Shiksha Batyal vs Union Of India And Others

M.A No. 1638 of 2018:

Keeping in view the averments made in the miscellaneous application and finding the same to be bona fide, in the light of the decision in Union of

India and others v. Tarsem Singh (2008) 8 SCC 648, the M.A is allowed condoning the delay in filing the O.A.

0.A No. 1552 of 2018:

The challenge in this 0.A is against the letter issued by the third respondent dated 19.07.2018 (Annexure Al), whereby the respondents have

rejected the request of the applicant for grant of second service pension to her husband for the service rendered by him in the Defence Security Corps

(DSC) on the ground that there was shortfall in the mandatory qualifying service of 15 years to make him eligible for second service pension and

resultantly, the applicant is also not eligible for grant of dual family pension based on her late husband's second service in the DSC, in accordance with

contents of the letter dated 20.06.2017 issued by the first respondent (GoI/MoD).

The facts, in brief, are that, the applicant is the widow of Ex Hay Ku!dip Chand of the DSC, who died on 16.10.2010. He was initially enrolled in

the Indian Army on 22.02.1966 and discharged from service with effect from 28.02.1990, after rendering 24 years and 07 days of service. He was

granted service pension for the said service. Thereafter, on 16.11.1991, the husband of the applicant was re-enrolled in the Defence Security Corps

(DSC) service and was discharged with effect from 28.02.2006 on attaining the age of superannuation on completion of 14 years, 03 months and 12

days of service. His former service was not counted towards DSC service as per the option exercised by the husband of the applicant and he

continued to draw his former service pension separately throughout, in addition to the pay and allowances for the DSC service. For the service

rendered in DSC, he was paid Service Gratuity and Retirement Gratuity at the time of his discharge from DSC Service. Since the husband of the

applicant was short of 08 months and 18 days to complete the qualifying service for service pension in respect of the service rendered in the DSC, he

was not granted second service pension. After retirement from DSC service, till his death on 15.01.2010, the husband of the applicant never sought or

agitated the issue of grant of second service pension. The applicant was granted ordinary family pension qua service pension which her husband was

in receipt for the first service rendered in the Army. This is how the 0.A came to be filed by the applicant, the widow of Ex Hay Kuldip Chand,

seeking grant of second service pension for the service rendered by her deceased husband in the DSC and dual family pension thereto for herself

after condoning the shortfall of 08 months and 18 days in view of the order of this Tribunal dated 07.11.2013 in the matter of Bhani Devi v. Union of

India and others (0.A No. 60 of 2013 decided on 07.11.2013).

This issue reached the Full Bench of this Tribunal when a Division Bench of this Tribunal had expressed doubts over the correctness of the

proposition laid down by another Division Bench of this Tribunal in Shan/ Devi (supra). On reference, the Full Bench of this Tribunal framed the

following questions:

(a) Whether there should be condonation of deficiency of service for grant of second pension of DSC service like regular Army personnel in terms of

GoI, MoD letter dated 14.08.2001 and Para 44 of Army Pension Regulations or be dealt in terms of GoI MoD letter dated 20.06.20172

(b) Should the application for condonation of deficiency of service ought to be made by the official during his life time, if not within how much time

should it be made?

(c) Can such an application be filed by the widow of the employee, if so, within how much time must it be done?

(d) Does the judgment of Bhani Devi v. Union of India and others - 0.A No. 60 of 2013 dated 0711.2013 decided by the AFT lay down the correct

legal proposition of law?

(e) Can the AFT interfere with policies issued by GoI (MoD) of individual services?

