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SMT. CHANDRA KALI versus UNION OF INDIA THRU' SECY. DEFENCE, NEW DELHI AND OTHERS

High Court of Judicature at Allahabad

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Smt. Chandra Kali v. Union Of India Thru' Secy. Defence, New Delhi And Others - WRIT - A No. 30008 of 2005 [2007] RD-AH 502 (9 January 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                          Court No. 38

Civil Misc. Writ Petition No. 30008 of 2005

Smt. Chandra Kali

Versus

Union of India and another.

Hon'ble V.K. Shukla,J.

Petitioner has approached this court requesting therein that writ in the nature of certiorari  be issued by quashing letter dated 4.3.2005 issued by Respondent No.4 and letter dated 2.4.2004 qua non sanctioning of Ex-Gratia of Rs. 1 Lac and further to grant War Injury Pension, Retirement Gratuity and also to pay ex-gratia of Rs. One lac out of the Army Central Welfare Fund to the petitioner.

Brief background of the case as mentioned in the writ petition is that petitioner is widow of late Sridhar, who was enrolled in the Indian Army in the Army Supply Corps, he was  M.T. driver. Petitioner's husband died in action during the Second World War in the Burma operations. Petitioner has contended that with coming into force the rationalization of pension structure for Pre-1996 Armed Forces Pensioners. Revision of liberalized Family pension, the petitioner's family pension was increased to Rs. 2,920/- w.e.f. 1.1.1996, and she was paid arrears of pension also. Petitioner has contended that she requested for War Injury Pension and same has been turned down by mentioning that petitioner is not eligible for liberalized family pension/War Injury Pension. Petitioner has contended that she has been given benefit of  liberalized family pension,  as such she is also entitled to War Injury Pension  and also entitled  to Retirement Gratuity  in accordance with Government of India letter dated 30.11.1987. Petitioner has contended that she has taken up the matter regarding Family Pension with the Queen of England vide her representation dated 24.3.2004 and then Ministry of Defence wrote to petitioner that when India gained independence on 15.8.1947, the Government of India Pakistan and Burma assumed full responsibility for those who served in the Armed Forces, prior to, and after, Independence. Petitioner has contended that as nothing was done, as such present writ petition has been filed.

Counter affidavit has been filed  and therein it has been contended that on implementation of recommendations of Vth Central Pay Commission, the Special Family Pension of petitioner has been revised to Rs. 2550/- per month w.e.f. 1st January, 1996 by the Pension Sanctioning Authority, the Principal Controller of Defence Accounts (Pension) and the same was intimated by Principal Controller of Defence Accounts, Allahabad vide letter No. A/PNB/IX/ Azamgarh/04 dated 13 September, 2004 and this was addressed to the Pension Disbursing Officer Viz. Allahabad Bank, Azamgarh (U.P.) with copy to  petitioner. The nature of Family Pension entitled to  petitioner has clearly been mentioned as  "Special Family Pension" i.e. petitioner  will be entitled for Special Family Pension @ Rs. 2550/- per month w.e.f. 01.01.1996 till widowhood and dearness relief is also admissible/payable from time to time as sanctioned from Government.  The petitioner is in receipt of this pension. The petitioner earlier through her advocate had approached ASC Records (South) for grant of Liberalised Pensionary Award in terms of Part IV of Government of India, Ministry of Defence letter No. 1 (5)/87/D (Pensions/Services) dated 30 October, 1987. The provisions of the said letter is applicable to those Personnel who were in service as on 01.January, 1986 and have joined/join service thereafter. The petitioner's husband was killed on 09 December, 1945, as such, the provisions of Government of India, Ministry of Defence letter No. 1(5) 87/D )Pensions/Services) dated 30 October, 1987 regarding Liberalized Family Pension is not applicable in her case in terms of para 2.1 of said letter. In reply to her representation, petitioner was intimated that revision of her family pension has been ordered by Principal Controller of Defence Account (Pension) Allahabad w.e.f. 01 January, 1996. However, while intimating this, the Special Family Pension was inadvertently deleted in the communication letter and instead the Liberalize Family Pension clause was included. In this background, petitioner is not at all entitled for the benefit as prayed, as petitioner's husband was killed on 9.12.1945.

