- (1.) SMT. Sajjan Kanwar wife of late Jamadar Banne Singh, the petitioner herein in the present writ petition filed by her, seeks a writ in the nature of certitorari so as to quash order dated 13.9.2002 (Annex.5) and in consequence of setting aside the said order to grant to her mustering out/family pension as applicable with all consequential benefits including interest on the arrears @ 18% for depriving her legitimate dues for long years for no fault of her.
(2.) THE facts on which the relief as mentioned above is sought to rest reveal that the late husband of the petitioner was initially enrolled in the Indian Army on 13.3.1931 and was discharged from service after putting 7 years, 9 months and 27 days of service. Husband of the petitioner was was re-enrolled in the Army in 27th Bn. of the Rajputana Rif. on 27.9.1939 and was granted viceroy commission on 1.10.1942. He was discharged of his second engagement on 21.2.1946 after serving the Army for 6 years, 4 months and 25 days. It is significant to mention that for a second spell he was enrolled at the time of Second World War. He, however, died on 30.3.1968. During his life-time he prayed for pension/muster-roll pension which was declined on 13.12.1945 and representation against the order dated 13.12.1945 was dismissed on 12.3.1947 (Annex.R/2), the petitioner, as it appears, before approaching this court for the desired relief, issued a notice for demand of justice on 16.11.2002 (Annex.R/4) which was rejected vide impugned order dated 3.12.2002 (Annex.R/5). Pursuant to notice that was issued by this court, the respondents have entered defence and opposed the cause of the petitioner. It has inter-alia been pleaded that as per service record held with the respondent No. 3, he was initially enrolled as Rifleman in the Army (Rajputana Rifles) on 13.3.1931 with Army No. 12730 and was discharged from service on 9.1.1939 at his own request as found recorded in his service documents. He had rendered 7 years, 9 months and 27 days for the first spell of service. Admittedly, he was re-enrolled in Rajputana Riles on 27.9.1939 as Jamadar with Army No. IO 25651 and was released on 22.2.1946 on demobilization/reduction. He had rendered 6 years, 4 months and 25 days service. Admittedly, the total service works out to 14 years, 2 months and 22 days. He was paid service gratuity Rs. 654/- for six months only as recorded in his service documents. The case of husband of the petitioner was processed during 1945 by the appropriate authority but was rejected by GHQ (I) on the ground that individual was reemployed on the same footing as other war time engagement soldiers (viz.-for the duration of war and 12 months thereafter and did not complete the conditions of service as a Viceroy Commissioned Officer. His case was treated as closed as is clear from the letters dated 13.12.1945 and 12.3.1947 (Annex.R/1 and Annex.R/2 respectively). He did not stake his claim from any type of pension/relief, thereafter till he died on 30.3.1968 and for the first time a legal notice was served on 16.11.2002. Same was duly replied vide letter dated 3.12.2002. During the course of arguments the learned counsel appearing for Union of India has raised two fold contentions to defend the cause of the petitioner. It is stated that the claim of the petitioner is stale and the petition is time barred having been filed after number of years even from the date of death of the husband of the petitioner. It deserves to be dismissed on laches. It is then contended that the husband of the petitioner had not put in 10 years of service which was essential for him to get his muster-roll pension. I have heard learned counsel for the parties and with their assistance examined the records of the case. The entitlement of individual for mustering out pension and gratuity is governed by Regulation 316 of the Pension Regulations for the Armed Forces in India, 1940 (Hereinafter to be referred in short as `the Regulations of 1940'), which is quoted as under: "316. Viseroy's Commissioned Officer and other Ranks of the Indian Army and similar rank holding combatant status in ancillary services, including Reservist. The Governor General may, at his discretion, sanction the grant of mustering out the pension and gratuity to the individuals of above categories in the following circumstances:- (a) Discharge on account of disbandment of a unit and consequent elimination of its reserve. (b) Discharge on account of reduction of establishment. (c) Discharge on becoming unsuitable for retention owing to change of class composition, provided that the individual cannot be absorbed in another unit. (d) In any other circumstances approved by the Governor General." It is not disputed during the course of arguments that the petitioner was disengaged of his second tenure on account of reduction in the Armed Forces. It is thus an admitted position that the case of the petitioner is covered under clause (a) of Regulation 316 of the Regulations of 1940. In so far as the plea raised by the learned counsel appearing for the Union of India that the husband of the petitioner had not rendered 10 years of service is concerned, the same is factually incorrect. The combined two periods if counted, the husband of the petitioner had served Armed Services for more than 14 years. Even if, it is to be assumed that the petitioner after he was first engaged voluntarily left service, the second period the husband of the petitioner had served in Army was more than 6 years. It is an admitted position as would be clear from the pleadings made in paragraph 7 and corresponding para of the written statement that the service of an Armed Personnel if rendered during World War- II, shall have to be counted double for the purpose of pensionary benefits. This pleading has been made in paragraph 7, on the basis of Government of India, Ministry of Defence's letter dated 30.4.1951. If the first period of engagement of the husband of the petitioner is excluded even then he is deemed to have rendered double of service of his second engagement which comes out to more than 10 years.
(3.) INDEED there is considerable delay in filing the present writ petition. The cause as such in the present case with regard to the pension is however a recurring one. The petition thus cannot be dismissed only on the ground of delay and laches. the court was, however, inclined to limit the relief to the petitioner for three years immediately preceding filing of the present writ petition but the learned counsel for the petitioner has brought to my notice the judgment of the Hon'ble Supreme Court in S.K. Mastan Bee vs. General Manager, South Central Railway & Another (1), where in the matter of pension laches did not come in the way of the petitioner in getting the full and complete relief. The learned counsel appearing for the respondents Union of India has half-heartedly urged that the language employed in Regulation 316 of the Regulations of 1940 is such that it is always in the discretion of the concerned authority to grant mustering out pension and gratuity or not. The husband of the petitioner had thus no right which may be indefeasible in any circumstances whatsoever. This contention of the learned counsel for the Union of India has to be rejected as the Regulation cannot be interpreted in such a way that in two identical cases the competent authority may grant mustering out pension to one and deny to the other. If, therefore, rule is tested on the anvil of Article 14 of the Constitution of India, the same shall perhaps have to be struck down. In the circumstances, the aforesaid rule has to be read down and made applicable to all who may answer the pre-requisites for entitlement to mustering out or family pension. In view of the discussion made the writ petition is allowed. The letters dated 13.12.1945 and 12.3.1947 (Annex.R/1 and R/2) are set-aside and the directions are issued to the Government to calculate the mustering out pension to the petitioner from the date of disengagement in the Army. The same be calculated and made over to the helpless widow, the petitioner herein who may be on the verge of her life tenure. A further direction is issued to the respondents to find out the entitlement of the petitioner with regard to family pension after death of her husband and if she be entitled to the same to make over it to her as expeditiously as possible. The directions issued by this court must be complied within a period of two months from today. This Court does not find it to be a case where the petitioner may also be entitled to interest or costs. ;