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ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI

O.A.No.45 of 2013

Tuesday, the 8th day of July 2014

THE HONOURABLE JUSTICE V. PERIYA KARUPPIAH

(MEMBER - JUDICIAL) AND

THE HONOURABLE LT GEN K. SURENDRA NATH (MEMBER – ADMINISTRATIVE)

R. Reddamma Mother of Late 14252196

Nk E. Bhaskar Naidu

Door No.1-354, Giri Rao Street Madanapalli (P.O), Chittoor District

Andhra Pradesh-517325. … Applicant

By Legal Practitioner: Mr. M.Selvaraj

Vs.

1. Union of India, Rep. by Ministry of Defence

New Delhi.

2. The Chief of Army Staff Rep. by Integrated HQ of Ministry

of Defence Army, New Delhi.

3. The Officer in Charge Records

The Records Signals Pin 908770, C/o 56 APO.

4. Principal Controller of Defence

Accounts (P), PCDA(P), Allahabad (UP).

5. Mrs. Revathy, w/o Raveendra Naiduu D.No.3-193-A, Mazeed Veedhi

Annamayya Nagar, Near Sathyanarayanapuram Circle

Thirupathi, Chittoor District Andhra Pradesh. … Respondents

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Mr. B. Shanthakumar, SPC assisted by Maj Suchithra

Chellappan, JAG Officer For Respondents-1 to 4

M/s. Edwin Jesudoss

& M. Rajasekaran For Respondent-5.

ORDER

(Order of the Tribunal made by

Hon’ble Justice V. Periya Karuppiah, Member-Judicial)

1. This application is filed by the applicant for calling for the records

pertaining to the Order No.P/14252196/FP-5/NER, dated 29.06.2012

passed by the 3rd respondent to partition family pension and to pay all

arrears from 12.12.2001, i.e., the date of death of the son of the

applicant; the regular family pension and also to pass further justifiable

orders.

2. The brief facts as stated in the application filed by the applicant

would be as follows:

The applicant is the mother of Late Naik E. Bhaskar Naidu. Her

son was enrolled in the army on 21.09.1983 and was discharged on

01.09.2000 after the completion of his terms of engagement. The

applicant’s son was granted with service pension and he was receiving

the same till his death. As per the Army Rules and Pension Regulations,

after the death of a pensioner, family pension is admissible to his heirs.

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The son of the applicant married the 5th respondent and they had no

issues out of the wedlock. The applicant being a Hindu, comes under

Class-I legal heir along with 5th respondent. The 5th respondent being

the widow of applicant’s son Naik E. Bhaskar Naidu, was receiving family

pension payable on the death of the applicant’s son. However, the 5th

respondent remarried on 27.09.2009 and she is living with her new

husband and therefore, the status of widow would not be available as

per the Law of Succession applicable to Hindus. After remarriage of the

5th respondent, the applicant made a representation on 7.6.2012 to the

3rd respondent claiming family pension and a reply was given to the

applicant on 29.06.2012 rejecting her claim. The applicant is now

questioning the said impugned order. The applicant had also issued a

legal notice to the 5th respondent to which the 5th respondent replied on

8.10.2012 allegedly, by making false and frivolous statements. The

applicant is left with no option other than to approach this Tribunal, in

challenging the executive order passed by the 3rd respondent dated

29.06.2012 and for further direction of payment of pension to her.

Therefore, the application filed by the applicant may be allowed.

3. Respondents 1 to 4 in their reply-statement averred that Late Naik

E.Bhaskar Naidu was enrolled in the army on 21.09.1983 and was

discharged from service with effect 1.9.2000 under the Army Rule 13

(3) (III) (iv) at his own request on compassionate grounds before

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fulfilling his terms and conditions of service. He rendered 16 years and

346 days of colour service in the army and on that basis, he was

receiving family pension. He died on 12.12.2001, due to respiratory

failure caused by burns at Command Hospital (Air Force), Bangalore. As

per the records, he was married to Kumari Revathi on 9.8.1992 and

nominated her as next of kin, to receive family pension etc.