Rejoinder affidavit has been filed and therein statement of fact mentioned in the counter affidavit has been disputed and that of writ petition has been reiterated. It has also been contended that petitioner has been paid only Rs. 20,000/-, whereas she is entitled to be paid Rs. 1,00,000/- as she is 80 years old and she  has  hardly few years to live.

After pleadings mentioned above, have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the  parties.

Sri Satyajit Mukerji, Advocate, learned counsel for  petitioner contended with vehemence that in the present case policy decision dated  24.1.1972 is creating class among class, qua incumbents, who had participated  in the War and same being welfare scheme, same ought to have been implemented to each and every member of the force, rather confining it  to certain class of  member of Indian Army, as such writ petition, deserves to be allowed..

Sri B.S. Pankaj, Advocate, learned counsel for the respondents on the other contended that scheme has to be implemented, as it has been framed and drawn and claim of petitioner does not fall within the ambit of aforementioned rules, as such no relief can be accorded.

After respective arguments have been advanced, relevant policy has been perused. Policy in question clearly reflects that same is  the liberalize  pensionary, award for war widows and war disabled  servicemen. Said pension scheme has been made applicable  qua the  category of  incumbents, specified therein. Relevant extract of the Scheme dated 24.2.1972 is being extracted  below:-

'Subject:- Liberalised pensionary awards for war widows and war -disabled servicemen

In partial modification of the existing rules and ordered relating to the grant of special family pensionary awards and disability pension. I am directed  tanconvay  the  sanction of the  President to payments being made as indicated in Annexure-1  and II to this letter, in the case  of officers and personnel, as well as NCaE of the armed forces including the Army Postal Service and the embodied units of the Territorial Army) and of officers and personnel of the Defence Security Corps, killed in action of disabled on account of injuries sustained in the recent operations against Pakistan  commencing from 3rd December, 1991. The awards sanctioned in this letter will be admissible alone in the case of the above categories of personnel killed in action or disabled on account of injuries sustained.

(i)in the international wars of 1965 (including Kutch and Kargil operations), 1962 and 1947-48 (Kashimi operations), as well as the Gas and Hyderabad operations;

(ii)(a) as a result of fighting in war-like operations or border skirmishes  either with Pakistan and the cases-fire line or any other country.

(b) while fighting against armed hostiles like Ngas and Mizos.

(C) during fighting in service with peace -keeping Missions abroad"            "                "            "

as per Ministry of Defence letter No.        195163/Pan/C,dated the 16th September, 1066.

(iii)during laying or clearance of mines including enemy mines, as also mine-sweeping operations, between one month before the commencement and three months after the conclusion of the operation; as per Ministry of Defence letter No. a/14670/VII/AG/PD4/142-5/Pan/C, dated the 2nd September, 1970 and in operations 'Cantue Lily' beginning from 25th March, 1971 and the associated Naval operations beginning from 15th August, 1971 as per Ministry of Defence letter No. A/42128/AG/PS3/(a)/1047/5/D/Pay/Services), dated 30th November, 1971, and No. PA/3819/NHQ/1101-5/D/Pay/Services), dated the 10th December, 1971.

2 The benefits will be admissible  with effect from Ist February, 1972, or the date of death or disablement of the serviceman, as the case may be whichever is later.

3. Payments already made on account of pensionary awards only in respect of any period following the casualties otherwise than in accordance with the letter, will be adjusted against payments admissible hereunder.

