Manju Yadav vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 941 Del

JUDGMENT

Anil Dev Signh, J.

1. This Letter Patent Appeal is directed against the order of the learned Single Judge dated March 7, 20901 in Civil Writ Petition No. 894 of 2001. The facts giving rise to the writ petition are as under:-

2. The appellant was married to Shri Veerdev Yadav, who was serving as Deputy Commandant in the Border Security Force. On August 29, 1992 Shri Veerdev Yadav lost his life while fighting the naxalites in Karim Nagar District of Andhra Pradesh. At the time of his death, Shri Veerdev Yadav was survived by the appellant and three months old daughter Deepika. In accordance with O.M. NO. 35/5/89-P.& P.W.(K), dated April 9, 1990, the appellant Majnu was granted benefit of the liberalized pensionary award vide PPO No. 240559248189. On June 19, 1994, the appellant contracted second marriage as a result whereof the liberalized pensionary award was withdrawn and in place the of she was granted ordinary family pension. Unfortunately, the second marriage did not work and on February 21, 1997 the same was annulled by a decree of divorce. After that, from May 25, 1997 to August 28, 1997 the appellant made several representations to the respondents for restoration of the liberalized pension. On September 9, 1997, the request of the appellant was rejected by the respondents. Thereupon, the appellant filed a writ petition claiming the following reliefs:-

"In view of the submissions made above, it is, therefore, prayed that a Writ of Mandamus or any other writ or writs, order or orders, direction or directions may be issued to respondents no.1 to 3 to restore the Family Pension to the petitioner which was granted to her vide P.P.O. No. 240559248184 (Annexure__) with effect from 21/2/1997 when the marriage of the petitioner with her second husband was annulled, as well as with interest thereon,

And

It is further prayed that the respondents may also kind be directed to pay the interim Family Pension to the petitioner during the pendency of the present writ petition.

Any other relief which this Hon'ble court may deem fit and proper in the facts and circumstances of the case may also kindly be passed in favor of the petitioner."

3. The learned Single Judge was of the view that the action of the respondents in not restoring liberalized pension after annulment of the second marriage cannot be said to be illegal since there was no such provision for payment of the same. Accordingly, the learned Single Judge rejected the writ petition of the appellant.

4. We have heard the learned counsel for the parties at length. With the consent of the parties the letters patent appeal is being finally disposed of.

5. The learned counsel for the appellant submitted that under Rule 12 (2) of the Central Civil Services (Extraordinary Pension) Rules, a widow or mother of a deceased member of the force is entitled to family pension and in case a widow remarries, she ceases to be entitled to family pension, but when such remarriage is annulled by divorce, desertion or death of the second husband, her pension is liable to be restored upon proof that she is in necessitous circumstances and otherwise deserving. According to the learned counsel, the rule applies mutates mutants to Clause 4 of O.M. No. 33/5/89-P.&P.W.(K) dated April, 9, 1990 under which family pension equal to pay last drawn by the deceased Government servant is admissible to his widow. The learned counsel contends that the learned Single Judge was not right in rejecting the prayer of the appellant.

6. On the other hand, the learned counsel appearing for the respondents seriously disputed the contentions of the learned counsel for the appellant and submitted that the appellant was not entitled to receive pension under Clause 4 of the aforesaid O.M. once she remarried since the benefit there under is available to a widow until she remarries and not thereafter.

7. In order to appreciate the submissions of the learned counsel for the parties, we consider it appropriate to examine Rule 12(2) of the CCS (Extraordinary Pension) Rules and relevant clauses of the aforesaid O.M. dated April 9, 1990. These reads as follows:-

CCS (EXTRAORDINARY PENSION) RULES:

"Rule 12(2). A family pension will ordinarily be tenable:-

(i) in the case of widow or mother until death or re-marriage whichever occurs earlier.

(ii) In case of minor son or minor brother, until he attains the age of twenty one.

(iii) In the case of an unmarried daughter or minor sister, until marriage or until she attains the age of twenty four whichever occurs earlier.

(iv) In case of father, till life.

Note: The family pension of a widow will cease on re-marriage but when such remarriage is annulled by divorce, desertion or death of the second husband, her pension may be restored upon proof that she is in necessitous circumstances and otherwise deserving."

