Himachal Pradesh High Court
Bhagwati Devi And Another vs Union Of India And Others on 5 July, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1205 of 2001 Reserved on 02.07.2018 .
Decided on : 5th July, 2018.
Bhagwati Devi and another ...Petitioners.
Versus
Union of India and others ..Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 Yes For the Petitioners : Mr. K. B. Khajuria, Advocate.
For the Respondents : Mr. Shashi Shirshoo, Central Government Counsel, for respondents No. 1 to 4.
Ms. Ranjana Parmar, Senior Advocate, with Ms. Rashmi Parmar, Advocate, for respondent No.5.
Tarlok Singh Chauhan, Judge.
The petitioners are the mother and father of late Sh. Balbir Singh, who in the year 1995 was enrolled in Assam Rifles and unfortunately died in an encounter in terrorist attack on 7.4.1998. Earlier to that, Balbir Singh had got married with one Saroj Kumari, respondent No.5 on 2.12.1996 and after his death, it was she, who was being paid the family pension.
1Whether reporters of Local Papers may be allowed to see the Judgment ? Yes ::: Downloaded on - 06/07/2018 23:00:12 :::HCHP 2 However, respondent No.5 solemnized the marriage with one Ravinder Singh and according to the petitioners, this disentitled her to the family pension which then ought to have been paid to .
them. It is in this background that they filed the instant petition for the grant of following reliefs:
"(i) To quash and setaside the impugned orders Annexures P1 to P3 and to consider and grant full family pension to the petitioners and in the alternative part of the family pension may very kindly be ordered to be granted to the petitioners in the interest of law and justice.
(ii) Rule 4 of LPA Pension Rules may very kindly be summoned from the respondents and the same may very kindly be struck down in the interest of law and justice."
2. The official respondents have opposed the petition by filing reply wherein it is submitted that as per the provisions of CCS Rules and various judgments of the Hon'ble Supreme Court, parents are not entitled to pension in the event of death of any employee of Para Military Forces. The son of the petitioners was enrolled in Assam Rifles and was killed on 7.4.1998 at Nagaland.
After his death, all his pensionary benefits of Rs.8,66,859/ have been paid to Saroj Kumari, respondent No.5. The respondent No.5 was also paid Rs.82,500/ of his i.e. Balbir Singh share of Assam Rifles Group Insurance Scheme benefits. Thereafter, Saroj Kumari was granted Rs.3050/ as Liberalised Pensionary Award and after her remarriage, she was granted ordinary family ::: Downloaded on - 06/07/2018 23:00:12 :::HCHP 3 pension of Rs.1275/ to which she was entitled as per Rule 4 of CCS (Pension) Rule (Liberalised Pensionary Award). On merits, the factum of remarriage of Saroj Kumari was admitted. However, it .
was reiterated that as per the provisions, referred to above, she was entitled to initially Liberalised Pensionary Award and after remarriage to the grant of ordinary family pension under the CCS (Pension), Rules and pension as aforesaid.
I have heard learned counsel for the parties and have gone through the material placed on record.
3. Mr. K.B. Khajuria, learned counsel for the petitioners has vehemently argued that the widow on account of remarriage had incurred a disqualification and, therefore, the parents of the deceased personnel would become eligible for grant of family pension. According to him, the provisions in the Liberalised Pensionary Awards were framed with a view to render financial assistance to the family of the deceased Armed Force Personnel on whom they were dependent for their survival. Therefore, in such circumstances, it was the parents of the deceased Armed Force Personnel, who would be entitled to the family pension.
4. The submissions made by learned counsel for the petitioners are vehemently opposed by the respondents by urging ::: Downloaded on - 06/07/2018 23:00:12 :::HCHP 4 that it is respondent No.5, who alone is entitled to the pension notwithstanding the fact she has got remarried.
5. In order to appreciate this contention, one will have to .
refer to the provisions contained in Liberalised Pensionary Awards as it is not in dispute that the instant case would be governed by the said Awards.
