heirs). The case of the widow falls under the heading General. The disqualification in case of a widow, who is remarried, is qualified by the condition that as long as she is remarried to the brother of the deceased husband and continues to live a communal life and / or contributes to the support of the other living eligible heirs, she would not be disentailed to pension. We see no reason why this principle should not equally apply to the ordinary family pension under regulation 212 and should be restricted only to special family pension under Regulation 216. A contrary view would result in an arbitrary distinction which would be hit by Articles 14 and 21 of the Constitution of India. 21. Learned counsel for the respondents did seek to emphasize that the PPO issued to the petitioner itself provided for the restriction, but then if the PPO is contrary to the Regulations being the Administrative Instructions, it cannot CWP No.10502 of 2009 9 hold fort. It can also not be lost sight of that these Regulations were Administrative Instructions are of guidance of the Authorities and does not really have a statutory force. There can be no rationale differentia much less intelligible differentia between the widow in receipt of a special family pension and an ordinary family pension so far as her lack of disqualification on remarriage to the brother of the diseased husband is concerned. This view is fortified by the pronouncements of the Punjab and Haryana High Court referred aforesaid. We are included to follow the same line. 22. We are, thus, of the considered view that the petitioner is entitled to the ordinary family pension since she has married only the brother of her deceased husband and falls within the exception category. However, in view of the delay on the part of the petitioner in approaching the Court, it is not possible to direct payment of arrears to the petitioner beyond the period of three years prior to the date of filing of the petition which is 25.3.1o995 and thus, the petitioner would be entitle dot the said ordinary family pension from April, 1992 onwards.” The case of the petitioner is squarely covered by the judgment of Hon'ble Delhi High Court in the case of Smt.Kashmiro Devi Vs. Union of India and Ors (supra). The writ petition is accordingly allowed. The impugned order Annexure P.12 is ordered to be quashed and writ of mandamus is issue CWP No.10502 of 2009 10 directing the respondents to make the payment of family pension, wrongly stopped w.e.f. 1.3.1985 and to make the payment of arrears till date of filing of petition within a period of 3 months from the date of receipt of certified copy of the judgment. The respondents are further directed to continue paying family pension to the petitioner during her life time. (Vinod K.Sharma) 17.07.2006 Judge rp