(Order of the Tribunal made by Justice ACA Adityan)
1. A septuagenarian, poor widow of late Havildar V.Ramasamy who had served in the Army for nearly 21 years and after his retirement joined in civil service as a Night Guard in PWD Department who was discharged from the said re-employment on 01.11.1970, subsequently breathed his last on 26.02.1986, has approached this Tribunal challenging the impugned order of the Fourth Respondent dated 21.08.2009 under which the claim for Second Family Pension was rejected.
2. The short facts as narrated in the affidavit to the petition relevant for the purpose of deciding this case sans irrelevant particulars are as follows:- The applicants husband late Havildar V.Ramasamy after serving in the Indian Army for 21 years was discharged from service after fulfilling 15 years of terms of engagement, was decorated with the following medals and certificates-
i) Raksha Medal 1965
ii) Sainya Seva Services Medal with clasp Jammu and Kashmir Medal with clasp Himalayas Sainya Seva Services Medal
iii) The Delhi Red Fort Award
iv) Good Conduct Discharge Certificate No.0225
After his discharge from Army service, the applicants husband was reemployed with the Public Works Department till his death on 26.02.1986. After his death, the applicant was drawing her Family Pension from PWD Department. The applicant has been blessed with three children, out of them one son died in an accident and another son is unemployed and the only daughter is married. The applicants surviving son Barani Kumar holds a priority certificate from the Ex-servicemen Welfare Department in the year 1990 and is unable to get an employment. In this regard the applicants son has also approached the Madurai Bench of Madras High Court by way of filing a writ petition. The applicant had made an application to the first respondent for membership in Ex-Servicemen Contributory Health Scheme on 12.02.2010, annexing the required documents ie., the Dependant Certificate from the Records The Pioneer Corps dated 12.10.2009. The applicant has been informed that her applicant will be processed only if the applicant is recipient of the Army pension. Hence, the applicant applied to the fourth respondent through her pension disbursing Bank, viz., State Bank of India, Kumbakonam for grant of family pension as a legal heir to her deceased husband. The fourth respondent vide letter dated 12th May 2009 required some clarifications and the same was also clarified by the applicant on 9th July 2009. The fourth respondent had rejected the applicants claim for grant of Family Pension without taking into consideration the Government of India Order No.2/CC/B/D (pesion/services)/2001 dated 28th August 2001, wherein it has been envisaged that the widows are entitled to two Family Pensions. The applicant has been given a Widow/War Widow Identity Card No.2042. But, her legitimate claim was rejected by the fourth respondent under the impugned order. Hence, the application.
3. The respondents in their joint counter would admit that the applicants husband late Havildar V.Ramasamy was enrolled in the Pioneer Corps on 17th September 1948 as a non-combatant and he was discharged from Army service with effect from 1st November 1949 and re-enrolled as a combatant on the same date ie., 1st November 1949. He was later discharged from service with effect from 31st October 1970. Accordingly, he was granted service pension vide PCDA (P) Allahabad PPO No.S/24067170, dated 22nd September 1970. Through the applicant, the respondents were informed that her late husband was re-employed in the PWD, Vannar Basin Division, Thanjavur (Tamilnadu) after his retirement from Army service and died on 26th February 1986 and that after the death of her husband, she was granted Family Pension from PWD, Thanjavur (Tamilnadu).
3(a) As per the existing Rules, the applicant is entitled to get only one pension ie., either from Defence side or from civil side, which has already been granted to her by the PWD, Thanjavur (Tamil Nadu). Since she has opted for civil Family Pension and the option for family pension once exercised could not be changed under the existing Rules of that time, as shown in PCDA (P), Allahabad Circular No.46 (Gts/Tech/0113-XXIV), dated 21st January 1988. The said fact was also communicated to the applicant vide letter No.7991459/41/Pen (FP), dated 29th March 1989. After a lapse of 19 years, the applicant had approached the respondents through State Bank of India, Kumbakonam, for endorsement of family pension entitlement in PPO of her deceased husband.
3(b) Since the applicant is drawing pension from civil side, she was neither entitled for an endorsement of family pension in PPO of living Armed Forces pensioners nor for grant of Family Pension from Civil side. Accordingly, Records Office intimated the facts to the PCDA (P) Allahabad (pension Sanctioning Authority) vide letter No.7991459/SR/FP (End), dated 30th January 2009 and requested them to advise further course of action. PCDA (P) asked the applicant to obtain the following documents-
(a) Appendix Part I to IC (Re-employment certificate). Certificate is required to be completed by PWD from where she was receiving her family pension.