O.M. No. 33/5389-P.&P.W.(K) dated 9th April, 1990:

XX XX XX

"2. Applicability

(1) These orders apply to all Civilian Central Government servants, who are governed by the Central Civil Services (Extraordinary Pension) Rules.

(2) These orders also apply to Civilian Central Government servants, governed by the Workmen's Compensation Act, 1923, subject to certain adjustments being made as provided in Paragraph 9.

3. Scope

(1) These orders apply to Government servants killed or disabled-

(a) as a result of action in international wars;

(b) as a result of fighting in war-like operations or border skirmishes with any country.

(c) while fighting against armed hostile;

(d) during laying or clearance of mines including enemy mines as also mines sweeping operations between one month before the commencement and three months after the conclusion of the operations;

(e) as a result of attack by extremists, anti-social elements, etc., or during action against dacoits, smugglers, hostile, etc.

NOTE.--It has been decided that the Liberalized Pensionary Awards as modified shall be extended to causalities suffered by the civilian Central Government employees assisting the IPKL in Sri Lanka.

[G.I., Dept. of P.& P.W. O.M. No. 33/1/87-P. & P.W., dated the 30th December, 1987.]

(2) The benefits under these orders will be restricted only to those cases where the death/disability is directly caused by actual operations. The following illustrations are mentioned for guidance of sanctioning authorities to determine whether the benefits under the scheme are attracted or not. In cases or any doubt cases shall be referred to the Department of Pension and Pensioners' Welfare.

xx xx xx

4. Benefit to the family in the event of the death of the Government Servant.

(1) If the Government servant is survived by the widow she will be entitled to family pension equal to pay last drawn by the deceased Government servant. The said family pension shall be admissible to her for life or until her remarriage.

(2) In the event of re-marriage 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 re-marriage.

(3) If the Government servant is not survived by widow but is survive by child/children only, all children together shall be eligible for family pension at the following rates:-

*Basic Pay of Government servant on the date of death Monthly family pension

(i) Not exceeding Rs. 1,500 50% of basic pay.

(ii) Exceeding Rs. 1,500 but not exceeding Rs.3,000.

40% of basic pay 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

*Pre-1996 soales of pay.

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 CCS (Pension) Rules, 1972. The family pension shall be paid to the senior most eligible child at the time on the lines on which family pension is regulated under the CCS(Pension) Rules, 1972.

xx xx xx"

8. As per Clause 2 of the O.M. dated April 9, 1990, the orders applies to all Civilian Central Government servant, who are governed by the Central Civil Services (Extraordinary Pension) Rules, Civilian Central Government servants governed by the Workmen's Compensation Act, 1923, and the Government servants killed or disabled as a result of (a) action in international wars; (b) fighting in war-like operations or border skirmishes with any country; (c) while fighting against armed hostile; (d) during laying or clearance of mines including enemy mines as also mines sweeping operations between one month before the commencement and three months after the conclusion of the operations; (e) result of attack by extremists, anti-social elements, etc., or during action against dacoits, smugglers, hostile, etc; and (f) causalities suffered by the civilian Central Government employees assisting the IPKL in Sri Lanka. The benefit is restricted to only those cases where death or disability is directly caused by actual operations. It seems to us that the O.M. dated April 9, 1990 is part of the CCS (Extraordinary Pension) Rules. There is no dispute that the CCS (Extraordinary Pension) Rules apply to the widows or mothers of the deceased members of the Border Security Force. It is also not in dispute that the aforesaid O.M. dated April 9, 1990 applies to the widows of the members of the Border Security Force who laid down their lives in the contingencies referred to in Clauses 3(1)(a),(b),(c),(d) and (e). It is significant to note that the Liberalized Pension contemplated by the O.M. is nothing but a form of family pension. Clause 4 of the O.M. Clearly postulates that a surviving widow whose husband laid down his life in the circumstances mentioned in Clause 3 will be entitled to family pension equal to pay last drawn by the deceased Government servant. It also needs to be noted that the family pension is admissible to her for life or until her remarriage both under Clause 4 of the O.M. and Rule 12(2) of the CCS (Extraordinary Pension) Rules and the CCS (Pension) Rules, 1972, and only the scale of payment is different. Both the CCS (Pension) Rules, 1972, and the aforesaid O.M. use the expression "Family Pension". In case the same words or expression are used at two different places in a statute, they ordinarily signify the same meaning. In this regard we may refer to the following decisions of the Supreme Court wherein it was held that when the Legislature uses same word in different parts of the statute, there is a presumption that the word is used in the same sense:-

