Decided on February 20,2007

SUSHILA Appellant
UNION OF INDIA Respondents


T.S.THAKUR, J. - (1.) LATE sepoy Ramji Lal, husband of the petitioner was enrolled in the 11, Kumaon Regiment of the army and discharged on compassionate grounds after he rendered 10 years and 1 month of military service. From the date of his discharge in 1973 till the date of his demise in 2003, the deceased did not make any claim at any stage for payment of service or pro rata pension. Two years after his demise, the petitioner, widow of the deceased ex -serviceman has filed the present writ petition for a mandamus directing the respondents to grant what she describes as pro rata pension and special family pension in her favor. The petitioner's case is that since her husband deceased sepoy Ramji Lal had rendered over 10 years of service, he was entitled to receive service pension from the date of his discharge till the date of his demise and after his death, the petitioner is entitled to claim family pension.
(2.) IN response to a notice issued by this Court, the respondents have filed a counter affidavit in which it is inter alias stated that the petition is barred by unexplained delay and also that the deceased Sh. Ramji Lal was not eligible for grant of either service pension or pension on pro rata basis. The respondents have accordingly prayed for dismissal of this writ petition.
(3.) APPEARING for the petitioner Mr. R.S. Dhull strenuously argued that the petitioner was entitled to receive family pension and also the arrears of service pension due to her husband who was eligible to claim pension on account of his having rendered 10 years of service in the army. Elaborating that submission he contended that although Regulation 132 of the Pension Regulation for the Army 1961 stipulates a minimum period of 15 years of qualifying service for earning service pension, the said regulation stood amended on account of the recommendations made by the 4th Pay Commission. In support of that submission he draws our attention to a resolution dated 18.04.2007 issued by the Ministry of Personnel and Public Grievances and the annexure to the same inter alias stating that the recommendations made by the 4th Pay Commission relating to pension structures for pensioners had been accepted. He, in particular, relied upon the following part of the annexures to the said resolution in support of his submission that any one who had rendered 10 years service was qualified to receive pension: Pension (i) Existing system of paying lumpsum gratuity for service below 10 years and menthly, pension for qualifying service of 10 years and more may continue (5 -12) Accepted He urged that the notification issued by the government was in terms of Section 193 of the Army Act tantamount to a rule which must be deemed to have amended and altered regulation 132 of the Pension Regulations for the Army, consequently reducing the qualifying period of service for pension purposes from 15 years to 10 years.;

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