Non-Reportable  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal Nos.7459-7460 of 2010

KANCHAN DUA                                .... Appellant(s) Versus

UNION OF INDIA & ANR.                                               …. Respondent (s)

J U D G M E N T

L. NAGESWARA RAO, J.

1. Sanction was accorded by the President of India for the

modifications to the Rules/Regulations concerning pensionary

benefits  to  the  Armed  Forces  personnel  on  31.01.2001.

Pensionary  benefits  upon  the  death  or  disability  in

attributable/aggravated cases is dealt  with in Part  II  thereof.

Category ‘E’ of Part II is as follows:

Category ‘E’

Death or disability arising as a result of: -

a) Enemy action in international war.

b) Action  during  deployment  with  a  peace  keeping

mission abroad.  

c) Border skirmishes.  

d) During laying or clearance of mines including enemy

mines as also minesweeping Operations.   

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e) On account of accidental  explosions of  mines while

laying Operationally  oriented mine-field or  lifting or

negotiating  mine-field  laid  by  the  enemy  or  own

forces in Operational areas near international borders

or the line of control.  

f) War  like  situations,  including  cases  which  are

attributable to/aggravated by: -

i. Extremist acts, exploding mines etc. while on way

to an Operational area.

ii. Battle  inoculation  training  exercises  or

demonstration with live ammunition.

iii. Kidnapping  by  extremists  while  on  Operational

duty.  

g) An  act  of  violence/attack  by  extremists,  anti-social

elements etc. while on Operational duty.  

h) Action against  extremists,  anti-social  elements,  etc.

death/disability  while  employed  in  the  aid  of  civil

power  in  quelling  agitation,  riots  or  revolt  by

demonstrators will be covered under this category.   

i) Operations specially notified by the Government from

time to time.  

2.  The  eligible  members  of  the  family  of  Armed  Forces

personnel  mentioned  in  Category  ‘E’  shall  be  entitled  to

Liberalised Family Pension in case of his death.   The scope of

the above provision falls for our consideration in these appeals.

3. The husband of the Appellant was commissioned in the

Army  in  October,  1968.   In  1990,  he  was  promoted  as  a

Colonel.    When he was posted as the Commandant of  890

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Animal Transport Battalion in Nowshera, Jammu and Kashmir,

he  was  moved  to  Rajouri  for  Operational  requirement  in

Operation Ran Vijay at the location of HQ 25 Infantry Division.

In the morning of 25.01.1992, he was found dead in his room.

The cause of death was found to be sudden cardiac failure due

to high stress and strain.  The Appellant was initially granted

ordinary family pension and, later special family pension.   She

made a representation for grant of Liberalised Family Pension.

The Appellant complained that the entry in the service record

of her husband was wrongfully altered from “Physical casualty

under Operation Rakshak” to “Physical casualty”.  As there was

no  response,  she  filed  a  Writ  Petition  in  the  High  Court  of

Punjab and Haryana at  Chandigarh seeking alteration of  the

entry  in  the  service  record  of  her  husband  from  “Physical

casualty”  to  “Physical  casualty  under  Operation  Rakshak”.

The  High  Court  allowed  the  Writ  Petition  and  directed  the

alteration of the service record of the Appellant’s husband to

“physical  casualty  under  Operation Rakshak”.   Reliance was

placed by the High Court on the findings recorded in the Court

of  Inquiry  that  the  death  of  the  Appellant’s  husband  was

attributable to bona fide military service in the field covered

under Operation Rakshak.  The High Court further directed the

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Respondents to consider grant of Liberalised Family Pension to

the Appellant.     

4. After  altering  the  entry  in  the  service  record  of  the

Appellant’s  husband  from  “physical  casualty”  to  “physical

casualty  under  Operation  Rakshak”,  the  Respondents  found

that  the  Appellant  was  not  entitled  for  Liberalised  Family

Pension.  Aggrieved by the rejection of the request for payment

of  Liberalised  Family  Pension,  the  Appellant  approached  the

High Court of Punjab and Haryana by filing a Writ Petition.   The

said Writ Petition was transferred to the Armed Forces Tribunal,

Regional Bench, Chandigarh.   Being of the opinion that cardiac

failure  does  not  fall  under  Category  ‘E’  of  Part  II  of  the

Instructions issued by the Government of India on 31.01.2001,

the  Tribunal  dismissed  the  Transferred  Application  of  the

Appellant.   The  legality  of  the  judgment  of  the  Tribunal  is

assailed in these appeals.   

