Smt. Sateshwari vs Union of India

R.L. Anand, J.—Smt. Sateshwari is the widow of Late Shri Harisharan and she has filed the present writ petition under Articles 226/227 on the Constitution of India. Rather it has been prayed by the petitioner that a writ of mandamus be issued in her favour directing the respondents to release the benefit of family pension to her with effect from 28.1.1990 on the basis of the scheme formulated by the Government of India.

The brief facts of the case can be summarised in the following manner. The husband of the petitioner joined the army service on 25.11.1940. He served up to 10.12.1941 when he was boarded out from the service on account of disability. The husband of the petitioner was given the benefit of disability pension up to 4.11.1951 and with effect from 5.11.1951 the benefit of disability pension to the husband of the petitioner was discontinued and there is no proof on record to show that after 4.11.1951 the benefit of disability pension was ever granted to the husband of the petitioner. It is also the common case of the parties that the husband of the petitioner died in the year 1990. The case of the petitioner is that by virtue of the instructions 51 of 80 she is entitled to the benefit of family pension because her husband was entitled to the benefit of service element on the date of the enforcement of the scheme. Therefore, he will be considered a pensioner for all intents and purposes and specially in view of the instructions 51 of 80 Annexure R-1.

On the contrary the stand of the respondents is that since the husband of the petitioner was not a pensioner on the date of the enforcement of the scheme, therefore, he is not entitled to the benefit of the scheme Annexure R-l.

I have heard Shri B.S. Sehgal, learned counsel appearing on behalf of the petitioner and Shri Kamal Sehgal, learned counsel appearing on behalf of the respondents and with their assistance have gone through the record of the case.

I have just stated above that the case set up by the petitioner is that she is entitled to the benefit of the family pension and also to the benefit of the scheme as formulated by the respondent-authorities vide Scheme 51 of 80.

Let us see first what is this scheme and whether the case of the petitioner is covered by the scheme or not.

Vide Annexure R-l, i.e. Scheme 51 of 80, it has been stipulated "In supersession of all existing orders on the subject, family pensionary benefits, as detailed in paragraph 2 and subsequent paras, will be admissible to the widows and children of all commissioned officers (including those holding, EC, SSRC or TC), JCOs (including those granted Honorary Commissions as ICOs while on the effective list) OR and NCSE, who were in service on 1.1.1964 or who joined/join service thereafter and who died/die, while in service or after retirement with a retiring, disability or invalid pension/special pension, on account of causes which are neither attributable to nor aggravated by service except the categories enumerated below". For my purpose the other paras of the document Annexure R-1 need not to be incorporated in this order.

The reading of the above would show that the benefit of this scheme is available to those persons who were in services as on 1.1.1964. Admittedly, the husband of the petitioner was not in service as on 1.1.1964 because he was invalidated from service on 10.12.1941. Also it is the common case of the parties that the husband of the petitioner after 1.1.1964 never served the army. Rather he died in the year 1990. It is also the conceded case of the learned counsel for the petitioner that the benefit of disability pension was discontinued to the husband of the petitioner with effect from 5.11.1951. Now the argument raised by Shri B.S. Sehgal, learned counsel for the petitioner, is that the disability pension consists of two elements i.e. service element and the disability pension. Though the husband of the petitioner actually did not avail the benefit of disability pension with effect from 5.11.1951 onwards yet he will be considered on the pension roll by virtue of the fact that he was entitled to the benefit of service element irrespective of the fact that this benefit was not granted to him or availed by him for some lapse or the other. The submission of the learned counsel for the petitioner cannot be accepted. The reason being is that the husband of the petitioner never got the benefit of service element after 4.11.1951. There was no challenge by the deceased Harisharan or by the petitioner to the effect that the discontinuation of the disability pension of her husband was illegal. When the husband of the petitioner was not a pensioner on the relevant date then he is not entitled to the benefit of the scheme nor the widow of the deceased is entitled to the benefit of the family pension as claimed by the learned counsel for the petitioner.

In this view of the matter, I do not see any merit in this petition and dismiss the same with ho order as to costs.

Petition dismissed.