M. Panchami and K. Japa Singh v Union of India and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE B.P.RAY MONDAY, THE 21ST DAY OF JANUARY 2013/1ST MAGHA 1934 WP(C).No. 36802 of 2008 (F) --------------------------- PETITIONERS: - ---------------- 1. M.PANCHAMI, W/O. JAPASINGH, AGED 62 YEARS, MANALIVILA VEEDU, ARAYOOR.P.O AMARAVILA VAZHI, THIRUVANANTHAPURAM DIST. 2. K.JAPA SINGH, MANALIVILA VEEDU, - -DO- BY ADVS.SRI.J.DEVADANAM SRI. VINOD J.DEV SRI.PRAMOD J.DEV. RESPONDENTS: - ------------------ 1. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI. 2. THE D.I.G (ADMN) DTE GENERAL,C.R.P.F. NEW DELHI. 3. THE D.IG.P. C.R.P.F, BANGALORE-64. 4. P. SUDHA, D/O. V. PATHROSE, AGED ABOUT 29, EDATHALA VILAKATHU VEEDU, ARAYOOR.P.O, AMARAVILA THIRUVANANTHAPURAM DISTRICT. R1-3 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R1-3 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 36802 of 2008 (F) : 2 : ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1 : TRUE COPY OF DEATH CERTIFICATE OF DECEASED VALSALAN DATED 24.11.1997.** - **EXT.P2 : TRUE COPY OF LEGAL HEIR CERTIFICATE ISSUED BY TAHSILDAR, NEYYATTINKARA DATED 05.02.1998.** - **EXT.P3 : TRUE COPY OF MARRIAGE INVITATION CARD OF 4TH RESPONDENT'S RE-MARRIAGE WITH ONE T.R. SHAJI.** - **EXT.P4 : TRUE COPY OF COMMUNICATION RECEIVED FROM 3RD RESPONDENT TO THE FIRST PETITIONER DATED 31.05.2000.** - **EXT.P5 : INTIMATION RECEIVED FROM 3RD RESPONDENT TO THE 1ST PETITIONER DATED 16.01.2002.** - **EXT.P6 : TRUE COPY OF COMMUNICATION RECEIVED FROM 2ND RESPONDENT TO THE 1ST PETITIONER DATED 28.12.2002.** - **EXT.P7 :** TRUE COPY OF COMMUNICATION RECEIVED BY THE 1ST PETITIONER DATED 10.06.2003. - **EXT.P8 : TRUE COPY OF COMMUNICATION RECEIVED FROM 3RD RESPONDENT TO THE 1ST PETITIONER DATED 23.05.2003.** - **EXT.P9 : -DO- -DO- DATED 21.08.2004. EXT.P10 : -DO- -DO- DATED 13.02.2006.** ## **RESPONDENTS' EXHIBITS:** - **EXT.R(A) : MARRIAGE DECLARATION FORM DATED 23.09.1997. EXT.R(B) : ADIGP, GROUP CENTRE, BANGLORE LTR NO.PIII-130/97GC PEN DATED 24.11.1997 REGARDING VERIFICATION OF MARITAL STATUS.** - **EXT.R(C) : REPLY OF SP, THIRUVANANTHAPURAM RURAL DATED 28.01.1998.** **EXT.R(C)(I) : MARRIAGE CERTIFICATE ISSUED BY CSI CHURCH. EXT.RC(II) : CERTIFICATE DATED 29.12.1997 ISSUED BY CHURCH OF SOUTH INDIA.** WP(C).No. 36802 of 2008 (F) : 3 : - **EXT.R(D) : ADIGP, GROUP CENTRE, CRPF, BANGLORE, LETTER NO. PIII-130/97-GC PEN DATED 24.11.1997 REGARDING PAYMENT OF PENSIONARY BENEFITS TO WIFE OF DECEASED.** - **EXT.R(E) : PARAWISE COMMENTS TO DIRECTORATE GENERAL, CRPF ON LEGAL NOTICE PREFERRED BY SHRI. JAPASINGH, FATHER OF THE DECEASED CONSTABLE.** - **EXT.R(F) : APPLICATION DATED 07.04.2000 SUBMITTED BY SMT. PANCHAMI IN RESPONSE TO GC BANGLORE LETTER DATED 24.11.1997.** - **EXT.R(G) : LETTER OF CRPF GC BANLORE DATED 26.04.2000 IN RESPONSE TO APPLICATION OF SMT. M. PANCHAMI, DATED 07.04.2000.** - **EXT.R(H) : LETTER OF ADIGP GC BANGLORE DATED 31.05.2000 TO SMT. P. SUDHA, WIDOW OF LATE CT. J. VALSALAN ASKING FOR CONFIRMATION ABOUT HER RE-MARRIAGE.** - **EXT.R(I) : LETTER OF ADIGP GC BANGLORE DATED 28.06.2000 TO SMT. P. SUDHA, WIDOW OF LATE CT. J. VALSALAN REQUESTING FOR INTIMATION ABOUT HER REMARRIAGE.** - **EXT.R (J) : LETTER OF ADIGP GC BANGLORE DATED 13.07.2000 TO SP, TRIVANDRUM SEEKING FACTUAL POSITION ON REMARRIAGE OF WIDOW OF LATER CT. J. VALSALAN.