PUSHPA RANI Vs. UNION OF INDIA

JUDGEMENT

(1.) Partap Singh was recruited into the Army on 16.1.1970 and was released on medical grounds on 11.5.1971. He was also granted the disability pension on his disability which was assessed at 20% by the Medical Board and he continued to draw the same right up to 12.1.1977, when he was called upon the appear before the Resurvey Medical Board, at the Command Hospital, (WC), Chandimandir, but as he had shifted his residence, the communication addressed by the Army Authorities could not be delivered to him. As no resurvey was held, the disability pension was discontinued from the year 1977. Partap Singh, thereafter, approached the Army Authorities through a representation dated 9.9.1995 asking for pension once again and he was called upon to submit his explanation as to why he had not reported to the Resurvey Medical Board in 1977 and also to provide certain other information. The explanation submitted by him was apparently accepted and he was called before the Resurvey Medical Board at the Command Hospital, Chandimandir, vide letter dated 13.3.1996 Annexure P-3 to the petition. The Medical Board on an appraisal of his disability once again assessed it at 20% and the information was, accordingly, conveyed to the CDA (P), Allahabad-respondent No. 3 vide letter dated 9.5.1996, Annexure P-4 and it appears that he was also granted anticipatory pension, but he died on 3.6.1996 as evidenced by the Death Certificate Annexure P-5 to the petition. The present petitioner, his widow, however, received a letter dated 12.8.1996 Annexure P-6 to the petition in which it was pointed out that the family pension that had been granted to Partap Singh, had been discontinued w.e.f. 8.4.1996 as the CDA (PF) had determined the percentage of his disability at between 15-19%. The petitioner also made a representation to the respondents for the grant of a family pension, but this too, was turned down vide communication dated 20.9.1996 Annexure P-8 to the petition, on the ground that as her husband had not been entitled to any pension on 13.1.1977 onwards and was not in receipt of any pension at the time of his death, the family pension too, was not payable. Annexures P-6 and P-8 have been impugned in the present proceedings.

(2.) Notice of motion was issued in this case and a reply has been put in on behalf of the respondents. The respondents have denied the claim with regard to the payment of pension to Partap Singh on the ground that his disability had been assessed at below 20%. The petitioner's claim to family pension has been controverted on the ground that Partap Singh was not receiving any pension of any kind after 13.1.1977 and at the time of his death which was a sine qua non for the payment of a family pension. The respondents have also relied upon Appendix II to Rule 27(c) of the Pension Rules to contend that CCDA (P) was the final authority in determining the percentage of disability and that this authority could even overrule the Medical Board.

(3.) Mr. S.S. Ahlawat, the learned counsel appearing for the petitioner has cited Wing Commander R.L. Sharma (Retd.) v. Union of India, 1994 4 RSJ 107through Secretary, Ministry of Defence, Govt. of India, New Delhi and others, SUKHWINDER KAUR V/S PUNJAB ROADWAYS, 1994 4 SCT 268(P&H)and Ex. Capt. Harbhajan Singh v. The Secretary, Ministry of Defence, Govt. of India, New Delhi and others, 1996 4 SCT 2221997(1) RSJ 340 : (P&H) and has submitted that the Resurvey Medical Board, that had examined Partap Singh was the final authority to determine the percentage of disability and the CCDA (P) Allahabad who had no occasion to examine him could not overrule the Resurvey Medical Board under any circumstances. He has also pointed out that in the reply filed by the respondents in response to the writ petition, no reasons have been spelt out to indicate as to why the authorities at Allahabad had disagreed or differed with the opinion expressed by the Resurvey Medical Board with regard to the extent of disability of the petitioner's husband Partap Singh.