Allahabad High Court
Km Basanti vs Union Of India Thru. Its Secy. Ministry ... on 23 December, 2022
Bench: Devendra Kumar Upadhyaya, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 2 Case :- WRIT - A No. - 8859 of 2022 Petitioner :- Km Basanti Respondent :- Union Of India Thru. Its Secy. Ministry Of Defence New Delhi And 3 Others Counsel for Petitioner :- Kranti Kumar Misra Counsel for Respondent :- A.S.G.I. Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Saurabh Lavania,J.
Heard Sri Kranti Kumar Misra, learned counsel for the petitioner and Sri Surya Bhan Pandey, learned Deputy Solicitor General of India assisted by Sri Mahendra Kumar Mishra, Advocate for the respondents.
By means of this writ petition, the petitioner has challenged the order dated 23.07.2021 passed in Original Application No. 414 of 2020 (Kumari Basanti vs. Union of India and 3 Others), wherein the following main relief was sought.:-
"To issue/pass an order or direction to the respondents to decide applicant's representation/application submitted to the Officer-in-Charge, Records The Kumaon Regt, vide letter No. Km Basanti/Spl Fam Pen dated 02.01.2020 to grant her dues of family pension/special family pension. But, reply on the above mentioned representation is still awaited is being annexed as Annexure No.A-1 to this Original Application."
It is stated that in the instant case of the petitioner, the Tribunal failed to exercise its jurisdiction in considering the Original Application for the main relief sought. It is in view of the fact that Special Family Pension was not provided for the period w.e.f. 01.09.1986 to 31.10.2007 though, as per Rules, the petitioner is entitled to the same. In this regard, reliance has been placed on the Pension Regulations for the Army, 1961 (Part-1) particularly Regulation No.230 (C). As such, the indulgence in the matter is required by this Court under Article 226 of the Constitution of India.
On the other side, Sri Surya Bhan Pandey stated that the petitioner earlier approached the Tribunal by means of Original Application No.524 of 2012 and Original Application No.168 of 2012. In the Original Application No. 524 of 2012 decided vide order dated 23.11.2017, one of the reliefs which sought was to the effect that the opposite parties be directed to pay the dues of Family Pension/Special Family Pension/Second Life Award w.e.f. 01.09.1986 to 31.10.2007 alongwith interest @ 18 per cent. In clarification, it is stated that Original Application No.168 of 2012 was decided earlier. He further stated that the Tribunal on the statement made by learned counsel for the petitioner dismissed the Original Application No. 524 of 2012 as having become infructuous. On this aspect of the case, he has drawn attention of this Court to the order dated 23.11.2017, which for ready reference is extracted hereinbelow:-
"Present: Shri V.K. Pandey, learned counsel for the applicant and Shri Namit Sharma, learned counsel for the respondents assisted by Maj Rajshri Nigam, Departmental Representative.
By means of the present O.A. filed by the applicant under Section 14 of the Armed Forces Tribunal Act, 2007, the following reliefs have been claimed:
(i) That this Hon'ble Tribunal may kindly be pleased to quash the impugned order dated 28.08.2012 passed by the opposite party no. 3 as contained in Annexure No. 1 to this Original Application.
(ii) That this Hon'ble Tribunal may kindly be pleased to direct the opposite parties specially opp. party no. 3 to pay and continue the aforesaid Special Family Pension since the date of impugned order to onwards in the interest of justice along with the other consequential benefits.
(ii)-A That this Hon'ble Court may kindly be pleased to direct the opposite parties to pay the same dues of Family Pension/ Special Family Pension/Second Life Award from 01.09.1986 to 31.10.2007, in the interest of justice with 18% interest.
(iii) That this Hon'ble Tribunal may kindly be pleased to pass any other order or direction which this Hon'ble Court may deem just and proper in the circumstances of the case.
(v) That this Hon'ble Tribunal may be pleased to award the cost of this Original Application Rs. 50,000/- (Rupees fifty thousand) in favour of an unmarried, handicapped and mentally retarded daughter of martyr soldier in the interest of justice.
In pursuance to order dated 13.11.2017 passed by this Tribunal Shri R.K. Tiwari, AAO, PCDA (Pension), Allahabad is present. Shri R.K. Tiwari has produced before us relevant record whereby it is evident that the entire dues have been paid to the applicant.
Learned counsel for the applicant submits that the applicant for the said period was entitled to Special Family Pension in pursuance to Regulations 213, 215, 216 and 220(ii) of the Pension Regulations for the Army, 1961 (Part-1). Learned counsel for the respondents has drawn our attention towards provisions of Regulation 230(C) of aforesaid Pension Regulations and submits that the case of the applicant is covered by Regulation 230 (C).
Learned counsel for the applicant fairly conceded that in view of Pension Regulations for the Army, 1961 (Part-1), the applicant has received whatever was due to her and the Original Application may be dismissed since it has served its purpose.
In view of the submission of learned counsel for the applicant, the Original Application is rendered infructuous and is hereby dismissed as such.
No order as to costs."
Further, it has been stated that in view of the aforesaid, the subsequent original application i.e. Original Application No. 414 of 2020, in which the order impugned herein has been passed, was not maintainable as on a conjoint reading of the relief sought in the original application and the representation it would appear that in the representation, the relief regarding family pension w.e.f. 01.09.1986 to 31.10.2007 has been sought, which was sought in Original Application No. 524 of 2012, which was dismissed as having become infructuous. Prayer is to dismiss the petition.
On being confronted as to the maintainability of second Original Application substantially for the same relief, after arguing at some length, learned counsel for the petitioner submits that he may be permitted to move an appropriate application, if permitted under the law, before the Tribunal in regard to the orders passed by the Tribunal in earlier Original Application No. 524 of 2012.
Considering the aforesaid, we are of the view that Original Application No. 414 of 2020 for the relief sought in view of earlier order dated 23.11.2017 was not maintainable, as such, the order of Tribunal dated 23.07.2021 impugned herein, is not liable to be interfered with by this Court. However, as no serious dispute has been raised in regard to moving appropriate application in Original Application No. 524 of 2012, liberty is granted to the petitioner as prayed for.
This writ petition is dismissed with the aforesaid liberty.
Order Date :- 23.12.2022 Vinay/-