(b) Details of payment made to her by State Bank of India, Kumbakonam, on account of family pension sanctioned from Civil side
(c) Details of Civil basic pension and DA
(d) Option Certificate for military Family Pension instead of civil Family Pension
However, the applicant approached the Records Officer vide her petition Subha/pers/x/09 dated 9th July 2009 with a letter dated 19th June 2009 issued by the State Bank of India, Kumbakonam, stating that the widows of the deceased soldiers are entitled for two Family Pension. The applicant on the basis of the Government of India, Ministry of Personnel, Public Grievances and Pensions letter No.1/19/96-P and PW (E), dated 27th July 2001 and the Government of India, Ministry of Defence, letter No.2/CC/B/D (Penion/Services)/2001, dated 28th August 2001, claims that she is entitled to two Family Pensions, one from the Defence side and another from civil re-employment.
3(c) The applicant will be entitled to two Family Pension only if she shows that the pension she received from re-employment side is covered under Employees Pension Scheme 1995 and Family Pension Scheme 1971. But, she has not filed any Certificate to show that the Family Pension granted to her is covered under Employees Pension Scheme 1995 and Family Pension Scheme 1971. On her request, the respondents have forwarded a Dependant Certificate in her favour to apply for ECHS facilities vide letter No.7991459/Sr/N-(LC), dated 12th October 2009. The respondents thereafter by way of para wise comments would repeat the same contentions already putforth as referred to above and would finally contend that the applicant is not entitled to the relief asked for and hence, the application is liable to be dismissed.
4. We heard the learned counsel Ms.Tonifia Miranda appearing for the applicant and the learned Senior Panel Counsel for Central Government Mrs.Seethalakshmi and the learned JAG Officer Captain Jitendar Singh appearing for the respondents and considered their respective submissions.
5. Now the point for determination in this application is whether the impugned order of the fourth respondent dated 21.08.2009 is liable to be set aside and consequently whether the applicant is entitled to two Family Pensions as per the G.O.No.2/CC/B/D (pension/services)/2001 dated 28th August 2001 as prayed for?
6. THE POINT:- With regard to sanction of two Family Pensions to the widow, who are placed in similar circumstances of the applicant, We consider it as necessary that the following GOs are to be examined. G.O.No.1/19/96-P and PW(E), Government of India, Ministry of Personnel, Public Grievances and Pensions Department of Pension and Pensioners Welfare, dated 19th July 2002, deals with the subject grant of Family Pension under the Employees Pension Scheme 1995 and the Family Pension Scheme 1971 in addition to Family Pension under Rule 54 of the CCS (Pension) Rules 1972. The relevant Para No.3 in the said GO dated 19th July 2002 reads as follows-
âIt is clarified that the benefit of family pension under Family Pension Scheme, 1971 Employees Pension Scheme 1995, in addition to the Family Pension under Rule 54 of the Central Civil Services (Pension) Rules, 1972, will be admissible in those cases also where retirement / death of a reemployed Pensioner, who was covered by the Family Pension Scheme, 1971 or the Employees Pension Scheme 1995, took place prior to 27.07.2001, besides covering those cases where retirement / death of such a re-employed pensioner took place on or after 27.07.2001 of the re-employed pensioner covered by the Family Pension Scheme, 1971 or Employees Pension Scheme 1995, will, however, be admissible only with effect from 27.07.2001, i.e, the date from which the said Notification came into force.â
6(a) G.O.No.2/CC/B/D (Pension/Services)/2001, dated 28th August 2001, on which reliance was placed by the learned counsel appearing for the petitioner (Ex.R.15), deals with the subject grant of Family Pension under the Employees Pension Scheme 1995 and Family Pension Scheme 1971 in addition to Family Pension from Military side. The relevant portion in the said GO relevant to the facts of this case runs as follows-
âOffice Notification No.1/19/96 P and PW(E) dated 27.07.2001 will be applicable mutatis/mutandis to Armed Forces Personnel who were re-employed in the organisations/Establishments where Employees Pension Scheme, 1995 and Family Pension Scheme 1971 are in force. This will come into force on the date the ibid notification dated 27.07.2001 of DP and PW is published in the Officer Gazette ie., 27.07.2001.