** - **EXT.R(K) : APPLICATION DATED 11.07.2000 FROM SMT. P. SUDHA ADDRESSED TO ADIGP, GC BANGLORE REVEALING THAT SHE RE-MARRIED ON 03.05.2000.** - **EXT.R(L) : LETTER OF ADIGP GC BANGLORE DATED 18.07.2000 TO ASST. DIRECTOR (PENSION) PAY AND ACCOUNTS OFFICE, NEW DELHI INFORMING RE-MARRIAGE OF WIDOW OF LATE CT. J. VALSALAN WHO IS DRAWING FAMILY PENSION.** - **EXT.R(M) : LETTER OF ADIGP GC BANGLORE DATED 06.09.2000 ADDRESSED TO SHRI. R. JAPASINGH, FATHER OF LATE CT. J. VALSALAN INFORMING HIM THAT THEY ARE NOT IN A POSITION TO HELP HIM.** - **EXT.R(N** ) **: LETTER OF ADIGP GC BANGLORE DATED 16.11.2000 ADDRESSED TO SHRI. K. JAPASING, F/O LATE CT. J. VALSALAN THAT SMT. P. SUDHA HAS NOW ALLOWED TO DRAW NORMAL FAMILY PENSION UNDER CCS (PENSION) RULES 1972 FROM THE DATE OF HER RE-MARRIAGE AND AS SUCH FAMILY PENSION CANNOT BE SANCTIONED TO FATHER OR MOTHER OF THE DECEASED.** WP(C).No. 36802 of 2008 (F) : 4 : - **EXT.R(O) : DIRECTORATE GENERAL, CRPF LETTER DATED 25.02.2002 FORWARDING REPRESENTATION OF SMT. M. PANCHAMI, M/O. LATE CT. J. VALSALAN RECEIVED FROM MHA.** - **EXT.R(P) : GC BANGLORE FAX MESSAGE DATED 28.02.2002 CONVEYING INADMISSIBILITY OF FAMILY PENSION TO MOTHER OR FATHER OF LATE CT. J. VALSALAN.** - **EXT.R(Q) : GC BANGLORE SIGNAL (WIRELESS MESSAGE) DATED 26.03.2002 ADDRESSED TO DIRECTORATE GENERAL, CRPF, REGARDING DISBURSEMENT OF FINAL PAYMENT AMOUNTS TO DEPENDENTS.** - **EXT.R(R) : GC BANGLORE LETTER DATED 26.03.2002 ADDRESSED TO PARENTS OF LATE CT. J. VALSALAN IN RESPONSE TO THEIR REPEATED REQUEST FOR FAMILY PENSION.** - **EXT.R(S) : GC BANGLORE LETTER DATED 16.04.2003 ADDRESSED TO MOTHER OF LATE CT. J. VALSALAN REGARDING PAYMENT OF RISK FUND LUMP SUM PAYMENT MADE TO SMT. SUDHA, WIFE OF DECEASED C.J. VALSALAN AS PER NOMINATION.** - **EXT.R(T) : GC BANGLORE LETTER DATED 23.05.2003 ADDRESSED TO PARENTS OF LATE CT. J. VALSALAN IN RESPONSE TO THEIR REQUEST FOR RISK FUND FINAL PAYMENT WHICH WAS REPLIED TO VIDE LETTER DATED 16.04.2003.** - **EXT.R(U) : GC BANGLORE LETTER DATED 21.05.2004 ADDRESSED TO SHRI. K. JAPASINGH, FATHER OF LATE J. VALSALAN IN RESPONSE TO THEIR REQUEST FOR RISK FUND FINAL PAYMENT VIDE APPLICATION DATED 06.08.2004.** - **EXT.R(V) : GC BANGLORE LETTER DATED 23.02.2006 ADDRESSED TO PARENTS OF LATE CT. J. VALSALAN EXPLAINING FACTUAL POSITION IN RESPONSE TO THEIR APPLICATION DATED 30.01.2006.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** rv ## **B.P. RAY, J.** ## **- - - - - - - - - - - - - - - - - W.P.(C) No.36802 of 2008** **- - - - - - - - - - - - - - - -** ## **Dated this the 21[st] day of January, 2013.** ## **JUDGMENT** Heard both sides. 2. Petitioners are the parents of deceased J. Valsalan, who died in an insurgent attack at Pastoi Market (Imphal) while he was in service under respondents 1 to 3. The 4[th] respondent who was his wife, was awarded with Liberalised Penisonary award and she got re-married on 03.05.2000. On re-marriage, the widow being disqualified, the same was stopped and she was paid ordinary family pension as a special provision. The parents are not getting any pension. Hence, this writ petition with the following prayers: 1. To declare that the petitioners are the legal heirs of deceased Valsalan who died on 02.11.1997 while in service under respondents 1 to 3. 