Himachal Pradesh High Court
Union Of India & Others vs Savitri Devi on 11 March, 2020
Bench: Dharam Chand Chaudhary, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
LPA No.79/2009 a/w LPA No.174/2009 Reserved on 17.12.2019 Date of decision : 11th March, 2020 LPA No.79/2009 Union of India & Others ... Appellants vs Savitri Devi ...Respondents LPA No.174/2009 Union of India & Others ... Appellants vs Sohan Singh ...Respondents Coram:
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 Yes.
For the Appellants : Mr. Lokender Paul Thakur, Senior Panel Counsel.
For the Respondents : Mr. R.P. Singh and Mr. Surinder Saklani, Advocates.
Justice Anoop Chitkara, Judge.
Since the identical question is involved in both these appeals, hence, they are taken up together for disposal .1
Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 11/03/2020 20:28:46 :::HCHP
...2...
2. Challenging the judgment passed by learned Single .
Judge of this Court in CWP No.2175/2007, setting aside the condition No.2 imposed in letter No.B/30207/AG/ PS4(b)/931/B/D(Pens/Sers) dated 26.8.1998, holding that the income criteria of Rs.2550/- as condition precedent to grant family pension to the parents, who are wholly dependent on the deceased, a soldier by declaring Paragraph-2 of Annexure P-4 dated 26.8.1998 to be ultra vires of the Constitution of India and violative of Articles 14 and 21, the Union of India has come up before this Court by filing the present Letters Patent Appeals, seeking setting aside of the judgment.
3. Vijay Singh, the son of the petitioner (in CWP No.2175/2007), was enrolled in the Regiment of Artillery on 25.2.1995 for a contractual period of 17 years in color and 02 years in the reserve. After completing his Military Training, he was posted in 831 Light Regiment, w.e.f. 23.1.1996, where while serving, he died on 24.9.1996. The cause of death could not be ascertained except for UNKNOWN POISONING (E-866). The Court of Inquiry held to investigate the circumstances leading to the death as ::: Downloaded on - 11/03/2020 20:28:46 :::HCHP ...3...
"attributable to military service in peace". However, as per .
Certificate of Attributable All Ranks, the cause of death of the individual was not attributable to or aggravated by military service since no exceptional stress or strain of service was in evidence.
4. While in service, the said Vijay Kumar had nominated his mother, Smt. Savitri Devi, the petitioner herein, for family pension and DCRG. The 2nd respondent released the terminal benefits as per Rules. The grievance of the petitioner is that the 2nd respondent rejected the Special Family Pension to her because the income of the claimant was more than Rs.2550/-per month. The 2nd respondent duly communicated the said rejection of pension to Smt. Savitri Devi, advising her that she has a right to prefer an appeal against such a decision.
5. Instead of filing the appeal, the petitioner filed a Civil Suit for recovery of pension. The petitioner filed the said suit in Civil Courts, Una, H.P. Vide judgment dated 30.8.2007, passed in Civil Suit No.111/2001, the Court dismissed the same, because Section 4 of the Pension Act, 1871, bars the jurisdiction of the Court to entertain such Civil Suit. After that, the petitioner filed Civil Writ ::: Downloaded on - 11/03/2020 20:28:46 :::HCHP ...4...
Petition in this Court with a prayer for quashing Annexures P-4 and .
P-5, seeking mandamus to direct issuance of family pension to her.
6. In response to the said writ petition, the respondents took up the plea that the income of the claimant was more than Rs.2550/- per month, and as such, was not entitled to family pension as per the Rules.
7. Paragraph-7 of the reply is reproduced as under:-
"That it is pertinent to mention here that as per Government of India, Ministry of Defence letter No.13/38207/AG/PS4(b)/931/B/D(Pens/Serv) dated 26 Aug.1998, the income criteria in respect of parents and vidowed/divorced daughters will be that their earning is not more than Rs.2550/- per month. The parents will get ordinary family pension at 30% of basic pay of the deceased Armed Forces Personnel subject to a minimum of Rs.1275/- per month. Furthermore as per para 1 (iii) of Government of India, Ministry of Defence letter No.1(3)/99/D (Pensions/Services) dated 24 Nov. 1999 the income of both the parents will be taken into account when both are alive and for single parent when one of them is alive. But in the instant case, the income certificate issued by the Tehsildar Amb, District Una (Himachal Pradesh) based on the affidavit ::: Downloaded on - 11/03/2020 20:28:46 :::HCHP ...5...
furnished by the petitioner, income of her family is Rs.92000/- only per annum which exceeded the limit .
prescribed by the Government (i.e., not more than Rs.2550/- per month). Hence, she is not eligible for grant of family pension."
8. In the Civil Writ Petition, the petitioner has also annexed the record of the Civil Suit. The respondents also placed reliance upon the affidavit filed by Smt. Savitri Devi (Annexure R-6), in which she explicitly stated that the annual income of her husband Shri Gurmeet Singh is Rs.49,700/- and the income from the land is Rs.2500/- per annum. It is not even the case of the petitioner that the income of her husband is not more than Rs.2,550/- per month.
