ANITA DEVI Vs. UOI

JUDGEMENT

(1.) By this writ petition, the petitioner prays for grant of special family pension to her in addition to ordinary family pension from the date of death of her husband, that is, with effect from 20.02.1999 after treating the death of her husband as attributable to or aggravated by military service.

(2.) The background facts in a nutshell are that Late Swr. Dharam Pal (hereinafter referred to as " the deceased") was enrolled in the army on 20th July, 1989 after medical examination by the Competent Recruiting Medical Authority and was found free from any kind of disease at the time of enrolment. While serving with 43 Armed Regiment, the deceased was admitted in the Base Hospital, Delhi Cantonment, due to Acquired Immune Deficiency Syndrome (AIDS) and died on 20th February, 1999 at the said hospital. The petitioner being the legally wedded wife of the deceased and entitled to all pensionary and death benefits of her late husband applied for the grant of special family pension and the claim of the petitioner along with all relevant documents was forwarded to the PCDA (P) Allahabad duly completed on 2nd November, 1999. The said special family pension claim was, however, returned by the PCDA (P) Allahabad vide their letter dated 4th January, 2000 for want of AFMSF-93 (Part-I and Part- II) and other medical documents. The claim was re-submitted to the PCDA (P) Allahabad along with requisite documents vide Armoured Corps Record letter dated 3rd February, 2000, and on 3rd April, 1999, the petitioner was sanctioned PEA of family pension at Rs.1,500/- per month till finalisation of family pension. However, the PCDA (P) Allahabad, after consideration of the claim of the petitioner, sanctioned ordinary family pension to her vide their letter dated 4th April, 2000, rejecting her claim for special family pension on the ground that she was not entitled to receive special family pension as the disease of her husband was neither attributable to nor aggravated by military service. A direction was also issued by the PCDA (P) Allahabad to stop PEA with effect from 1st January, 2000 and also to recover the amount of PEA already paid to the petitioner, that is, Rs. 22,929/- before payment of family pension vide PCDA (P) Allahabad PPO No. F/NA/2433/2000 dated 10th April, 2000. The petitioner preferred an appeal dated 21st February, 2000, which, after consideration by the First Appellate Authority, was rejected vide Army Headquarters letter dated 24th January, 2003 stating that "the death of the deceased was not in any way related to duties of military service and was not attributable to military service." A second appeal preferred by the petitioner on 21st July, 2003 met with a similar fate and was rejected by the Government of India, Ministry of Defence vide letter dated 23rd February, 2005.

(3.) The short issue involved in the present writ petition, therefore, is whether the family of a soldier who at the time of enrolment was found physically fit and acquired AIDS during his military service is entitled to the benefit of Special Family Pension. Counsel for the petitioner to buttress the petitioner's claim has relied upon the provisions of Rule 213 of the Pension Regulations Part I of 1961 which read as follows:-