Accordingly, on the death of Naik E.Bhaskar Naidu, ordinary family

pension was granted in favour of his widow Smt. Revathi. The

representation of the applicant, i.e., mother of Late E. Bhaskar Naidu,

made in January 2002 was suitably replied to, by letter dated 5.3.2002.

Another representation dated 1.7.2002 was received from the applicant

and it was also replied through a letter dated 20.8.2002. The applicant

issued a notice on 11.05.2010 through her counsel and it was also

replied suitably with an advice to forward the records relating to

remarriage of the 5th respondent, i.e., the widow of the deceased soldier

and other particulars regarding the children born out of wedlock with

the deceased soldier. Accordingly, requisite documents were received

from Zilla Sainik Welfare Office, Chittoor vide their letter dated

7.6.2012. According to the said report, the 5th respondent is a childless

widow of the deceased soldier and was remarried to Sri Ravindra Naidu

on 27.11.2009. As per PCDA (P), Allahabad Circular No.479, dated

17.2.2012, a childless widow of a deceased armed forces personnel shall

continue to receive family pension even after her remarriage subject to

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the condition that family pension shall cease once her independent

income from all other sources becomes equal to or higher than the

minimum prescribed family pension in the Central Government. As per

the said rules, the 5th respondent is entitled to receive all pensionary

benefits of her husband Late Nk E. Bhaskar Naidu. Accordingly, the

impugned order was passed in terms of the said Circular and the

application is devoid of merits and therefore it is liable to be dismissed.

4. The 5th respondent in her reply-statement (counter affidavit) stated

that she was married to Nk E. Bhaskar Naidu on 9.8.1992 at

Madanapalli, Andhra Pradesh and continued to live with him till his

death on 12.12.2001 and she had no children borne out of the said

wedlock. Her Late husband, E. Bhaskar Naidu during his lifetime had

made sufficient arrangements for his mother. The applicant herein is

financially independent as she is having a three-storied building

comprising of nine portions, viz., ground floor, first floor and second

floor in Door No.1-354 and 354-A, Giri Rao Street, Madanapalle Post,

Chittoor District, Andhra Pradesh. The said property is valued over

Rs.50 lacs and it fetches a rent of over Rs.20,000/- per month. In

addition, an agricultural land in Survey No.532/4 of an extent of 5 acres

and 8 cents situated at Mattivaripalle village of Gurapalakotta Mandal,

Andhra Pradesh stands in the name of applicant which also fetches a

huge revenue to the applicant. Apart from that, the husband of the 5th

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respondent had made arrangements of huge amounts in bank deposits

in the name of his mother, the applicant and provided capital for a

thriving money lending business conducted by the applicant.

5. On the above pleadings, the following points emerged for

consideration in this application:

(1) Whether the re-marriage of the 5th respondent which

took place on 27.09.2009 would disentitle the 5th respondent from

claiming the family pension payable on the death of her husband

Nk E.Bhaskar Naidu?

(2) Whether the applicant is entitled for regular ordinary

family pension on the death of her son E.Bhaskar Naidu and the

arrears payable from 12.12.2001, (i.e) the date of death of

E.Bhaskar Naidu? If otherwise, is she entitled for partition of the

family pension with 5th respondent?

(3) Whether the order of 3rd respondent dated 29.06.2012

in rejecting the claim of the applicant for the grant of family

pension is liable to be set aside?

(4) To what reliefs the applicant is entitled for?

6. We heard the arguments of Mr. M.Selvaraj, learned counsel for the

applicant, Mr. B.Shanthakumar, learned Senior Panel Counsel appearing

for respondents-1 to 4 assisted by learned JAG Officer Suchithra

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Chellappan and Mr. Edwin Jesudoss, learned counsel appearing for 5th

respondent.