5. It will be relevant to refer to the relevant Instructions to

understand the scope of the modifications made to the pension

Rules/Regulations governing the Armed Forces personnel from

time to time.  By a letter dated 24.02.1972, the Chiefs of the

Army,  Navy  and  the  Air  Staff  were  informed  about

modifications to the then existing Rules and orders relating to

the grant  of  special  family  pensionary  awards  and disability

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pension.  Liberalised Family Pension was announced in favour

of the families of the Armed Forces personnel killed in action or

to  those  who  have  been  disabled  on  account  of  injuries

sustained in the operations against Pakistan, commencing from

03.12.1971.  The  awards  sanctioned therein  were also  made

applicable  to  personnel  who  were  killed  in  action  or  were

disabled on account of injuries sustained in the international

wars of 1965 (including Kutch and Kargil Operations), 1962 and

1947-1948  (Kashmir  Operations),  as  well  as  the  Goa  and

Hyderabad  Operations.   The  Liberalised  Family  Pension  was

further extended to personnel who died or were disabled as a

result  of  fighting in war-like Operations or border skirmishes

either with Pakistan on the ceasefire line or any other country

and those who fought against armed hostiles like Nagas and

Mizos  and  during  fighting  in  service  with  peace  keeping

missions abroad on or after 15th August, 1947. A decision was

taken pursuant to the recommendations of the 4th Central Pay

Commission regarding pensionary benefits to the Armed Forces

personnel  on  30.10.1987.   Part  IV  of  the  letter  dated  30th

October, 1987 deals with Liberalized Pensionary Awards (battle

casualty and such other cases as may be specially notified by

the Government).  The Government of India issued Instructions

on 31.01.2001 for implementation of the recommendations of

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the 5th Central  Pay  Commission  regarding  Liberalised  Family

Pension for the Armed Forces personnel retiring, invaliding or

dying in harness on or after 01.01.1996.  There was a broad

division of cases arising out of attributable/aggravated causes

into  five  categories.   Operations  specially  notified  by  the

Government from time to time were included in Category ‘E’.

The  eligible  member  of  the  family  of  the  Armed  Forces

personnel  falling  in  Category  ‘E’  was  entitled  to  Liberalised

Family  Pension  in  case  of  his  death  or  disability.   As  the

contention of  the Appellant is  that her  husband was part of

Operation Rakshak which was notified by the Government of

India,  it  is  necessary  to  refer  to  the  notification  dated

07.05.1990 for  assessing  her  eligibility  to  Liberalised  Family

Pension.  Certain concessions were made to the Armed Forces

personnel who were deployed in Operation Rakshak by the said

notification.  Apart from others, Liberalized Pensionary Awards,

subject to the conditions laid down in para I of the letter dated

24.02.1972 were made applicable to  personnel  in  Operation

Rakshak.  It is important to note that troops who were engaged

in active operations against militants were held to be entitled

to the field service concessions which were applicable to the

location.   In  addition,  those  troops  which  were  engaged  in

active operation against militants were held to be entitled to

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Liberalized Pensionary Awards,  subject  to the conditions laid

down in the letter dated 24.02.1972.

6. Mrs. V. Mohana, learned Senior Counsel was appointed as

Amicus Curiae to appear for the Appellant.  She submitted that

all  the  Army  personnel  working  in  the  State  of  Jammu and

Kashmir  were  declared  to  be  on  active  service  as  per  the

notification dated 05.09.1977. She relied upon Section 3 and 9

of the Army Act, 1950 to submit that the Appellant’s husband

was in active service at the time of his death.   Though the

Appellant’s  husband  was  working  as  Commandant  of  the

Animal  Transport  Battalion,  his  death due to sudden cardiac

failure  took  place  when  he  was  in  active  service.    She

emphasized  that  the  Appellant’s  husband  died  during  his

service in Operation Rakshak which was a notified Operation

mentioned in Category ‘E’ of para 4.1 of the Instructions dated

30.01.2001.  She submitted that according to the Instructions

that were issued on 31.01.2001,  the Appellant is  entitled to

Liberalised Family Pension as per para 6 therein.   She relied

upon  judgments  of  the  High  Court  of  Delhi,  High  Court  of

Jammu and Kashmir and the High Court of Punjab and Haryana

in support of her submission that the family members of the

Armed Forces personnel who died during their service in the

notified Operations are entitled to Liberalised Family Pension.   