6. The Government of India has framed Liberalised Pensionary Awards (for short LPAs) in the case of death/disability as a result of attack by or during action against extremists, anti social elements etc. effective from 01.01.1986, copy whereof has been annexed by the official respondents with their reply as Annexure R1. The Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Pension and Pensioners' Welfare, O.M. No.2/6/87PIC(ii), dated 7th August, 1987 deals with the following subject:
"Liberalised Pensionary Awards in the case of death/disability as a result of (I) attack by or during action against extremists, antisocial elements, etc., and (ii) action against enemy in International War or Border Skirmishes - modifications on the recommendations of the Fourth Central Pay Commission."
7. In terms of the aforesaid O.M., the earlier O.M. dated 9.11.1984 has been modified to the following effect: ::: Downloaded on - 06/07/2018 23:00:12 :::HCHP 5 "A. Family Pension:
3.1. The existing distinction with reference to basic pay at the time of the death of the Government servant for grant of family pension will be dispensed with. In all cases of death of Government servants .
while performing duties as a result of attack by or during action against extremists, dacoits, smugglers and antisocial elements, etc., the widow will be entitled to family pension equal to last pay drawn by the deceased Government servant. The said family pension shall be admissible to the widow until her remarriage/death. During this period children's allowance and children's education allowance will not be admissible.
3.2. In the event of remarriage of the widow, ordinary family pension under C.C.S. (Pension) Rules, 1972 will be admissible to her from the date following the date of her remarriage. From the said date children will be allowed children's allowance as specified in paragraph 3.5.
3.3. 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 following rates and also draw in addition the Children's Allowance specified in para 3.5: Basic pay of Government Monthly family pension servant on the date of death
(i) Not exceeding Rs.1,500 ... 50% of basic pay.
(ii) Exceeding Rs.1,500 but not 40% of basic pay
exceeding Rs.3,000 subject to a minimum
of Rs.750.
(iii) Exceeding Rs.3,000. 30% of basic pay subject to a minimum of Rs.1,200 and maximum of Rs.2,500.
The above family pension shall be payable to the children for the period during which they would have been eligible for family pension under the C.C.S. (Pension) Rules, 1972. The family pension shall be paid to the seniormost eligible child at a time on the lines on which family pension is granted under the C.C.S. (Pension) Rules, 1972."
8. Likewise, dependent pension under the Award is mentioned in para 3.4 and reads thus:
::: Downloaded on - 06/07/2018 23:00:12 :::HCHP 6"3.4. Where the Government servant dies as a bachelor or as a widower without children, pension will be admissible to parents without reference to their pecuniary circumstances at 3/4th of pay last drawn by the Government servant for both parents and .
at 3/4th of this rate for a single parent. On the death of one parent dependent pension at the latter rate will be admissible to the surviving parent."
9. Identical and rather parimateria provisions as contained in sub section (4) of Section 4 of the consolidated orders on LPAs, contained in GOI, Department of Pension and Pensioners Welfare O.M. No.33/5/89P & P.W.(K), dated 9 th April, 1990 as modified by O.M. No. 45/22/97P & PW( C) dated 3 rd February, 2000, came up for consideration before the learned Single Judge of Kerala High Court in Panchami vs. Union of India 2013 (2) KerLT 393 : 2013 (2) KerLJ 724 and it was held that on a reading of the aforesaid O.M. it was found that the family pension is intended to all the dependents of the deceased. Hence, when one member is disqualified (widow), other members are eligible for family pension. Since on remarriage of the widow, she is residing with her new husband at the new residence and it can therefore be reasonably expected that she may not be in a position to look after the parents of the deceased. On disqualification of the widow on remarriage, the parents are eligible for LPA subject to the limits mentioned in sub section (4). However, at the same time, it ::: Downloaded on - 06/07/2018 23:00:12 :::HCHP 7 was clarified that since a sum is being paid to the widow as ordinary family pension on remarriage, the same can be deducted from the LPA which was granted to the widow initially. The .
parents are thus eligible for the balance amount of the LPA subject to the limits mentioned i.e. 75% for parents of the pay last drawn by the deceased government servant.