7. Point Nos.1 to 3:- The admitted facts in this case are that the

applicant is the mother of Late Nk E.Bhaskar Naidu who was enrolled in

the army on 21.09.1983 and was discharged on 01.09.2000 at his own

request. The applicant’s son Nk E.Bhaskar Naidu was receiving pension

after his retirement till the date of his death on 12.12.2001. The 5th

respondent was the wife of the said E.Bhaskar Naidu and she was

granted family pension on the death of her husband E.Bhaskar Naidu.

Subsequently, the 5th respondent married for the second time on

27.09.2009 and is now living with her second husband in a separate

residence.

8. The applicant’s further contention would be that she, being a

Class-I heir as per Hindu law, is entitled to get the family pension after

the re-marriage of 5th respondent with a person other than the brother

of her husband. The learned counsel for the applicant would also

contend that the provisions envisaged in Paras-216 and 219 of Pension

Regulations For the Army 1961, Part-I debar a widow from receiving

family pension on her re-marriage with any other person except her

deceased husband’s brother and continues to live a communal life with

and/or contributes support to the other living eligible heirs. He would

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emphasize in his argument that the applicant being the mother and one

of the legal heirs as per Hindu law, was deprived of the family pension

payable on the death of her son E.Bhaskar Naidu despite the fact that

the 5th respondent remarried some other person who is not the brother

of the deceased E.Bhaskar Naidu.

9. On careful consideration of the said argument, we examined the

conditions for the eligibility of the Special Family Pension in Para 219

(iii) of Pension Regulations For the Army 1961. For better appreciation,

the said paragraph is extracted hereunder:

“ Conditions of eligibility for a family pension:

219. A relative specified in Regulation 216 shall be eligible for

the grant of family pension, provided:

General

(i) He or she is not in receipt of another pension from

Government.

(ii) He or she is not employed under Government.

Widow

(iii) A widow has not remarried.

This condition shall not apply to a widow who remarried her

deceased husband’s brother and continues to live a communal

life with and/or contributes to the support of the other living

eligible heirs. “

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10. It was also argued by the learned counsel for the applicant that

the 5th respondent is not qualified to receive the family pension and on

her disqualification, the applicant being the legal heir of her deceased

son is entitled to the said family pension. For that he would draw our

attention to the provisions of Para-216 of Pension Regulations For the

Army 1961, Part-I. He would further argue that the mother is also

shown as one of the heirs entitled for the family pension.

11. Per contra, the learned counsel for 5th respondent would submit

that the provisions contained in Paras-216 and 219 and other provisions

in the said Chapter would apply only in respect of special family pension

and Para-212 of Pension Regulations For the Army 1961 read with Army

Instructions 51 of 1980 applicable for officers regarding grant of

ordinary family pension would apply to ordinary family pension. He

would also submit that Para-6 of the Army Instructions 51 of 1980

enlists the members of the family eligible for receipt of family pension in

which ‘mother’ is not referred to as a member entitled to family pension.

Therefore, he would further submit that the applicant as a mother is not

entitled to family pension even if the 5th respondent is disqualified to

receive the family pension and on that aspect the application itself is not

maintainable. In considering the arguments of both sides, we perused

Para-6 of the Army Instructions 51 of 1980 and we find that the

‘mother’ is not included as one of the members of the family. It is

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worthwhile to extract Para-6 of the Army Instructions 51 of 1980 which

runs as follows:

“ 6. Family for the purpose of Family Pension means:

(i) Wife/Husband provided the marriage took place before retirement

and also judicially separated wife/husband if the judicial separation

was granted not on ground of adultery and the person surviving was

not held guilty of committing adultery.

(ii) Sons below the age of 25 years.

(iii) Unmarried daughters below the age of 25 years.

(iv) Sons and daughters adopted legally upto the age limit (ii) and

(iii) above.

Note: Sons or daughters born after retirement and also a

posthumous child are entitled to family pension. “

A scrutiny of Paras-216 and 219 of Pension Regulations For the Army,

Part-I would reveal that the said provisions are codified in respect of

special family pension.

