Smt. Gurdei vs Union of India (UOI) and Others

Bhawani Singh, A.C.J.

Petitioner, Smt. Gurdei, is the widow of late Naib-Subedar Lala, Victoria Cross Holder. By now, she is 95 years old and blind since 1965. According to her, Naib-Subedar Lala was in the Indian Army from 1901 to 1924. He participated in the Great World War-I in 1916. It was by virtue of his dedication to work and bravery that this highest military sward was conferred upon him. On medical grounds, he was released from the Army in 1924 with pensionary benefits.

Petitioner''s husband died on 23rd March, 1927. He left behind two widows, namely, Smt Kaula Devi and the Petitioner. On the death of the husband, both the widows applied for the family pension and Victoria Cross Allowance. It was denied to the Petitioner since it was granted to Smt Kaula Devi, being the senior widow. Smt Kaula Devi did not realise the family pension and the Victoria Cross Allowance and she died on 14th August, 1929. The Petitioner asked the Respondents to give her the family pension and the Victoria Cross Allowance. Her case was examined, however, nothing was done. It appears, it was rejected on the basis that the Petitioner was the second widow and the family pension could not go beyond two lives -one for the husband and the second for the senior widow. It appears that the case of the Petitioner was examined in the year 1988 also. It is apparent from the communication dated 7th May, 1988 (Annexure P-2) whereby it has been recommended by Capt. R K. Singh, Record Officer. However, nothing was heard on this subject for sometime. The Petitioner approached them again through communication dated 2nd October, 1990 (Annexure P-3) We have a communication of 24th February, 1989 (Annexure P-5) on the record of this case. From para 3 of this communication, it is clear that the case of the Petitioner has been rejected on the ground that she is the second wife of late Naib- Subedar Lala, Victoria Cross Holder, therefore, she was not entitled to any family pension as per the Rules and Regulations. Having failed to secure the family pension, the Petitioner has moved this Court through this writ petition claiming family pension as well as Victoria Cross Allowance from 1929.

Notice of this petition was issued to the Respondents on 7-4-1993. Reply-affidavit has been filed by Lt. Shiv Kumar, Assistant Record Officer, Dogra Regiment. The stand taken by the Respondents is that the Petitioner has not been allowed the family pension and the Victoria Cross Allowance since she is the second widow of late Naib-Subedar Lala, and according to the Rules, the family pension cannot extend beyond two recipients. The Petitioner being the third, is not entitled to the same. It has also been stated that the Petitioner was extended financial help recorded in para 3 of the reply.

Shri K.D. Sood, learned Counsel for the Petitioner, forcefully contended that Regulations prohibiting her claim are not applicable to the present case since they are later in point of time The Petitioner had married late Naib-Subedar Lala at a time when the Hindu Marriage Act, 1955, prohibiting plural marriage, had not come into force. The alternative contention of Shri K.D. Sood is that the rule making authority did not anticipate a situation where a person could have more than one wife and in case of death of the husband, the family pension and Victoria Cross allowance ought to be distributed to both of them equally or in some ratio or paid to one after the other The final submission of Shri K.D. Sood was that in any case, the rule in the aforesaid background is arbitrary and deserves to be quashed. We proceed to examine these contentions.

On the first question, it is a fact that the Petitioner is the second widow of late Naib-Subedar Lala. The marriage had taken place before the commencement of the Hindu Marriage Act, 1955. Naib-Subedar Lata could have kept more than one wife. There was no illegality of any kind to this marriage Proceeding further, the instructions for the award of family pension and Victoria Allowance were framed in 1961, many years after late Naib-Subedar Lala had become recipient of the pension and the Victoria Cross allowance with two wives with him. While framing these instructions, it appears, the authority concerned did not cover a case of the kind which is before us, therefore, these instructions did not apply to the present case.

Turning to the second aspect of the contention of Shri K.D. Sood, we are of the considered opinion that both the widows had to be placed at the second stage after the death of Naib-Subedar Lala, so the second recipients of the family pension and the Victoria Cross Allowance. In view of this conclusion, the dispute whether the first widow had actually received the amount or not, becomes wholly insignificant.

Let us turn to the vires of the instructions so seriously assailed by Shri K.D. Sood. In case the rule does not cover the case of present nature, it is unmistakably arbitrary in character. There is no justifiable reason to exclude the second widow from receiving the family pension and the Victoria Cross Allowance when her marriage with late Naib-Subedar Lala was legal. It deprives her, without any reasonable or justifiable grounds, to receive the family pension and Victoria Cross allowance, which right she acquires being the legally wedded wife of deceased Naib-Subedar Lala. The rule is, therefore, held to be arbitrary and unreasonable.

We would like to deal with one more submission raised by Shri K.D. Sood. It was submitted by the learned Counsel that family pension is not a bounty, but it is a right which is the result of long and continuous service rendered by a person. In addition, it is the product of Articles 14, 16 and 21 of the Constitution of India. It is not necessary to give elaborate reasons on this question in view of the two decisions of the apex Court placed before us. The first decision is reported in D.S. Nakara and Others Vs. Union of India (UOI), which is followed in the second decision reported in 1985 (2) SLR 537, Poonamal (Smt) etc. v. Union of India and Ors. In para 6 of this judgment (at pp. 538-539), D.A. Desai, J, who wrote the judgment in D.S. Nakara''s case, said that:

... Where the Government servant rendered service, to compensate which a family pension scheme is devised, the widow and the dependent minors would equally be entitled to family pension as a matter or right. In fact we took upon pension not merely as a statutory right but as the fulfilment of a constitutional promise inasmuch as it partakes the character of public assistance in cases of unemployment, old-age, disablement or similar other cases of undeserved want Relevant rules merely make effective the constitutional mandate. That is how pension has been looked upon in D.S. Nakara''s judgment...

The aforesaid decisions also help the Petitioner in seeking the claim for family pension and grant of Victoria Cross allowance.

Look at the state of this old and helpless widow, aged 95 years, blind for the last many years. She has rightly claimed the family pension and the Victoria Cross Allowance as a matter of right. The Respondents should not have taken recourse to legalism, rather they should have taken immediate steps to cover a case of present nature by tampering the same with socio-economic justice and awarded family pension and Victoria Cross Allowance to her and should not have compelled her to involve herself in continuous communications for seeking the claims rightfully due to her.

The result of the aforesaid discussion, therefore, is that the present petition is allowed. The Respondents are directed to pay family pension and Victoria Cross Allowance to the Petitioner from 1929 alongwith other allowances admissible on these amounts from time to time. Since great injustice has been done to the Petitioner, the Respondents would pay interest to the Petitioner on the arrears at the rate of six percent per annum upto 1970, at the rate of 8 percent per annum from 1971 to 1985 and at the Tate of 12 percent per annum from 1985 till the date of payment. In future, the family pension and Victoria Cross Allowance would be paid regularly. This decision be implemented within a period of three months from today, including payment of arrears. Costs Rs. 1,000.