1. Bhogilal Chunnilal Pandya v. State of Bombay, ;

2. K.N. Guruswamay v. State of Mysore, ;

3. Raghubans Narain Singh v. Uttar Pradesh Government, ;

4. Mohd. Shafi v. VII Additional District and Sessions Judge, Allahabad, .

9. It also appears to us that the expression "family pension" is not of many applications. It is used only in one sense, pension which is due to the family on death of a government servant.

10. Note to Rule 12(2) of the CCS (Extraordinary Pension) Rules provides that family pension of a widow will cease on re-marriage but when such re-marriage is annulled by divorce, desertion or death of the second husband, her pension may be restored upon proof that she is in necessitous circumstances and otherwise deserving. This note is applicable to family pension. Not only Rule 12(2) deals with family pension but Clause 4 of the O.M., as already seen, also deals with family pension. Therefore, the note not only applies to Rule 12(2) of the CCS (Extraordinary Pension) Rules, but it will also apply to Clause 4 of the aforesaid O.M. dated April 9, 1990. The O.M. dated April 9, 1990 is to be considered as part and parcel of the Central civil Services (Extraordinary Pension) Rules. Therefore, there is no reason why note to Rule 12(2) of the CCS (Pension) Rules should not apply to Clause 4 of the O.M. dated April 9, 1990. The O.M. dated April 9, 1990 is a beneficial provision and must be interpreted in a manner which would sub-serve the purpose for which the same was issued. There may be a case where a widow, being very young and having to look after children form the deceased husband, due to compelling circumstances or pressure of her parents or relatives, gets remarried, but her spouse after few days dies. In such a situation it will be absolutely unfair, unjust and unreasonable if she loses the status of a widow of the member of the force who died in action. Surely an interpretation of Clause 4 of the O.M. which deprives her of the family pension equal to the pay last drawn by the first husband who dies fighting for the motherland, will rob her of the means to survive since she has to bring up the children born to her from him. In the instant case, the appellant got married second time but her marriage did not work out and the same was annulled within a short span of about three years. It is not the case of the respondents that the appellant is not in necessitous circumstances and is otherwise not deserving. It is also not the case of the respondents that the appellant received any amount from her second husband as a settlement for annulling the marriage. In case the appellant is recognized as the widow of Veerdev Yadav for the purposes of Rule 12 (2) of the CCS (Pension) Rules, there is no reason why she should to considered to have shed her status in his widow for the purposes of Clause 4 of the O.M. dated April 9, 1990. Incongruity while interpreting Rule 12(2) of the CCS (Pension) Rules and Clause 4 of the O.M. must be avoided. In this view we are also supported by Clause 10 of the O.M. dated April 9, 1990 which reads as under:-

"10. Procedure for Grant of Awards and Residuary Provisions

(1) The procedure prescribed for grant of award under the CCS (EOP) Rules will continue to be followed for grant of award under these orders.

(2) Except where expressly provided otherwise in these orders, the other conditions prescribed for grant of awards under the CCS (EOP) Rules will continue to be applicable."

11. It is obvious from a reading of the aforesaid clause that the procedure and the conditions prescribed for grant of awards under the CCS(Extraordinary Pension) Rules are to be followed for grant of award under the O.M.dated April 9, 1990. Therefore, note to Rule 12(2) of the CCS (Extraordinary Pension) Rules which lays down the procedure for restoration of family pension will be deemed to be a note to Clause 43 of the O.M. dated April 9, 1990. In this view of the matter, the learned Single Judge was not right in declining to issue a direction to the respondents to restore the family pension of the appellant under Clause 4 of the O.M. dated April 9, 1990. Accordingly, we set aside the order of the learned Single Judge and direct the respondents to restore the family pension to the appellant under Clause 4 of the O.M. No. 33/5/89-P.&P.W.(K) dated April 9, 1990. The appeal is disposed of.