12. However, the learned counsel for the 5th respondent (widow)

would argue that the said paragraph has been modified by virtue of the

recommendations of VI Central Pay Commission and the implementation

orders passed by the Government thereon. He would also emphasize

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in his argument that a childless widow is entitled to ordinary family

pension even after her re-marriage with any other person but certain

conditions are imposed. In support of his argument, he would quote the

rules formulated in the Government of India letter

No.17(4)2008(2)(Pen/Pol), dated 12.11.2008 issued for implementation

of the recommendations of the VI Central Pay Commission.

13. In the said letter of the Government, the grant and eligibility of

family pension is dealt with in para 11.1 Category II; parents who are

wholly dependent on the armed forces personnel when he was alive are

included in the absence of widow or a child. The relevant provisions

referred in 11.1 and 11.2 are necessary for reaching a correct

conclusion. It runs as under:

“ 11.1. For the purpose of grant of family pension, the ‘Family’ shall

be categorized as under:

CATEGORY-I

(a) Widow or widower, upto the date of death or re-marriage

whichever is earlier;

(b) Son/daughter (including widowed daughter), upto the date of

his/her marriage/re-marriage or till the date he/she starts earning or

till the age of 25 years, whichever is earlier.

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CATEGORY-II

(c) Unmarried/Widowed/Divorced daughter, not covered by

Category I above, upto the date of marriage/re-marriage or till the

date she starts earning or upto the date of death, whichever is earlier.

(d) Parents who were wholly dependent on the Armed Forces

personnel when he/she was alive provided the deceased personnel

had left behind neither a widow nor a child.

Family pension to dependent parents, unmarried/divorced/widowed

daughter will continue till the date of death.

Family pension to unmarried/widowed/divorced daughters in

Category-II and dependent parents shall be payable only after the

other eligible family members in Category I have ceased to be eligible

to receive family pension and there is no disabled child to receive the

family pension. Grant of family pension to children in respective

categories shall be payable in order of their date of birth and younger

of them will not be eligible for family pension unless the next above

him/her has become ineligible for grant of family pension in that

category.

11.2. The dependency criteria for the purpose of family pension shall

be the minimum family pension along with dearness relief thereon. “

As per the above provisions, the applicant being the mother if she was

wholly dependent on her son when he was alive is also entitled to claim

family pension in the absence of his widow.

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14. The entitlement of a remarried childless widow is referred in Para

11.3 of the said letter. The said rule would run as follows:

“ 11.3. The childless widow of a deceased personnel shall continue

to be paid family pension even after her re-marriage subject to the

condition that the family pension shall cease once her independent

income from all other sources becomes equal to or higher than the

minimum prescribed family pension in the Central Government. The

family pensioner in such cases would be required to give a

declaration regarding the income from other sources to the pension

disbursing authority every six months. “

The above paragraph would clearly establish that the childless widow of

a deceased personnel shall be eligible for family pension even after her

re-marriage subject to a condition that the family pension shall cease

once her independent income from all other sources becomes equal to

or higher than the minimum prescribed family pension in the Central

Government.

15. As per the letter of Government of India, Ministry of Defence in

No.1(2) 2012-D (Pen/Policy), dated 15.5.2012, parents of the deceased

armed forces personnel, if they are alive and in the absence of a widow

and/or one or more than one child are entitled for family pension.

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Further, it clarifies that if the widow/children of the deceased armed

forces personnel would become ineligible and the parents are alive, they

would be entitled to the family pension of the deceased armed forces

personnel. The aforesaid letter dated 15.05.2012 is extracted as below:

“ Subject : Grant of Family pension to Dependent Parents of

Deceased Armed Forces Personnel.

Sir,

The undersigned is directed to refer to the provisions

contained in this Ministry’s letter No.B/38207/AG/PS-

4(B)/931/B/Defence (Pension/Service), dated 26.08.1998 which

provides for grant of family pension, the definition of family and other

points, ‘Parents who were totally dependent on govt employee while

he was alive with a condition that deceased Armed Forces Personnel is

not survived by a widow or child’ has also been included.