The Full Bench, while considering the aforesaid issues, chiefly relied on the following decisions:

(i) Supreme Court decision in Union of India and another v. Surender Singh Parmar (CA No. 9389 of 2014 dated 20.01.2015;

(ii) AFT Kochi Bench decision in Ex Nk/DSC Mohanan T v. Union of India and others (0.A No. 131 of 2017 dated 12.10.2017) as affirmed by the

Supreme Court decision in CA No. 27100 of 2018 dated 2708.2018; and

(iii) AFT (Principal Bench) decision in Bhani Devi v. Union of India and others (0.A No. 60 of 2013 dated 0711.2013, Principal Bench, AFT);

After considering the rival contentions, the Full Bench summarised the answers to the aforesaid questions, in the following manner:

(I) In reference to Question No. (a), the issue of condonation of shortfall upto one year (twelve months) in qualifying service for grant of pension to

members of the Defence Security Corps who have 14 years or more service stands fully settled as per law declared by Constitutional Courts and

interpretation rendered by this Tribunal, amongst others in Chattar Pal by the Honble Supreme Court wherein the Respondents themselves have

accepted the applicability of condonation upto one year for personnel of Defence Security Corps, by the Honble High Courts of Delhi and Punjab &

Haryana in Madan Singh and Mani Ram respectively and also by this Tribunal in Shan! Devi and Mohanan T (supra). The general applicability of

condonation of shortfall upto one year by judicial intervention has also been settled by the Honble Supreme Court in Surender Singh Parmar's (supra).

Therefore, condonation of shortfall in qualifying service upto ""one year"" for grant of pension shall also be available to the personnel of the Defence

Security Corps (DSC).

(ii) Clubbing point of reference (b) and (c), it is held that widows of defence personnel have the right to approach this Tribunal to claim pension or

family pension in consequence to the claim of pension qua deceased employees which falls within the definition of ""service matter"" under the Act and

this right is provided by Section 2(2) of the Armed Forces Tribunal Act, 2007 Though there is no applicability of limitation in continuing wrongs and

recurring causes of action, the arrears of pension, in the specific cases of condonation of shortfall, would however have to be restricted from

14.08.2001 as already directed in Paragraph 12 of Surender Singh Parmar (supra) which is binding on us. Further, the claims of dual family pension (in

addition to the first family pension) would have to be restricted from 24.09.2012, as already provided by Ministry of Defence letter dated 17.01.2013

(supra). (emphasis supplied)

Following the Full Bench order made on reference, in Shama Kaur v. Union of India and others (0.A No. 1238 of 2016 decided on 14.10.2020), a

two Member Bench of this Tribunal held that in the light of the decision in Bhani Devi (supra), the personnel of DSC are entitled for condonation of

the shortfall in qualifying service up to 'one year' for grant of pension and condoned the shortfall in qualifying service. It further held that as per

Section 2(2) of the Armed Forces Tribunal Act, 2007, widows of Defence personnel, heir or successor in so far as it relates to service matters of

deceased personnel, widows are entitled to dual family pension, in addition to the first family pension.

We are of the considered view that the case on hand is squarely covered by the decision in Smt. Shama Kaur (supra). Furthermore, in the light of

the finding recorded therein, we hold that the late husband of the applicant is eligible for condonation of shortfall of 08 months and 18 days and he is

eligible for second service pension for the services rendered in DSC with effect from 01.03.2006 till his date of death i.e. 16.10.2010 and from

17.10.2010, the applicant, being the widow of Ex Hay Ku!dip Chand, will be eligible for second family pension, in addition to the first family pension.

However, in view of the contents in the Ministry of Defence letter dated 17.01.2013, she will be eligible for arrears of second family pension only with

effect from 24.09.2012.

The instant 0.A is, therefore, allowed with the following directions:

(i) The shortfall of 08 months and 18 days of qualifying service for second service pension in respect of the late husband of the applicant is condoned;

(ii) Subject to verification of records, the respondents are directed to issue a corrigendum PPO granting second service pension for the service

rendered by the husband of the applicant in DSC with effect from 01.03.2006 till his death i.e. on 16.10.2010 and thereafter second family pension to

the applicant with effect from 17.10.2010;

(iii) The respondents are directed to calculate and pay the arrears of second service pension of the husband of the applicant with effect from

01.03.2006 till his death on 16.10.2010;

(iv) The respondents are directed to calculate and pay the arrears of second family pension with effect from 24.09.2012; and

(v) The respondents shall implement this order within four months from the date of receipt of a copy of this order. In default, the applicant will be

entitled to interest © 6% per annum till payment.

No order as to costs.