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7. Ms.  Madhavi  Divan,  learned Additional  Solicitor  General

contended  that  Liberalised  Family  Pension  is  associated

exclusively with pension granted in respect of death or injury

caused in live action.   Placing reliance on a judgment of this

Court in  Brij Mohan Lal v. Union of India1, she submitted

that grant of Liberalised Family Pension for death by natural

causes would diminish the sheen of sacrifice of the servicemen

who were killed in live action.  The death of the Appellant’s

husband  due  to  sudden  cardiac  failure  would  fall  under

Category ‘B’ of the Instructions issued on 31.01.2001 and the

applicable Special  Family Pension was rightly granted to the

Appellant.   The very genesis of the Liberalised Family Pension

highlighted  by  the  learned  Additional  Solicitor  General  was

through a communication dated 24.02.1972 which was issued

for the purpose of acknowledging the sacrifice of persons who

were killed in live action.  

8. The basis  of  the  claim of  the  Appellant  for  Liberalised

Family Pension flows from the Instructions dated 31.01.2001.

There  is  no  doubt  that  Operation  Rakshak  is  a  notified

Operation falling under Clause 9 of Category ‘E’ thereof.   There

is  also  no  dispute  that  those  covered  in  Category  ‘E’  are

entitled  for  Liberalised  Family  Pension.   However,  the

notification issued by the Government extending concessions 1 2012 (6) SCC 502

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to the Armed Forces personnel deployed in Operation Rakshak

provides that Liberalized Pensionary Awards are extended only

to those troops in active Operations against militants in terms

of para I of the letter dated 24.02.1972.  A bare perusal of para

I  of  letter  dated  24.02.1972  would  make  it  clear  that  only

personnel killed or disabled on account of injuries in action are

eligible for Liberalized Pensionary Awards. Therefore, we are in

agreement  with  the  Respondent  that  the  Appellant  is  not

entitled for Liberalised Family Pension.   

9. We  have  examined  the  judgments  of  the  High  Courts

cited  by  Mrs.  V.  Mohana,  learned  Amicus  Curiae  in  Manju

Tewari v. Union of India2, Preeti Sidhu v. Union of India3,

K.J.S.  Buttar  v.  Union  of  India4,  Major  Arvind  Kumar

Suhag  v.  Union  of  India5,  J.  P  Bhardwaj  v.  Union  of

India6, Radhika Devi v. Union of India7 and Pushpa Devi

v.  State of  Haryana8.  Though  relief  of  Liberalised  Family

Pension was granted by the High Courts in those judgments,

the  High  Courts  have  not  examined  the  letter  dated

24.02.1972 and the notification dated 07.05.1990.  Therefore,

no relief can be given to the appellant on the basis of the said

2 2005 (3) SCT 458 3 2010 (28) SCT 400 4 2011 (11) SCC 429 5 2013 (15) SCT 543 6 WP (C) No.348 of 2012 Delhi HC (DB) 7 2014 (10) RCR (C) 3136 (DB) 8 2015(2) SCT 170

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judgments.   The  judgments  relied  upon by  Mrs.  V.  Mohana,

leaned  Amicus  Curiae  have  to  be  considered  to  have  been

determined on the particular facts of those cases.   

10. Mrs.  Mohana  relied  upon  the  recommendations  of  a

Committee of Experts, appointed by the Ministry of Defence,

Government of  India to review matters pertaining to service

and pension. Certain recommendations made in the said report

are in  favour of  the Appellant.   It  was observed in the said

report that persons disabled or dying in an Operational area

due to illnesses induced by harsh climatic conditions of such an

area or due to an accident while patrolling in such an area is no

less important a sacrifice than another dying by a bullet in the

same  locale.    After  obtaining  Instructions,  the  learned

Additional  Solicitor  General  submitted  a  note  according  to

which  the  said  recommendation  of  the  Committee  was  not

accepted by the Government.  Hence, we cannot rule in favour

of the Appellant on the basis of the recommendations of the

Committee of Experts.

11. Before  parting,  we  appreciate  the  valuable  assistance

rendered to us by Mrs. V. Mohana, learned Amicus Curiae.   

12. For  the  aforementioned  reasons,  the  appeals  are

dismissed.                 

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                   ..…................................J                                      [L. NAGESWARA RAO]

                              ..…................................J                                       [HEMANT GUPTA]

New Delhi, September 23, 2019.

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Non-Reportable  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal Nos.  7525-7526 of 2019 (Arising out of SLP (C) Nos.8588-8589 of 2014)

SMT. RADHIKA DEVI .... Appellant(s)

Versus  

UNION OF INDIA & OTHERS.

