Smt. Ganga Devi vs Union Of India & Anr.
2010 Latest Caselaw 3454 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+            W.P.(C) No.7716/2009

                                          Date of Decision: 23rd July, 2010

       SMT. GANGA DEVI                             ..... Petitioner
                     Through:       Mr.Shailesh Kumar, Adv.

                    versus


       UNION OF INDIA & ANR.                      ..... Respondents

                       Through      Mr.Ankur Chibber, Adv.

          CORAM:
          HON'BLE MS. JUSTICE GITA MITTAL
          HON'BLE MR. JUSTICE S.L.BHAYANA

          1. Whether reporters of local papers may be allowed to
              see the Judgment?                                          Yes
          2. To be referred to the Reporter or not?                      Yes
          3. Whether the judgment should be reported in the              Yes
             Digest?

     GITA MITTAL, J (Oral)

     R.P. No.291/2009

1. By this petition, the petitioner has prayed for review of our order dated

24.3.2009 rejecting the writ petition of the petitioner for grant of special

pension in respect of services of her late husband Shri Pratap Singh who had

been discharged on 09.02.1954 from service of the Indian Army on the ground

that he had been found surplus.

2. It has been pointed by learned counsel for the petitioner that the case of

the petitioner was covered under regulation 167 of the Pension Regulations

for the Army which had stipulated that the scale of special pension or gratuity

which would be admissible to a person who has performed 10 years of service

or more but which is less than 15 years. Our attention is also drawn to

regulation 164 which stipulates that special pension would be admissible at

the discretion of the President to such persons who are discharged pursuant to

Government policy of reducing the strength on the establishment of the armed

force.

3. Late Naik Pratap Singh joined the Indian Army on 13th October, 1940 and

served there till 9th February, 1954, when he was discharged after he had

served for more than ten years. In view of the length of service of Naik Pratap

Singh and reasons for his discharge, it is evident that the said Regulations 164

and 167 applied to the case of the petitioner's husband and hence her. These

Regulations were not brought to our notice at the time of passing of

consideration of the writ petition. The order dated 24th March, 2009 as such

suffers from an error apparent on the face of the record and, therefore,

requires to be recalled.

4. Accordingly, this review petition is allowed. The order dated 24th March,

2009 is hereby recalled.

W.P.(C) No.7716/2009

5. Issue notice to show cause why rule nisi be not issued. Mr.Ankur

Chibber, Advocate accepts notice on behalf of the respondents. It is

contended by learned counsel for the respondents that so far as the record

relating to Naik Pratap Singh, the petitioner is concerned, it stands weeded out

as per the prescribed procedure and is not available. He has sought liberty,

which we have granted, to make submissions on the basis of such extract of

record as has been placed by the petitioner on record of the present case.

6. Rule D.B.

7. The writ petition relates to a claim for special pension by a soldier who

was discharged in 1954 by his widow stated to be over 85 years of age who

seeks award of family pension. Having regard to the narrow nature of the

controversy and having regard to the record position noticed in para 5 above,

we have taken up the writ petition for final hearing. Counsel for the parties

have been heard.

8. The petitioner's husband, late Shri Pratap Singh, was enrolled with the

Army Medical Corps at No. 91127 AO/NK on 13th October, 1940 and was in

service as a Naik till his discharge on 9 th February, 1954. The petitioner has

placed before us copy of a communication dated 4th May, 1960 sent by the

Record Office of the Army Medical Corps informing Naik Pratap Singh that he

had been discharged to eliminate the surpluses over and above the authorised

establishment. He was further informed that the service gratuity had been

paid to him and that he was not entitled to pension.

9. Learned counsel for the parties have drawn our attention to regulations

164 and 167 of the Pension Regulations For The Army, 1961 which govern

grant of special pension and gratuity. The relevant portion of these provisions

deserve to be considered in extenso and are usefully extracted as under :-

"164. Special pension or gratuity may be granted at the discretion of the President to individuals who are not transferred to the reserve and are discharged in large numbers in pursuance of Govt's policy;

(i) of reducing the strength of establishment of the Armed Forces:

Or

(ii) of re-organisation, which results in disbandment of any unit/formation."

"167. The scale of special pension or gratuity is:

        Length of actual qualifying service       Scale of
         rendered (without weightage              special pension/
                                                  gratuity

        (a)   Special pension

        (i)   xxxxxxxxxx

(ii) 10 years or more but Equal to the service pension less than 15 years as determined as per Regulation 136"

10. It is evident from the above that a person who has performed ten years

or more of qualifying service but which is less than 15 years, is entitled to

service pension determined as per Regulation 136. Regulation 164 mandates

grant of special pension to such an individual who has been discharged

pursuant to the Government policy of reducing the strength on establishment

of the Armed Forces.

11. In view of the letter dated 4th May, 1960 noticed heretofore, it is evident

that Naik Pratap Singh was discharged so as to eliminate the surpluses over

and above the authorised establishment. He was, therefore, squarely covered

under regulation 164 of the said Pension Regulations and was entitled to

award of special pension. So far as the basis or scale on which such special

pension is to be awarded, in terms of Regulation 167 (a)(ii), such pension has

to be calculated in terms of Regulation 136.

12. We may notice that representations of Naik Pratap Singh for special

pension evoked no positive response. The respondents rejected his requests

and he unfortunately expired on 2nd July, 1997 without getting any benefit of

special pension during his lifetime.