2. It has been observed that PLA/RO are interpreting the same as

the parents of the deceased Armed Forces Personnel will be entitled

for family pension only if they are alive. If deceased Armed Forces

Personnel is survived by a widow and/or one or more child, then

parents are not entitled for family pension till the widow/children

become ineligible or till their death.

3. It is hereby clarified that in case deceased Armed Forces

Personnel is not survived by a widow/widower or child, then the

dependent parents will become directly eligible to receive family

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pension. In case, where a deceased Armed Forces Personnel is

survived by a widow/widower or child and their position changes

subsequently because of their death or remarriage of the

widow/widower and or death or ineligibility of child/children including

disabled child, the dependent parents become eligible for family

pension. However, in terms of this Ministry Letter No.17(4)2008

(2)/D(Pen/Policy) dated 12.11.2008, a childless widow, subject to

dependency criteria, is entitled to the Family Pension even, after

remarriage. In such an event, the parents of the deceased Armed

Forces Personnel will become entitled to Family Pension only after the

childless widow dies or when her independent income from all sources

become equal to or higher than prescribed dependency criteria under

the rule.

4. This letter has been issued with the concurrence of Finance

Division of this Ministry vide their No. MF-10(4)/2011/Fin/Pen dated

09 May 2012.

Sd/ x x x x (Malathi Narayanan)

Under Secretary to Govt of India. ”

16. Cumulatively, we could also understand that the widows of the

personnel who retired or died on or after 01.01.2006 who have no

children borne out of wedlock with the deceased personnel is entitled to

receive the family pension.

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17. As far as this case is concerned, the husband of the 5th

respondent died on 12.12.2001 which is prior to the said notified date.

Whether this would disqualify the 5th respondent from getting the family

pension is the present question. In the said letter dated 12.11.2008,

the subject would indicate the following factors:

“ SUBJECT: IMPLEMENTATION OF THE GOVERNMENT DECISION

ON THE RECOMMENDATIONS OF THE SIXTH CENTRAL PAY

COMMISSION-REVISION OF PROVISIONS REGULATING

PENSION/GRATUITY/COMMUTATION OF PENSION/FAMILY

PENSION/DISABILITY PENSION FOR THE ARMED FORCES OFFICERS

AND PERSONNEL BELOW OFFICER RANK (PBOR) RETIRING OR DYING

IN HARNESS ON OR AFTER 01.01.2006. “

As mentioned above, we could understand that the issuance of the said

letter was intended to implement the Government decision on the

recommendations of the VI Central Pay Commission with regard to the

regulation of pension/family pension for armed forces officers and

Personnel Below Officer Rank, retiring or dying in harness on or after

01.01.2006. In the instant case, husband of the 5th respondent (son of

the applicant) died on 12.12.2001 after his retirement; his death was

not in harness and he retired prior to 01.01.2006. The grant of pension

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to the retiring officers on or after 01.01.2006 is governed by the letter

dated 12.11.2008. The said letter does not deal with pension, family

pension etc., in respect of the officers and Personnel Below Officer Rank

who have retired prior to 01.01.2006. Such inequality in granting the

benefits between pre and post 01.01.2006 retirees has been dealt with

in detail in various judgments of the Hon’ble Apex Court and were found

to be unconstitutional. The dictum laid down by the Hon’ble Apex Court

in the judgment reported in (2011) 11 SCC 429 (K.J.S. Buttar vs. UOI &

another) is very much on the point. The relevant passage would be as

follows:

“ As per Para 6 of these instructions/Letter dated

16.05.2001, any person, who is in receipt of disability pension as

on 1.1.1996 is entitled to the same benefit as given in Letter dated

31.1.2001. Further as per Para 7 of this letter, w.e.f. 1.1.1996 the

rates of war injury element shall be the rates indicated in the Letter

dated 31.1.2001. Thus, in our opinion in view of the Instructions

dated 31.1.2001 read with (sic the Instructions) dated 16.5.2001,

the appellant was entitled to the war injury pension. It is pertinent

to state that reading of Paras 6, 7 and 8 of the

Notifications/Circular dated 16.5.2001 makes it absolutely clear

that the said benefits were available to pre-1996 retirees also but

the rates were revised on 31.1.2001 and the revised rates were

made applicable to post-1996 retirees only. But subsequently by

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means of the Notification dated 16.5.2001 the revised rates were

extended to pre-1996 retirees also.