10. At this stage, it shall be apposite to refer to the relevant observations as contained in the aforesaid judgment which reads thus:
"(2.) The learned counsel for the petitioners submits that as per subs. (4) of S. 4 of the consolidated orders on LPA [GOI, Department of Pension and Pensioners Welfare, O.M. No. 33/5/89P & P.W.(K), dated the 9th April, 1990 as modified by O.M. No. 45/22/97P & PW(C) dated the 3rd February, 2000], the parents are eligible for 75% of the pay last drawn by the deceased and a single parent is eligible for 60% of the pay last drawn without reference to the pecuniary circumstances of the parents provided the government servant dies as a bachelor or as a widower without children. S. 4 of the consolidated orders on L.P.A. reads as follows:
4. Benefit to the family in the event of the Death of the Government Servant - family pension under categories 'D' & 'E'.
1) If the Government servant is survived by the widow, she will be entitled to family pension equal to the pay last drawn by the deceased Government servant. The said family pension shall be admissible to her for life or until her remarriage.
::: Downloaded on - 06/07/2018 23:00:12 :::HCHP 82). In the event of remarriage of the widow, family pension will be allowed at the rates of family pension and subject to the conditions laid down for family pension under the CCS (Pension) Rules, 1972 from the .
date following the date of her marriage.
3). 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% basic pay, subject to a minimum of Rs.2500/ Children's Allowance, asadmissible now, stands abolished.
The above family pension shall be payable to the children r for the period during which they would have been eligible for family pension under the CCS (Pension) Rules, 1972.
The family pension shall be paid to the senior most eligible child at a time on the lines on which family pension is regulated under the CCS (Pension) Rules, 1972.
4). Where the Government servant dies as a bachelor or as a widower without children, dependant person will be admissible to parents without reference to the pecuniary circumstances at 75% of the pay last drawn by the deceased Government servant for both parents and 60% of the pay last drawn by the deceased Government servant for a single parent. On the death of one parent dependant pension at the latter rate will be admissible to the surviving parent.
(3.) The learned counsel for the petitioners placing reliance upon the decision reported in Padmavathy Amma v. Union of India & Ors.,2009 4 KerLT 456 , submits that upon disqualification of one member the other dependent family members are eligible for the family pension. The operative portion of the said decision reads as follows:
::: Downloaded on - 06/07/2018 23:00:12 :::HCHP 94. According to me, the decision in Kunhami's case (supra) is squarely applicable in this case and the respondents, therefore, cannot legally canvass the position that incurring of disqualification by the widow on account of remarriage would not make the mother of the concerned deceased personnel eligible for the grant of .
family pension. The provisions under the Regulations were framed with a view to render financial assistance to the family of the deceased Armed Force Personnel on whom they were dependent for their survival. Admittedly, in this case, after the death of the concerned person, family pension was granted to the primarily eligible person, who is his widow. She was drawing pension and thereafter on account of her remarriage she incurred disqualification to continue to draw the pension. It is only thereafter that the petitioner who is the mother of the deceased Unni Pillai applied for family pension.
Indisputably, mother of a deceased Armed Force Personnel is an eligible family member to draw family pension. Going by the decision of this Court in Kunhami's case (supra) rendered relying on the decision of the Hon'ble Apex Court in S.K. Mustan Bee v. The General Manager South Central Railway & Anr. reported in (JT 2002 SC 50), the said reason cannot be assigned to deny family pension to a person like the petitioner. So also, no provision was brought to my notice under the Army Regulations by the respondents which would permanently disentitle ordisqualify other surviving, eligible family members for the grant of family pension on the death or disqualification of the 'family pensioner' subject to the order of priority. In short, the respondents cannot assign the ground that the primarily eligible person viz., the widow was originally sanctioned the family pension and was drawing the same and therefore, the next eligible family member is ineligible to claim family pension even subsequent to the incurring of disqualification by such 'family pensioner'. Accordingly, Ext.P6 is quashed. Since the sole objection raised for granting family pension to the petitioner was thus found unmerited and untenable, there cannot be any further impediment for the grant of family pension to her. Therefore, there shall be a direction to the respondents to sanction family pension including arrears due, to the petitioner within three months from the date of receipt of a copy of this judgment.
