The facts alleged are that the petitioner is the widow of Late Shri Mali who was enrolled as a Sweeper (Safai Sewak) in the Army on 21.09.1965. He was discharged without any notice on 06.12.1981 from service as services no longer required in the interest of State under Army Rule 13 after serving for 16 years and 07 months. After his discharge, he made a number of representations to the authorities to grant pension and other benefits and during that period, he died on 16.06.1989. After the death of her husband, the petitioner sent legal notice dated 08.04.2010 for grant of Family Pension (Annexure A1). The respondents vide letter dated 27.04.2010 refused to release any pensionary benefits to the petitioner (Annexure A2). It is alleged that the discharge of the husband of the petitioner was without following the laid down procedure and, as such, was illegal whereas he should have been allowed to complete 20 years of service to earn service pension.
With the above bare facts, the petitioner seeks quashing of Annexure A2 i.e. letter dated 27.04.2010 declining Family Pension to the petitioner.
Written statement has been filed by the respondents and it is stated that No. 3961499 Late Safaiwala Mali was enrolled as non-combatant on 21.09.1965 at the age of 34 years on contractual engagement for five years which was extendable based on requirement. He was granted permission to continue in service from time to time under the provisions of Para 144 (b) of Regulations for the Army, 1962 in the interest of State. His services were ?liable to be terminated earlier, if not required during the extended period?. Finally, he was discharged from service on 06.12.1981 under item IV of Table annexed to Army Rule 13 (3) after rendering 16 years and 77 days of service including 224 days of non-qualifying service. He was, accordingly, paid terminal benefits, service gratuity, death-cum-retirement gratuity, and provident fund etc. The deceased had preferred a petition dated 06.02.1986 which was suitably replied on 13.02.1986 and he was informed that non-combatant (enrolled) are entitled to pension on completion of 20 years of service as per Regulation 145 of Pension Regulations for the Army, 1961 and those non-combatant (enrolled) who
had opted to be combatised vide Government of India, Ministry of Defence letter dated 31.12.1971 were entitled to pension on completion of 15 years of qualifying service. This fact was also conveyed to the deceased vide letters dated 28.02.1986 and 04.07.1988.
As per certificate dated 30.05.1972 signed by the deceased in presence of the Commanding Officer, 5 DOGRA, which is held in the service record of the deceased, he was unwilling combatisation under the terms and conditions of service as laid down in Government of India, Ministry of Defence letter dated 31.12.1971 (Annexure R8). Consequent to the death of the petitioners husband, the petitioner preferred an appeal dated 15.02.1990 which was suitably replied on 05.04.1990.
Legal notice was served on 08.04.2010 which was replied on 27.04.2010 (Annexure A1 and A2). Under the existing provisions of Regulation 212 of Pension Regulations for the Army, 1961, family pension is granted to those widows whose husbands were in receipt of any kind of pension at the time of their death. As the husband of the petitioner was not in receipt of any pension, she was not entitled to any family pension.
Heard the learned counsel for the parties and perused the documents on record. While arguing the matter, the learned counsel for the petitioner made a strong submission to say that the husband of the petitioner was discharged without any notice and, as such, the discharge was illegal. Hence, he was deprived of completing qualifying service of 20 years for grant of service pension.
In so far as the husband of the petitioner having been enrolled as noncombatant and having declined to be a combatant as per Government of India letter dated 31.12.1971 is concerned, it is not in dispute. Annexure R-8 is clear on that aspect.
Then perusal of Annexure A1 shows the grant of extension in service on conditional basis and the same is reproduced as under:-
PERMISSION FOR CONTINUANCE IN SERVICE No.3961499 Rank Swpr Name MALI Regiment THE DOGRA REGI whose signature signifying his willingness for continuance in service is given below, is recommended for the grant of permission to continue in service for a period of 3 years with effect from 21 Sep 70 under the provisions of Para 144 (b) of Regulations for the Army 1962 in the interest of the state. His service will, however, be liable for termination earlier, if no longer required during the extended service.
I am willing to continue in service for a period of 3 years with effect from 21 Sep 70. I know that my service will be liable for termination earlier, if no longer required during the extended service.
Signature of the individual
The contents of the willingness certificate
of the individual have been translated to him in the language he understands.
Sd/- ( M M L BALI )
Commanding Officer 5 DOGRA
Station : C/O 56 APO
Dated : 06 Jan 70
Certified that the above named individual is medically fit for
further service in terms of Para 144 (b) of Regs of the Army 1962.
Station: C/O 56 AO
Dated: 03 Jan70 Signature of the MO Incharge
(SHAM LAL SHARMA)
FOR OFFICER INCHARGE RECORDS
THE DOGRA REGT
Signature of OIC RECORDS
Station: MEERUT CANTT.
Dated : 20 Jan 70
Similar certificates have been rendered for extension granted on 11.06.1976, 15.09.1979 and 03.01.1981 (Annexure A 2-4).
From the above, it is quite clear that the husband of the petitioner was not in regular employment and was employed on contractual basis and granted periodical extensions of service including the condition that his services were liable to be terminated earlier, if no long required during the extended service. Under these circumstances, the notice for termination of service was in-built into the extensions granted and it cannot be said that the husband of the petitioner was discharged without any notice.
We may also observe that the discharge of the husband of the petitioner on 06.12.1981 was accepted by him till the time of his death and there being no representation or challenge to the discharge, the same had attained finality. The question of family pension to the petitioner would be contingent upon the discharge of the petitioner being under challenge at the relevant time and that not being so, any claim relating to the discharge of the petitioners husband at this belated stage is also clearly barred by limitation.
Having considered all aspects of the matter, we find no merit in the petition and the same is, accordingly, dismissed both on merits and being barred by limitation.