13. The documents placed on record manifest that Naik Pratap Singh had

service of over 13 years at the time of his discharge. It is an admitted position

that the respondents denied pensionary benefits to Naik Pratap Singh and

thereafter family pension to the petitioner on the ground that he had not

completed 15 years of pensionable service on the date of his discharge.

14. The present petition has been filed by the petitioner who is stated to be

his widow residing in Village Lejala, P.O. Peepli, District Pithoragarh with no

resources at her command, praying for award of pension on account of her

husband's service.

In the light of the Regulations noted above, it cannot be denied that Naik

Pratap Singh was entitled to special pension which was wrongly denied to him.

As a result, the petitioner deserves to be granted the relief which has been

prayed for in the writ petition.

15. Learned counsel for the respondents has contended that the petitioner

has approached this court only in the year 2009 and, therefore, the relief

which is to be granted deserves to be restricted to a period of three years prior

to filing of the writ petition. We have noted hereinabove that the petitioner is

a widow of a jawan who expired in 1997. That she is illiterate is evidenced by

the writ petition and affidavit which bear her thumb impressions for such

reason. She has stated in the writ petition that she was 85 years of age at the

time of filing of the writ petition.

16. The record manifests the continued wrongful denial of the special

pension by the respondents to late Naik Pratap Singh on the ground that he

had not completed 15 years of qualifying service. Such stand was completely

misconceived having regard to the provisions of regulations 164 and 167 of

the aforenoticed regulations. The communications placed on record reflect

that late NK Pratap Singh represented to the respondents continuously for

pension before his death. The respondents took the above stand and

wrongfully denied the same to him. Some of the rejection letters placed on

record are dated 4th May, 1960, 19th January, 1988 and 6th March, 1988.

17. Our attention is drawn by learned counsel for the petitioner to the

communication sent by the respondents on the 24th August, 2003 reiterating

their erroneous stand that the petitioner's husband had not completed the

requisite pensionable service, disentitling her to grant of family pension. By

this communication, the respondents have rejected a representation dated 1st

of August, 2003 sent by the petitioner. The same stand has been reiterated by

the respondents in a communication dated 2nd December, 2003. As per the

aforenoticed Regulations, the petitioner's husband was entitled to such

pension and consequently on his demise, the petitioner became entitled to

award of family pension.

18. It needs no elaboration that access to justice in this country is interfaced

with many barriers which include, and are not restricted to, illiteracy,

ignorance of law, poverty and social barriers. The petitioner unfortunately was

handicapped by all the above. An 85 year widow who is stated to be a

resident of a remote Village in District Pithoragarh (in the then Uttar Pradesh)

has been compelled to travel many hundreds of miles to this court and take

the giant step of invoking the writ jurisdiction of this court. This by itself

manifests the many handicaps and difficulties faced by her. The respondents

have not placed anything to the contrary before us.

19. Payment of pension is the duty of the respondents. They are expected

to know the applicable law, rules and regulations and also to correctly apply

the same. The respondents have miserably failed to do so in the instant case.

The respondents by the wrongful denial of the petitioner's claim have created

the situation compelling her to seek relief and redressal from this court. The

respondents having denied and deprived the petitioner of the pension are, in

fact, responsible for the delay which has enured in her coming to the court as

she was not possessed of the means to file the case before the court.

Therefore, the respondents cannot be permitted to take advantage of their

own wrong and successfully urge disentitlement to relief for the delay which

has occurred for reasons created by and, in any event, circumstances to

which the respondents have contributed.

20. The law prescripts no limitation for filing a writ petition. The court is

required to consider the matter from the viewpoint of unexplained and gross

delay and laches. Penury is more than sufficient explanation for delay in

initiating legal redressal. Having regard to the aforenoticed facts and

circumstances, we hold that the petitioner has adequately explained the

circumstances for the delay which has been occasioned in filing this petition.

21. In this background, In our view, interests of justice require that the

petitioner is granted family pension at least for a period of three years

preceding the issuance of the letter dated 24th August, 2003 which would be

from 24th August, 2000 effectively.

22. In view of the above, we direct as follows:-

(i) The respondents shall compute the special pension which was admissible

to Naik Pratap Singh and the pension which the petitioner would be

consequently entitled to with effect from 24th August, 2000. Such

computation shall positively be effected within a period of six weeks from

today. It shall be open to the respondents to consider the record filed by the

petitioner in these proceedings to compute the amount of special pension.

Such computation shall be served on the petitioner.

(ii) The order which is passed by the respondents shall be communicated to

the petitioner as well as learned counsel who has filed the present writ petition

immediately thereafter.

(iii) The amount towards arrears of the pension which is payable to the

petitioner in terms of the above with effect from 24th August, 2000 shall be

paid to the petitioner within a further period of four weeks thereafter.

(iv) The petitioner shall be entitled to costs of the present petition which are

assessed at rupees fifteen thousand only. The costs shall be paid within a

period of six weeks from now.

(v) The month by month future disbursement of pension shall be effected on

or before the 7th day of each calender month.

(vi) The respondents shall facilitate the disbursement of the amount to the

petitioner and may take the assistance of responsible persons in her village to

ensure prompt and regular payments to her. It shall be ensured that the

amount reaches the petitioner promptly.

(vii) The respondents shall report compliance of these directions and place

proof of the receipt of the amounts by the petitioner on the record within a

period of six weeks. The Registry shall list this matter for reporting compliance

immediately after expiry of six weeks from today.

(viii) The registry shall send a copy of this order by registered post to the

petitioner as well.

This writ petition is allowed in the above terms.

Dasti.

GITA MITTAL, J

S.L.BHAYANA, J JULY 23, 2010 vg/rds