IN THE HIGH COURT OF PUNJAB & HARYANA AT

CHANDIGARH

CWP. No. 14427 of 1993

Date of Decision: 27.11.2009

Smt. Bachan Kaur --Petitioner

Versus

Union of India and others --Respondents

CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI.

Present:- Mr. K.S. Dadwal, Advocate for the petitioner.

Ms. Geeta Singhwal, C.G.S.C for respondents.

***

PERMOD KOHLI.J (ORAL)

Mota Singh, husband of the petitioner initially joined the Indian

Army and served from 17.7.1940 to 11.7.1947 under Army No. 38886. He

was discharged as Jamadar. On being discharged, he was again enrolled in

the Defence Security Corps (DSC) and was allotted Army No. 8809923 as

Sepoy. He served in the said corps w.e.f. 5.12.1951 to 6.2.1957. After

discharge from DSC he again joined General Reserved Engineering Force

(GREF) in 1572 Pioneer Company under Army No. G/84754 and served as

Supervisor NT Grade-II w.e.f. 18.11.1965 to 30.4.1973, wherefrom, he was

finally discharged. No pension was paid to him. Mota singh died on

23.8.1980. The petitioner applied for pensionary benefits of her deceased

husband vide her application dated 2.9.1990. She was asked to apply

through Sainik Welfare Board. The petitioner, accordingly applied through

the Sainik Welfare Board. The Record Officer, DSC, Records vide letter

dated 8.8.1990, though, informed the Deputy Director, Sainik Welfare

Board, Hoshiarpur that the documents in respect of the deceased Mota

Singh were destroyed after expiry of time for its preservation. However, the

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service particulars of the deceased w.e.f. 17.4.1940 to 11.7.1947 and from

5.12.1951 to 6.2.1957 were confirmed. The respondents did not release any

benefit to the petitioner. She was forced to serve a legal notice. In response

to the legal notice, respondent no.3 informed the counsel for the petitioner

that the deceased Mota Singh was discharged on 30.4.1973 after rendering 7

years 5 months and 12 days service only, which is less than the required

qualifying service of 20 years under Rule 48 of Pension Rules, 1972. The

claim of the petitioner was, thus, rejected vide letter dated 11.9.1993

(Annexure P-3). On being denied the pensionary benefits the petitioner

filed the present writ petition seeking a direction for pensionary benefits

relying upon Regulation 132 of the Pension Rules.

The respondents in their reply firstly disputed the status of the

deceased husband of the petitioner as an army personnel for the period the

deceased rendered service with the GREF and pleaded that the deceased

having less than the minimum qualifying service, no pension is payable. It

was also pleaded that service rendered by the deceased in Army and DSC

cannot be counted towards the qualifying service. The respondents also

took a stand that the service rendered in GREF is basically civil service, not

the part of army service.

This matter was heard by a learned Single Judge of this Court.

Learned Single Judge was of the opinion that the service in GREF is an

army service and the members thereof are considered as members of the

armed forces, made a reference to the larger bench in view of the difference

of opinion with another judgement of this Court vide his order dated

12.9.1996. The matter was, accordingly, heard by the Hon'ble Division

Bench of this Court. The Hon'ble Division Bench answered the reference

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holding that members of the GREF are members of the armed forces, the

relevant observations are as under:-

“ We, therefore, hold that members of the G.R.E.F are members

of the armed forces for the purposes of laying claim to pension and other

retiral benefits and should a dispute arise this court has the jurisdiction to

entertain and decide the same in exercise of its jurisdiction under Art. 226

of the Constitution. We are therefore of the opinion that Datta's case (supra)

has not been correctly decided and is accordingly over-ruled.”

The writ petition was accordingly remitted for decision on

merits.

In view of the dictum of the judgement of Hon'ble Division

Bench, the only question remains to be considered is whether the deceased

had the qualifying service to his credit for purposes of pensionary benefits.

It is admitted case of the parties that the deceased Mota Singh served the

Indian Army under 3 spells i.e. (i) w.e.f. 17.4.1940 to 11.7.1947 (ii) w.e.f.

5.12.1951 to 6.2.1957 and (iii) w.e.f. 18.11.1965 to 30.11.1973 (to be

checked). Thus, the total service rendered by the deceased was 19 years 7

months and 7 days.

The petitioner has relied upon Regulation 132 of the Pension

Regulations which reads as under:-

“MINIMUM QUALIFYING SERVICE FOR PENSION.

132. Unless otherwise as provided for, the minimum

qualifying colour service for earning a service pension is i.e. 15 years.”

In the reply, while admitting the Regulation 132, it is simply

stated that this regulation has no application to the case of the petitioner.

During the course of hearing the application of Regulation 132 for the

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purposes of grant of pension is not denied. The deceased has rendered more

than the qualifying service. The claim for pension has been wrongly and

illegaly withheld. The petitioner being the widow of the deceased Mota

singh is also admitted position.

This petition is, accordingly, allowed. Respondents are

directed to release the pensionary benefits of deceased Mota Singh taking

into consideration the entire service rendered by him including service in

GREF and calculate the pensionary benefits, payable to the deceased till the

time of his death and the family pension thereafter. The deceased died in

the year 1980, whereas this petition was filed in the year 1993. There has

been delay on the part of the petitioner, hence, the claim for arrears of the

pensionary benefits is restricted to three years preceding the filing of the

writ petition. The entire benefit be paid to the petitioner within three

months.

(PERMOD KOHLI)
JUDGE
27.11.2009
lucky

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