2. To issue a writ of mandamus or any other writ, direction or order directing respondents 1 to 3 to sanction family pension of the deceased Valsalan to the petitioners with effect from 03.05.2000 the date of the re-marriage of the 4[th] respondent, the wife of deceased. 3. To declare that petitioners are entitled to draw all the death benefits and compensation of deceased Valsalan. W.P.(C) No.36802/2008 -:2:- 3. The learned counsel for the petitioners submits that as per sub-Section (4) of Section 4 of the consolidated orders on LPA [GOI, Department of Pension and Pensioners Welfare, O.M. No. 33/5/89-P&P.W.(K), dated the 9[th] April, 1990 as modified by O.M. No. 45/22/97-P&PW(C) dated the 3[rd] February, 2000], the parents are eligible for 75% of the pay last drawn by the deceased and a single parent is eligible for 60% of the pay last drawn without reference to the pecuniary circumstances of the parents provided the government servant dies as a bachelor or as a widower without children. Section 4 of the consolidated orders on LPA reads as follows: ## “4. **Benefit to the family in the event of the Death of the Government Servant - family pension under categories 'D' & 'E'.** - 1) If the Government servant is survived by the widow, she will be entitled to family pension equal to the pay last drawn by the deceased Government Servant. The said family pension shall be admissible to her for life or until her remarriage. - 2) In the event of remarriage of the widow, family pension will be allowed at the rates of family pension and subject to the conditions laid down for family pension under the CCS (Pension) Rules, 1972, from the date following the date of her marriage. - 3) If the Government servant is not survived by widow but is survived by child/children only, all children together shall be eligible for family pension at the rate of 60% basic pay, subject to a minimum of Rs.2500/- Children's Allowance, as admissible now, stands abolished. The above family pension shall be payable to the children for the period during which they would have been eligible for family pension under the W.P.(C) No.36802/2008 -:3:- CCS (Pension) Rules, 1972. The family pension shall be paid to the senior most eligible child at a time on the lines on which family pension is regulated under the CCS (Pension) Rules, 1972. - 4) Where the Government servant dies as a bachelor or as a widower without children, dependant pension will be admissible to parents without reference to the pecuniary circumstances at 75% of the pay last drawn by the deceased Government servant for both parents and 60% of the pay last drawn by the deceased Government servant for a single parent. On the death of one parent dependant pension at the latter rate will be admissible to the surviving parent. 4. The learned counsel for the petitioners placing reliance upon the decision reported in **Padmavathy Amma v. Union of India and others** - 2009 KHC 1163, submits that upon disqualification of one member the other dependent family members are eligible for the family pension. The operative portion of the said decision reads as follows: 4. According to me, the decision in _Kunhami's_ case (supra) is squarely applicable in this case and the respondents, therefore, cannot legally canvass the position that incurring of disqualification by the widow on account of re-marriage would not make the mother of the concerned deceased personnel