…. Respondent (s) W I T H  

Civil Appeal No. 7527  of 2019 (Arising out of SLP (C) No.26105 of 2015)

J U D G M E N T

L. NAGESWARA RAO, J.

Leave granted.  

13. For the sake of convenience, the parties are referred to

as they are arrayed in Civil Appeal Nos.7525-7526 of 2019

arising out of SLP (C) Nos.8588-8589 of 2014 filed by Smt.

Radhika Devi.  

14. Naib Subedar Umed Singh was enrolled in the Army on

13.03.1976.   On  19.12.2001,  he  was  posted  at  the

International Border in Operation Parakram.  While taking part

in  the  fire  fighting  drill  activities  at  about  4.00  pm  on

21.05.2002, he collapsed and was declared dead.   According

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to the death certificate, he died due to Ischemic heart disease

leading to cardiac arrhythmia (ventricular fibrillation).

15. The Respondents granted Special  Family Pension to the

Appellant. Unsatisfied with the grant of Special Family Pension

instead of the Liberalised Family Pension, the Appellant filed

O.A. No.167 of 2011 before the Armed Forces Tribunal, Principal

Branch,  New  Delhi  (for  short  “the  Tribunal”).   The  Tribunal

dismissed the O.A. on 23.11.2011, holding that the Appellant

was  not  entitled  to  either  Liberalised  Family  Pension  or  ex-

gratia payment.   Aggrieved by the order of the Tribunal, the

Appellant filed a Writ Petition in the High Court of Delhi, which

was allowed.   The High Court found that the Appellant was

entitled to Liberalised Family Pension and ex-gratia payment of

Rs.5 lakhs.    The Appellant challenged the judgment of the

High Court to the extent that ex-gratia payment of Rs.7.5 lakhs

was not awarded in her  favour.    The Respondent,  Union of

India has also filed an appeal questioning the judgment of the

High Court in so far as it  relates to the declaration that the

Appellant is entitled to the Liberalised Family Pension and the

award of Rs.5 lakhs as ex-gratia amount.   

16. The claim of Liberalised Family Pension by the Appellant is

on the basis of the Instructions issued by the Government of

India on 31.01.2001.  As per the said Instructions, a member of

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the  family  of  a  deceased  Armed  Forces  Personnel  whilst

employed in an operation notified by the Government of India

would be entitled to Liberalised Family Pension.  In  Kanchan

Dua v.  Union of India & Anr.9, we have discussed in detail

the modifications issued to the rules and regulations granting

beneficiary awards to the family members of the Armed Forces

Personnel who died in action by the letter dated 24.02.1972.

We have also carefully examined the scope of the entitlement

of Liberalised Family Pension in case of the death of persons

employed  in  the  operations  notified  by  the  Government  of

India.  After a close scrutiny of the relevant circulars, we have

held  that  Liberalised  Family  Pension  in  accordance  with  the

Instructions issued by the Government of India is payable only

to the family members of Armed Forces personnel who have

died in action.   

17. In  view  of  the  death  of  the  Appellant  due  to  cardiac

failure,  the  Appellant  is  not  entitled  to  Liberalised  Family

Pension.   In  so  far  as  the  payment  of  ex-gratia  amount/

compensation  is  concerned,  we  are  convinced  that  the

Appellant is entitled to Rs.5 lakhs as ex-gratia compensation in

accordance  with  the  Instructions  dated  22.09.1998.    The

special benefits that were granted by the Government of India

for  ex-gratia  payment  is  payable  in  all  cases  of  death  and 9 Civil Appeal Nos.7459-7460 of 2010

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disability in service to the family members of the Armed Forces

Personnel  who  died  in  harness.    As  the  death  of  the

Appellant’s  husband  was  not  during  enemy  action  in

international  war  or  border  skirmishes  and  action  against

militants,  terrorists,  extremists  etc.,  the  Appellant  is  not

entitled to Rs.7.5 Lakhs as claimed by her.  

18. We set aside the judgment of the High Court declaring

that  the Appellant  is  entitled  for  Liberalised  Family  Pension.

She is entitled only for the Special Family Pension.  Further, we

uphold the judgment of the High Court that the Appellant is

entitled for ex-gratia payment of Rs.5 lakhs.  With the above

observations, the Appeals are disposed of, accordingly.   

                  ..…................................J.                                           [L. NAGESWARA RAO]

                                      ..…................................J.                                           [HEMANT GUPTA]

New Delhi, September  23,  2019.  

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