16. At any event, we have held that there will be violation

of Article 14 of the Constitution if those who retired/were invalided

before 1.1.1996 are denied the same benefits as given to those

who retired after that date.“ [Emphasis supplied by us]

18. In view of the principles laid down by the Hon’ble Apex Court in

the aforesaid judgment, it is quite clear that the personnel retired either

before or after 01.01.2006 should be treated equally and the benefits

conferred upon the dependents of the personnel who died in harness

either before or after 01.01.2006 will be the same.

19. Apart from that, the Government of India, Ministry of Defence in

its letter No.1(6)/2011-D (Pen-Policy) dated 06.01.2012 issued a

Clarification towards the grant of family pension to childless widow of

Armed Forces Officers and Personnel Below Officer Rank (PBOR).

According to the tenor of the letter, a childless remarried widow can get

the benefits of the letter of Government of India, Ministry of Defence,

dated 12.11.2008 even in a case where the deceased personnel died or

retired prior to 01.01.2006 or the childless widow got remarried prior to

the said date, i.e., 01.01.2006. The relevant paragraphs in the said

letter is extracted as below:

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“ 2. As per provisions contained in Para 11.3 of this Ministry’s above

said letter dated 12.11.2008, the childless widow of a deceased

Armed Forces Personnel shall continue to be paid family pension even

after her remarriage subject to the condition that the family pension

shall cease once her independent income from all sources becomes

equal to or higher than the minimum prescribed family pension in the

Central Government.

3. Consequent upon receipt of certain references from various

quarters seeking clarification regard applicability of above mentioned

provisions in cases where death of an employee took place prior to

1.1.2006, Ministry of Personnel, Public Grievances & Pension,

Department of Pension & Pensioners’ Welfare, New Delhi vide their

OM NO 1/4/2011-P&PW(E), dated 1st April, 2011 has decided in

consultation with Ministry of Finance (Department of Expenditure)

that the childless widow of a deceased employee who expired before

1.1.2006, shall also be eligible for family pension irrespective of the

fact that the remarriage of the widow had taken place prior to/on or

after 1.1.2006 subject to fulfillment of other conditions. The financial

benefits in such cases has, however, been allowed from 1.1.2006. “

20. Therefore, the death of the 5th respondent’s husband (son of the

applicant), viz., E.Bhaskar Naidu prior to 01.01.2006 will not take away

the application of the said provisions of the letter to the benefit of the

5th respondent or the applicant.

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21. Therefore, it is clear that the said implementation of VI Central

Pay Commission relaxing the rules for receipt of family pension in favour

of a remarried childless widow would also form an exception to the rule

envisaged in Para-219 (iii) of Pension Regulations For the Army 1961,

Part-I. The said provisions of Para-219 need to be read in conjunction

with the orders of the Government passed in Para-11(3) of its letter

dated 12.11.2008. However, the said continuity of payment of family

pension to the remarried childless widow is subject to a condition that

the income of the said remarried widow from all other sources shall not

be more than or exceeded the minimum family pension prescribed by

the Central Government.

22. The learned Senior Panel Counsel Mr. B.Shanthakumar would

also submit in his argument that the respondents-1 to 4 continue to pay

family pension to the 5th respondent as she is a remarried widow

childless entitled for family pension as per Para-11(3) of the

Government letter dated 12.11.2008 and the payment of family pension

would be stopped in the event of her income from all other sources

becomes equal or higher than the minimum prescribed family pension in

the Central Government. He would also submit that the Government

requires such family pensioners to give declarations regarding their

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income from all other sources to the pension disbursing authorities once

in every six months and the directions are strictly followed in this case.