eligible for the grant of family pension. The provisions under the Regulations were framed with a view to render financial assistance to the family of the deceased Armed Force Personnel on whom they were dependent for their survival. Admittedly, in this case, after the death of the concerned person, family pension was granted to the primarily eligible person, who is his widow. She was drawing pension and thereafter on account of her re-marriage she incurred disqualification to continue to draw the pension. It is only thereafter that the petitioner who is the mother of the deceased Unni Pillai applied for family pension. Indisputably, mother of a deceased Armed Force Personnel is an eligible family member to draw family pension. Going by the decision of this Court in _Kunhami's_ case (supra) rendered relying W.P.(C) No.36802/2008 -:4:- on the decision of the Hon'ble Apex Court in _S.K. Mustan Bee v. The General Manager South Central Railway & Anr._ reported in (JT 2002 SC 50), the said reason cannot be assigned to deny family pension to a person like the petitioner. So also, no provision was brought to my notice under the Army Regulations by the respondents which would permanently disentitle ordisqualify other surviving, eligible family members for the grant of family pension on the death or disqualification of the 'family pensioner' subject to the order of priority. In short, the respondents cannot assign the ground that the primarily eligible person _viz_ ., the widow was originally sanctioned the family pension and was drawing the same and therefore, the next eligible family member is ineligible to claim family pension even subsequent to the incurring of disqualification by such 'family pensioner'. Accordingly, Ext.P6 is quashed. Since the sole objection raised for granting family pension to the petitioner was thus found unmerited and untenable, there cannot be any further impediment for the grant of family pension to her. Therefore, there shall be a direction to the respondents to sanction family pension including arrears due, to the petitioner within three months from the date of receipt of a copy of this judgment. 5. On a reading of the aforesaid OM, it is found that the family pension is intended for all the dependents of the deceased. Hence, when one member is disqualified (widow), other members are eligible for family pension. Since on remarriage of the widow, she is residing with her new husband at the new residence, it can be reasonably expected that she may not be in a position to look after the parents of the deceased. 6. On disqualification of the widow on re-marriage, the parents are eligible for LPA subject to the limits mentioned in sub-Section (4). Since a sum is being paid to the widow as ordinary family pension on re-marriage, the same can be W.P.(C) No.36802/2008 -:5:- deducted from the LPA which was granted to the widow initially. The parents are eligible for the balance amount of the LPA subject to the limits mentioned i.e., 75% for parents and 60% for a single parent, of the pay last drawn by the deceased government servant. Therefore, I direct the 1[st] respondent to release pension to the petitioners within three months from the date of receipt of a copy of this judgment. This writ petition is disposed of as above. **Sd/- B.P. RAY, JUDGE.** rv W.P.(C) No.36802/2008 -:6:-