Instead, she claims that this condition itself is arbitrary and secondly that her income, which is nil, cannot be clubbed with the income of her husband. Even, learned Single Judge did not give a finding that her income was less than Rs.2550/- per month but commented upon the reasonableness of clubbing of her income with the income of her husband. Regarding the second condition, learned Single Judge has declared the said as ultra vires of the Constitution.
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9. Feeling aggrieved, the respondents have filed the .
Letters Patent Appeal under Clause 10 of the L.P. Act, seeking setting aside of the judgment passed by learned Single Judge.
10. We have heard Mr. Lokender Paul Thakur, learned Senior Panel Counsel for the appellant-Union of India and Mr. R.P. Singh and Mr. Surinder Saklani, learned Advocates, for the respondents-claimants.
records.
11.
r to We have also waded through the entire The issue, in this case, is whether Smt. Savitri Devi was entitled to a pension of her deceased son, because her monthly income when clubbed with her husband, was admittedly more than Rs.2550/- and secondly that whether the reasoning for quashing the notification itself is legally tenable or not.
12. The Defence Services Regulations have framed Pension Regulations for the Army Part-I (2008) vide Clause-66(iv), in which the definition of family, the words mentioned are not mother and father individually, but parents who are wholly dependent on the service personnel when he was alive. When the definition of the family is so clear, then it cannot be read in any other way. There is ::: Downloaded on - 11/03/2020 20:28:46 :::HCHP ...7...
no ambiguity in this definition. Consequently, both parents have to .
be clubbed as a unit. As such, while computing the eligibility for family pension, it was justifiable for the second and third respondents to club the income of the husband of Smt. Savitri Devi with her income.
13. Clause 70 of these Regulations mention that the parents who were wholly dependent upon the service personnel when he was alive would be entitled to pension provided that their earnings at that time were not more than Rs.2550/- per month from all sources including pay, pension or self-employment. Therefore, given the admission of the respondent that the annual income of her husband from pension and agriculture was Rs.52,200/ per annum and, after excluding the income of her son, still the monthly income would be more than Rs.2550/- per month, which comes to Rs.4,350/- per month. Even in this income, the income from land, which is mentioned as Rs.2500/- per annum, was subject to verification.
14. On the aspect of combining the income of the spouses for family pension, learned Single Judge held that the parents ::: Downloaded on - 11/03/2020 20:28:46 :::HCHP ...8...
constitute one class, and they could not have been divided for a .
family pension based on income criteria. Learned Single Judge further held that the objective of the pension is to help the parents who are wholly dependent on the sons/daughters serving in armed forces.
15. The findings of learned Single Judge that the parents constitute one class and could not be divided for a family pension based on income criteria and have been thus discriminated against is also not based upon a holistic approach. For illustration, if the wife is a millionaire and husband unemployed or visa-versa, would it be justifiable to say that such an employed spouse of a millionaire is needy? She would be entitled, provided she proves that her spouse does not support her despite resorting to legal remedies. Thus, without any study in that aspect or any statistics, it was erroneous for the Court to issue a mandamus, overruling what the respondents deliberated suitable for its employees.
16. Subject to the applicable legal stipulations, statutory rights, and conditions of the contract, in common parlance, the employment is a contract between the employer and the employee, ::: Downloaded on - 11/03/2020 20:28:46 :::HCHP ...9...
and it continues till the will of the employer to take work and the will .
of the employee to work.
17. Regarding the findings of the learned Single Judge that monthly income of Rs.2550/- per month is a meager amount and is less than the amount which the daily wager nowadays itself is contradictory. The order was passed in 2009 and learned Single Judge had compared the earning of 2009 with what was calculated by the authorities by that point in time. The respondents kept on amending the pension depending upon the rising inflation and other factors.
18. The question is whether this Court has any jurisdiction to declare such pension as arbitrary without even going beyond the objective, calculations, and other studies conducted by such Department.
19. A bare reading of the impugned judgment passed by Learned Single Judge reveals that it is not based upon any study, statistics, or data to hold that the amount of monthly pension of Rs.
2550/-, then, was below the earnings of a daily wager. Even otherwise, it shall be hazardous for the financial health of any ::: Downloaded on - 11/03/2020 20:28:46 :::HCHP ...10...
institution if the Court presumes that the figures and numbers the .
employer arrived at is irrational, arbitrary, illusionary, and would result in hardship to the family and cannot be a valid reason to strike down regulations, and thus the order is set aside. The effect of this judgment is that the said regulation No.2 is restored with retrospective effect as if it was always in force and never struck down by this Court.
In view of the aforesaid observations, both the appeals are allowed and the judgments passed by learned Single Judge in CWP No.2175/2007 titled as Smt. Savitri Devi vs. Union of India and others, on 21.4.2009, as well as in CWP No.1061/2007, titled as Sohan Singh vs. Union of India and others, on 7.5.2009, are set aside. Pending application(s), if any, also stand disposed of.
(Dharam Chand Chaudhary), Judge (Anoop Chitkara), Judge 11th March, 2020 (KS) ::: Downloaded on - 11/03/2020 20:28:46 :::HCHP