4. The wards sanctioned in this letter are in the nature of a special dispensation and will not be subject to alteration as a result of any revision of the pay and pension structure as may be  sanctioned in future. Temporary and/or ad-hoc, increases in pension sanctioned from time to time will not be admissible in addition to those special awards. However, where and far as  long as awards admissible under the existing rules and orders happen to be more favorable than those sanctioned hereunder, the higher entitlements will be payable.

5. This issues with the concurrence of the Ministry of Finance (Def) vide their u.o. No. 565/Addl. F.A. (D) of 1972'

The area of operation of said scheme has been clearly mentioned in the aforementioned scheme. Petitioner's case is not at all covered under the said scheme, as such qua the said scheme  no benefit whatsoever can be extended to petitioner.

Petitioner has placed heavy reliance on judgment reported in AIR 1983 S.C. 138 D.S. Nakara and others Vs. Union of India, paragraph 42 and 43 for the preposition, that this particular circular has  classified pensioners into two classes, and same is not based on any rational principle, as such said classification is totally arbitrary, and same shall stand extended to each and  every category of pensioner. Petitioner has also placed reliance on the judgment dated 18.5.1993 in the case of Ram Roop Singh Vs. Union of India, for the preposition, that provision be made applicable, without there being the date, and entire consequential benefit be extended. In the  case of D.S. Nakara, incumbents covered under Central Civil Service (Pension) Rules, 1972, when qua them different criteria was sought to be enforced, based  on date of retirement for revised formula for  computation of pension same was struck down, holding that pensioners  covered under Central Civil Services (Pension) Rules, 1972 for a class as whole, and date of retirement is artificial division. In the case of Ram Roop Singh, D.S. Nakara case has been followed, ass in the said case no distinguishing feature had been shown. Said judgment will not come to the rescue of petitioner, inasmuch as, in the present case pension scheme is very clear and categorical and class  of persons, who are entitled for the aforementioned benefit have been clearly provided for. The nomenclature of the scheme, speaks for itself, by describing the same as special family pensionary awards and disability pension. Benefit of  said scheme has been made applicable qua each and every incumbent, starting w.e.f. 1947-48 Kashmir operations, and onwards, who has been disabled on account of injuries sustained in such operation or killed in connection with such operation, then benefit to his widow. All these operations are qua free independent India. This scheme is not at all  applicable to incumbents, who under the colonial rule, fought for the Queen of England, as a member of Indian Army. Said incumbents for all together separate and distinct class qua the incumbents who have laid their lives or have been disabled for free and independent India.  Policy decision  has been taken to extend benefit to incumbents, who have been disabled or to their widow, who have laid their lives for free independent India. Here there is no classification as there is only one group, i.e. who had fought for the  cause of independent India, as such as far as petitioner is concerned, she cannot be derive any benefit. Hon'ble Apex Court in the case of Commander Head Quarter, Calcutta and others Vs. Capt. Biplabendra Chandra, JT 1997(10) SC 371, has taken the view that pension is payable to them who fall within the ambit of Rules. Similar view has been taken in the case of Tamil Nadu Electricity Board Vs. R. Veerasamy and others 1999 (2) ESC 1030 (SC).

As far as  payment of ex-gratia amount of Rs. 1,00,000 is concerned, same is not at all vested right of petitioner. Authority concerned keeping in view of financial constrains of petitioner, has already passed order for making payment of Rs. 20,000/-. Petitioner is old lady of 80 years, at this juncture of life, she should not be permitted to suffer, as such liberty is given to petitioner to make fresh representation alongwith certified copy of this order within one month from today before the Chief of the Army Staff, Army Headquarter, South Block, D.H.Q. Post Office, New Delhi, who shall  look into the matter and take appropriate,  derision, preferably within period of three months from the date or production of certified copy of this order, if something could be done for  the petitioner and other similarly situated incumbents who by this time would be very much less in number. Whatever decision is taken, same be communicated to petitioner thereafter.

With  the above observations, writ petition is dismissed.

No orders as to cost.

Dt. 9.1.2007

T.S.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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