(4). On a reading of the aforesaid OM, it is found that the family pension is intended for all the dependents of the deceased. Hence, when one member is disqualified (widow), other members are eligible for family pension. Since on re marriage of the widow, she is residing with her new husband at the new residence, it can be reasonably expected that she may not be in a position to look after the parents of the deceased. On disqualification of the widow on remarriage, the ::: Downloaded on - 06/07/2018 23:00:12 :::HCHP 10 parents are eligible for LPA subject to the limits mentioned in sub Section (4). Since a sum is being paid to the widow as ordinary family pension on remarriage, the same can be deducted from the LPA which was granted to the widow initially. The parents are eligible for the .
balance amount of the LPA subject to the limits mentioned i.e., 75% for parents and 60% for a single parent, of the pay last drawn by the deceased government servant. Therefore, I direct the 1st respondent to release pension to the petitioners within three months from the date of receipt of a copy of this judgment. This writ petition is disposed of as above."
11. Thus, it would be seen from the above, that the issue in hand is squarely covered by the aforesaid judgment more particularly when the private respondent has not been able to show any contrary law on the subject. Moreover, the learned counsel for the private respondent has not been able to convince much less persuade this Court to take different view than the one taken by the Kerala High Court.
12. It is apposite to record herein that the Hon'ble Supreme Court in its decision in case titled Neon Laboratories Limited vs. Medical Technologies Limited and Others (2016) 2 SCC 672, has observed that every High Court must give due deference to the law laid down by the other High Courts. It is apt to reproduce para 7 of the judgment, which reads thus:
"7. The primary argument of the DefendantAppellant is that it had received registration for its trademark ROFOL in Class V on 14.9.2001 relating back to the date of its application viz. 19.10.1992. It contends that the circumstances as on the date of ::: Downloaded on - 06/07/2018 23:00:12 :::HCHP 11 its application are relevant, and on that date, the Plaintiff Respondents were not entities on the market. However, the DefendantAppellant has conceded that it commenced user of the trademark ROFOL only from 16.10.2004 onwards. Furthermore, it .
is important to note that litigation was initiated by Plaintiff Respondents, not DefendantAppellant, even though the latter could have raised issue to PlaintiffRespondents using a similar mark to the one for which it had filed an application for registration as early as in 1992. The Defendant Appellant finally filed a Notice of Motion in the Bombay High Court as late as 14.12.2005, in which it was successful in being granted an injunction as recently as on 31.3.2012. We may reiterate that every High Court must give due deference to the enunciation of law made by another High Court even though it is free to charter a divergent direction. However, this elasticity in consideration is not available where the litigants are the same, since Sections 10 and 11 of the CPC would come into play. Unless restraint is displayed, judicial bedlam and curial consternation would inexorably erupt since an unsuccessful litigant in one State would rush to another State in the endeavour to obtain an inconsistent or contradictory order. Anarchy would be loosed on the Indian Court system. Since the Division Bench of the Bombay High Court is in seisin of the dispute, we refrain from saying anything more. The Plaintiff Respondents filed an appeal against the Order dated 31.3.2012 and the Division Bench has, by its Order dated 30.4.2012, stayed its operation."
13. In view of the aforesaid discussion, I find merit in this petition and the same is accordingly allowed and the petitioners are held entitled for the balance amount of LPA to the extent of 75% of the pay last drawn by the deceased Balbir Singh. Since the entire amount has been wrongly paid to the widow as ordinary ::: Downloaded on - 06/07/2018 23:00:12 :::HCHP 12 family pension, then on remarriage the same will have to be deducted from the LPA which was granted to the widow initially.
The respondents are directed to release the pension to the .
petitioners within three months from the date of receipt of a copy of this judgment.
The petition is disposed of in the aforesaid terms, so also the pending application(s) if any, leaving the parties to bear their own costs.
5th July, 2018.
r (Tarlok Singh Chauhan),
(GR) Judge
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