23. In order to appreciate the contention of the learned Senior Panel

Counsel, we directed the respondents-1 to 4 to submit an Investigation

Report on the income from other sources of the 5th respondent and

accordingly an Investigation Report dated 02.04.2014 was filed in

respect of the income of the 5th respondent from all other sources. We

find from the investigation report that the only source of income of the

5th respondent was the family pension and she had no other sources of

income.

24. No doubt ‘mother’ is one of the legal heirs along with widow and

children of the deceased as per the provisions of Hindu Succession Act.

However, the family pension scheme is not an ‘Estate’ but is a different

scheme and a welfare measure framed by Government and was upheld

in a number of judgments of the Hon’ble Apex Court and the High

Courts. The non-inclusion of the ‘mother’ in the Pension Regulations for

the Army 1961 and Army Instructions 51 of 1980 as applicable to

ordinary family pension has not been challenged here.

25. The Hon’ble Apex Court laid down the principle in a case reported

in (1998) 2 Supreme Court Cases 361 between State of H.P. &

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another vs. Kedar Nath Sood & another, regarding the overriding

effect of pension schemes on general law of succession.

26. In the said judgment of the Hon’ble Apex Court, the rules framed

by the Pension Disbursing authority, viz., the appropriate Government

rules have been followed and the ‘mother’ or ‘father’ who were not

included in the list of eligible persons to receive the family pension were

not granted family pension.

27. In this case, the 5th respondent was a widow living at the time of

death of her husband and therefore, the applicant mother was not

eligible to receive the family pension. Admittedly, the 5th respondent

was nominated by the deceased husband Nk E.Bhaskar Naidu for the

receipt of family pension. Such nomination was done by the deceased

person on two separate occasions in favour of the 5th respondent. The

5th respondent was granted with ordinary family pension on the death of

her husband and the said grant of ordinary family pension in favour of

the 5th respondent was not challenged by the applicant till she was

remarried in the year 2009.

28. Further, the contention of the applicant that she was not having

sufficient income and was depending on the income through family

pension on the death of her son Nk Bhaskar Naidu is not germane for

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appreciation, since 5th respondent is not disqualified. It is also

contended that the 5th respondent was receiving the family pension

while living with the applicant till her re-marriage and thereafter, the

applicant is not able to sustain herself and therefore, she should be

granted a portion of the said family pension along with the 5th

respondent. The Dependence Certificate issued during the service

tenure of the personnel (applicant’s son) was also produced in support

of her claim. To countenance the said argument, the learned counsel

for the 5th respondent would submit that the applicant was having

landed properties and a house from which she is deriving more than a

sum of Rs.20,000/- per month. He would also submit that the 5th

respondent filed an affidavit stating that the applicant is exclusively

owning such properties and the same was supported by the

Investigation Report filed by the competent authorities, dated

02.04.2014. On a careful perusal of the Investigation Report dated

02.04.2014 in respect of the income of the applicant, we could see that

the annual income from immovable properties was shown as

Rs.24,000/-The agricultural properties standing in the name of the

applicant are shown and the house property belonging to the applicant

was also enlisted in Para-4 of the said report. The ownership of the

applicant in respect of those properties are not disputed by the 5th

respondent in the counter-affidavit and in the argument of the learned

counsel for the 5th respondent. The annual income from those

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properties has been shown as Rs.24,000/- per year which is less than

the minimum payment of pension in the Central Government. The

learned counsel for the 5th respondent was vehemently arguing that the

applicant is conducting a money-lending business and is deriving much

income. He would also state that the income of the applicant shown in

the Investigation Report is a pittance and she is getting more than

Rs.20,000/- per month. However, no documents have been produced

by the 5th respondent or by the learned counsel for the 5th respondent

to support this claim. In the said circumstances, we have to accept the

particulars given in the Investigation Report and the ownership of those

properties in favour of the applicant.