Corresponding regulations of Pension Regulations for Army/Air Force/Navy will be amended accordingly in due course.â
6(b) CCS (Pension) Rule 13-B, which came into force before the above referred GOs viz. G.O.No.1/19/96-P and PW(E), dated 19th July 2002 and the G.O.No.2/CC/B/D (Pension/Services)/2001, dated 28th August 2001, were issued, reads that-
âFamily Pension admissible under this rule shall not be granted to a person who is already in receipt of Family Pension or is eligible therefore under any other rules of the Central Government or a State Government and/or Public Sector Undertaking/Autonomous Body/Local Fund under the Central or a State Government:
Provided that a person who is otherwise eligible for family pension under this rule may opt to receive family pension under this rule if he forgoes family pension admissible from any other source.â
Admittedly, the applicant herein had opted previously for civil Family Pension. But, subsequently, a proviso has been added to Rule 13-B of CCS (Pension) Rules, as follows-
âProvided further that family pension admissible under the Employees Pension Scheme, 1995 and the Family Pension Scheme, 1971, shall, however, be allowed in addition to the family pension admissible under these rules.â
This has been further clarified under Rules 24, which deals with âFamily Pension under the Employees Pension Scheme is admissible in addition to family pension under Rule 54 of the CCS (Pension) Rules, 1972â, which reads as follows-
âSub-rule 13-B of Rule 54 of CCS (Pension) Rules, 1972 was amended by notification, dated the 27th July, 2001, by insertion of the following proviso after the first proviso-
âProvided further that family pension admissible under the Employees Pension Scheme, 1995 and the Family Pension Scheme, 1971, shall, however, be allowed in addition to the family pension admissible under these rules.
2. The said amendment has come into force from the date of publication of the said Notification, ie., the 27th July 2001. Clarification has, however, been sought by some Ministries/Department as to (i) whether the said Notification is applicable only in respect of those persons who retired on or after 27.07.2001; (ii)whether the Notification would also apply in cases of family pensions which arose prior to 27.07.2001, ie., where retirement/death of a reemployed pensioner occurred before 27.07.2001; and (iii) in the event of the benefit being admissible in cases where retirement / death of a re-employed pensioner occurred before 27.07.2001, where the benefit is to be given with effect from 27.07.2001 only ie., the date from which the said Notification came into force.
3. It is clarified that the benefit of family pension under Family Pension Scheme, 1971 and Employees Pension Scheme, 1995, in addition to the Family Pension under Rule 54 of the Central Civil Services (Pension) Rules, 1972, will be admissible in those cases also where retirement / death of a reemployed Pensioner, who was covered by the Family Pension Scheme, 1971, or the Employees Pension Scheme, 1995, took place prior to 27.07.2001, besides covering those cases where retirement / death of such a re-employed pensioner took place on or after 27.07.2001. The benefit of second family pension in cases of retirement / death prior to 27.07.2001 of the re-employed pensioner covered by the Family Pension Scheme, 1971 or Employees Pension Scheme, 1995, will, however, be admissible only with effect from 27.07.2001, ie., the date from which the said Notification came into force. [G.I., Dept. of P and PW, O.M.No.1/19/96 â P and PW (E), dated the 10th July, 2002.]â
6(c) The main objection of the respondents as seen from the counter / reply statement is that the applicant has failed to submit a Certificate from re-employer of her deceased husband stating that the family pension granted to her is covered under Employees Pension Scheme 1995 and Family Pension Scheme 1971. But, along with the typed set of papers filed by the Respondents, Exhibit R.12 was also filed, wherein it has been certified by the Executive Engineer PWD/WEO, Vannar Basin Division, Thanjavur, that the applicant is covered under the Family Pension Scheme. Further, a Certificate has been issued by the Sub- Treasury Officer, Kumbakonam, stating that under PPO No.65895/FA, the applicant has been sanctioned a Family Pension with effect from 07.02.1986 at the rate of Rs.3,529/- per month.
6(d) Even though the Certificate issued by the Executive Engineer PWD/WEO, Vannar Basin Division, Thanjavur is to the effect that Family Pension sanctioned to the applicant is covered under the Pension Scheme he has not specifically stated the Pension Scheme as Family Pension Scheme 1971. It is not the case of the respondents that apart from the Family Pension Scheme 1971, there is any other Family Pension Scheme is in vogue. The Employees Pension Scheme 1995 relates to contributory pension scheme, which will not be applicable to the applicant herein. No doubt, the applicant has opted for civil Family Pension, than receiving the Service Family Pension because at that time the Civil Family Pension was beneficial to her. That option was exercised by her before the G.O.No.2/CC/B/D (Pension/Services)/2001, dated 28th August 2001, came into force. So, as per the GO.No.1/19/96 P and PW(E) dated 27.07.2001 and after G.O.No.2/CC/B/D (Pension/Services)/2001, dated 28th August 2001 came into force, the applicant is entitled to get two Family Pensions. But, she is entitled to second pension only from 27.07.2001 and not from the date of death of her husband as claimed by her in her application.
6(c) At this juncture, My learned Brother Administrative Member Lt Gen (Retd) S.Pattabhiraman would state that since the question involved in this case relates to public importance, Leave may be granted to the respondents and his request is considered. Point is answered accordingly.
7. In fine, the application is allowed and the impugned order of the fourth respondent dated 21.08.2009 is set aside and the application is allowed. But, the applicant is entitled to the second Family Pension only from 27.07.2001. For compliance three months. Failure in compliance will entail the applicant for 6% interest per month for arrears. No costs. Leave granted.