Punjab-Haryana High Court
Rajwant Kaur vs Union Of India And Others on 8 August, 2012
Author: Rajiv Narain Raina
Bench: Hemant Gupta, Rajiv Narain Raina
CWP No.13297 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION : 8.8.2012
Rajwant Kaur
...Petitioner
Versus
Union of India and others
...Respondents
CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA
HON'BLE MR.JUSTICE RAJIV NARAIN RAINA
PRESENT: Mr.Arun Gosain, Advocate for the petitioner
....
Notes: 1.Whether to be referred to the reporters or not? Yes
2.Whether the judgment should be reported in the Digest? Yes
....
RAJIV NARAIN RAINA, J.
The petitioner is the widow of late Didar Singh who served the Territorial Army from 16.3.1993. He died in a road accident on 6.11.2010 during the period of disembodiment. The widow's claim for ordinary family pension was rejected with the remarks "individual died during disembodied period, hence ordinary family pension is not admissible in this case". These remarks are contained in the impugned letter dated 28.4.2011/26.5.2011. The impugned rejection letter has not been placed on record, though reference of it has been made in the reply dated 3.10.2011 (Annexure P-4) to the legal notice dated 15.9.2011 issued by the petitioner.
In the face of rejection of the case for Ordinary Family Pension, the petitioner has filed the present petition challenging Regulation 62, sub regulation
(ii) to Section-2 to the Pension Regulations for the Army, Part-1 (2008) which reads as under:-
CWP No.13297 of 2012 2
"Section 2: Ordinary Family Pension
62. These Regulation shall not apply to the following:-
(i) XXX XXX XXX XXX
(ii) Members of the Territorial Army other than those who die while rendering "Embodied Service" or after retirement with pension under these Regulations.
(ii) XXX XXX XXX XXX"
Regulation 62 deals specifically with members of the Territorial Army. It would, therefore, apply to the case in hand. The rule making authority has in clear and unambiguous terms excluded such members of the Territorial Army who die while rendering "Embodied Service". In the present case, it is not disputed that when the husband of the petitioner died in a road accident, he was not performing "Embodied Service". Members of the Territorial Army are governed by the Territorial Army Act, 1948. In the very nature of Territorial Army Service, a member of such service is not required to perform army duties throughout the year or career. Members of the Territorial Army are permitted to pursue avocations and occupations as fall to their fate. While doing so, they lead a civil life. However, they are called upon from time to time to perform Embodied Service in the exigencies of call of army duty. It is true that they would have the protection of Regulation 62 and in case of death during Embodied Service, there can be no dispute that the widow would be entitled to Ordinary Family Pension.
Learned counsel for the petitioner urges us to equate "Disembodied Service"
with either "Embodied Service" or "Army Service of a regular kind". It is not possible for us to accept such an interpretation or to hold that "Embodied Service" "Disembodied Service" and "Regular Army Service" fall in the same classification or belong to an identical or homogeneous group. If the pension granting authority in its wisdom has made policy in which cases to grant or not to grant family pension, it is not for the writ court to substitute its wisdom and declare that Disembodied Service would also be good enough for Ordinary Family Pension in the event of death of a member of the Territorial Army. It may CWP No.13297 of 2012 3 be that technically the "employee" and "employer" relationship has not come to an end during "Disembodied Service", but the fact remains that the husband of the petitioner was not on active duty when he died and it is only active duty which would create a right of the kind pressed in this petition. Embodied and Disembodied services are dissimilar. It is also the mandate of Article 14 of the Constitution that un-equals cannot be treated equally. Between the two kinds of service there is reasonable classification and the classification is based on intelligible differentia which has nexus with the object sought to be achieved. In view of the above classification and distinction between the two kinds of service the challenge to the vires of Regulation 62, Sub Regulation (ii) of Section 2 to Pension Regulations for the Army, Part-1 (2008) is repelled as satisfying the test of Article 14 of the Constitution. In an analogous situation, the Supreme Court while dealing with Paragraph 179, Para I, of the Pension Regulations of the Army, 1961, in a case of injury resulting in disability in an accident involving a military personnel on annual leave has rejected the claim of disability pension in Union of India and another vs. Talwinder Singh, 2012(3) S.C.T. 167, by holding that:-
"A person claiming disability pension must be able to show a reasonable nexus between the act, omission or commission resulting in an injury to the person and the normal expected standard of duties and way of life expected from such person. As the military personnel sustained disability when he was on an annual leave that too at his home town in a road accident, it could not be held that the injuries could be attributable to or aggravated by military service. Such a person would not be entitled to disability pension."
Consequently, the writ petition is dismissed. No costs.
(RAJIV NARAIN RAINA) (HEMANT GUPTA)
JUDGE JUDGE
8.8.2012
MFK
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