29. As far as this case is concerned, the Pension Regulations For the

Army 1961, Part-I Rules 216 and 219 are clearly meant for grant of

Special Family Pension. The payment of ordinary family pension is

mentioned in Para 212 of the Pension Regulations For the Army 1961,

Part-I and is governed by Army Instructions 51 of 1980. The provisions

as modified by the letters of GOI, dated 12–11-2008 and 06.01.2012,

the applicant-mother can seek any family pension on the basis of the

disqualification of the remarried widow despite the fact that she may be

entitled to other benefits from the Army, as a dependent of her son,

Late Nk Bhaskar Naidu. In this case, the 5th respondent was not found

disentitled from receiving the family pension since her remarriage is not

a disqualification as she had no children from the deceased husband Nk

25

Bhaskar Naidu at the time of her remarriage. The Investigation Report

in respect of her income from other sources would also reveal that she

had no income except the family pension money she is receiving. In

the said circumstances, there is no justification in disqualifying the 5th

respondent from receiving the family pension. Even if the 5th

respondent is deemed to have been disqualified, the applicant cannot,

yet, seek for ordinary family pension as a matter of right in the light of

the judgments of the Hon’ble Apex Court referred supra. The third

respondent has considered all these points and had rightly rejected the

claim of the applicant to family pension. The said denial of family

pension to the applicant is justifiable in view of our conclusions reached

above on the aforesaid reasons. Therefore, we are inclined to find all

the three points against the applicant.

30. Point No.4: While discussing the above points, we came to the

conclusion that the remarriage of the 5th respondent, who is a childless

widow of the deceased, would not disqualify her from the receipt of

family pension. Apart from that, her income from all other sources is

not equal or the above minimum prescribed payment of family pension

of Central Government and therefore the family pension payable to her

cannot be partitioned with the applicant even if the applicant is eligible

for receipt of family pension on the 5th respondent’s disqualification.

Further, partitioning of pension is permissible only in the case of Special

26

Family Pension. We also find that the applicant being a mother, cannot

get family pension as per the provisions of Army Instructions 51 of

1980, on the death of her son Nk Bhaskar Naidu, not being part of the

family for the purposes of receiving pension. Viewing all the factual

circumstances and the question of law, we decide all the three points

against the applicant and therefore, the application filed by the applicant

for the quashing of the order by the third respondent, dated 29.06.2012

in rejecting the family pension in favour of the applicant as also the plea

for partitioning of family pension from the date of death of applicant’s

son Nk Bhaskar Naidu on 12.12.2001 cannot be sustained.

31. Accordingly, the application is dismissed. In view of the

relationship between parties and in consideration of the age of the

applicant, there is no order as to costs.

Sd/ Sd/

LT GEN K. SURENDRA NATH JUSTICE V. PERIYA KARUPPIAH (MEMBER-ADMINISTRATIVE) (MEMBER-JUDICIAL)

08.07.2014

(True copy)

Member (J) – Index : Yes / No Internet : Yes / No

Member (A) – Index : Yes / No Internet : Yes / No

VS

27

To:

1. Ministry of Defence

New Delhi.

2. The Chief of Army Staff Rep. by Integrated HQ of Ministry

of Defence Army New Delhi.

3. The Officer in Charge Records The Records Signals

Pin 908770, C/o 56 APO.

4. Principal Controller of Defence Accounts (P), PCDA(P), Allahabad (UP).

5. Mr. M. Selvaraj, Counsel for applicant.

6. Mr. B.Shanthakumar

Senior Panel Counsel For Respondents.

7. Major Suchithra Chellappan

JAG Officer For Respondents-1 to 4

8. M/s. Edwin Jesudoss

& M. Rajasekaran For Respondent-5.

9. OIC, Legal Cell, ATNK & K Area Chennai.

10. Library, AFT, Chennai.

28

HON’BLE MR.JUSTICE V. PERIYA KARUPPIAH

MEMBER (JUDICIAL)

AND

HON’BLE LT GEN K. SURENDRA NATH

MEMBER (ADMINISTRATIVE)

O.A.No.45 of 2013

08.07.2014