JUDGMENT
S.B. Sinha, C.J.
1. Both these appeals involving similar questions of law were heard together and are being disposed of by this common judgment.
2. However, the facts of the matter are being noticed from LPA 303/2002.
3. The appellant is a widow of one Harbans Singh. He was recruited in the Army on 3rdMarch 1970. As he was invalidation out of service on 19th October 1970 on the recommendation of the medical board, he had been granted disability pension at the rate of Rs. 40/- per month for a period of two years. The said disability pension allegedly was extended from time to time. He was examined by the Resurvey Medical Board for the purpose of extension of the disability pension in the years 1972 and 1977 and the pensionary benefits were extended to him.
4. On and from 23.3.1977, the disability pension, however, was discontinued, inter alia, on the ground that the extent of his disability was less than 20%. He filed several representations. He also preferred an appeal which was dismissed on 16th July 1980. The said order was not questioned by the appellant’s husband. He died on 10th February 1996. The appellant, thereafter, claimed family pension. The said claim was rejected.
5. A writ petition was filed questioning the said order. By reason of the impugned judgment dated 22ndFebruary, 2002, the learned Single Judge dismissed the said writ petition, inter alia, on the ground of delay. In support of the said judgment, the learned Single Judge relied upon a Division Bench judgment of this court in Hans Ram v. Union of India, 1995 (34) DRJ 393. This Letters Patent Appeal arises thereagainst.
6. The learned counsel appearing on behalf of the appellant would submit that the learned Single Judge committed a serious error in dismissing the said writ petition on the ground of delay and laches alone without taking into consideration that as regards claim of pension, the cause of action is a continuous one. Our attention has been drawn to Regulation 173 of the Army Pension Regulations as also unreported judgments of the Punjab and Haryana High Court for the preposition that such pension is payable.
7. The learned Single Judge, as noticed hereinbefore, did not dispose of the matter on merit. The petitioner’s husband, as noticed hereinbefore, despite discontinuance of the payment of pension since 23rdMarch 1977, never approached any court or Tribunal questioning the validity or otherwise of the said decision. The petitioner’s husband, for all intent and purport, accepted the order passed by the concerned authority of the first respondent.
8. The right of the petitioner to get family pension flows out of the right of her husband to receive pension. In the event it is held that the claim of the petitioner’s husband extinguished as he accepted the order of the respondents, we are of the opinion that the petitioner cannot have any cause of action.
9. It may be that in terms of Regulation 173 of the Army Pension Regulations, such disability pension is payable. It is one thing to say that the claim of pension is a continuing one but it is another thing to say that although such claim is rejected long back, the court will entertain a writ petition on the ground that the cause of action therefore is a continuous one. In Hans Ram’s case (supra), Lahoti, J., (as his Lordship then was) speaking for the Division Bench in a similar situation, refused to entertain the writ petition.
10. We see no reason to differ from the same view. In all fairness to the learned counsel for the appellant, we may notice that in a judgment of a learned Single Judge of this court in Smt. Bachan Kanwar v. Union of India and Ors., 1994 III AD (Delhi) 545 being CWP No. 621/1989 disposed of on 13th May 1994, a learned Single Judge of this court held:
“10. Applying the aforesaid regulation to the facts it may be possible to say that the disease which led to the discharge of Ram Singh from army may have arisen in service, because if he had been suffering from any disease earlier to his entry in the military service, he would not have been enrolled in the army. But this alone cannot entitle the petitioner to claim disability pension as according to the above regulation the disability attributable to the military service should be 20% or above. Sitting in writ jurisdiction, we cannot assess the extent of the disability with which Ram Singh was afflicted as a result of the disease contacted by him while in service though there is a strong possibility that the disease was serious in nature and the disability must be above 20% as otherwise he would not have been discharged from service. This, however, is a matter for determination of the respondents.”
11. The learned Single Judge, having regard to the fact that therein also the concerned employee died, refused to entertain the question as to whether such death was due to or accelerated because of the disease which was attributable to military service and consequently, the special family pension was payable in terms of Regulation 213 of the Regulations. However, the learned Judge observed that keeping in view the fat that this was a matter which was to be determined by the respondents, a direction was issued stating:
11. “… Since the pension is not a bounty or gratuitous payment or a matter of grace dependent upon the will and caprice of the employer but is a valuable right and property in the hands of the retiree, the same can surely be claimed at any point of time subject to the rules governing then and also subject to the claim being restricted to three years from the date of the writ petition or demand for payment of the same in case of delay in asking for such payment. It is a continuous obligation of the employer to pay pension to the retiree or family pension to the family members of the deceased retiree in consonance with the rules. The plea of laches normally in such matters cannot be entertained as the obligation of the employer to pay the pension continues till the death of the retiree. Similarly obligation of the employer to pay family pension to the family members of the deceased retiree in accordance with rules continues till the death of the family members entitled to family pension. Therefore if the right to family pension exists in favor of the petitioner such a right will ensure till her death. The matters covered by the writ petition lie in the domain of the respondents for their determination. Therefore the petition filed before by them should have been decided.”
12. In the instant case, no claim for family pension in regard to Regulation 213 has been made.
13. Furthermore, the learned Judge in the said judgment itself observed that the plea of laches normally in such matters cannot be entertained but in the fact situation of the instant case and particularly having regard to the Division Bench decision, as referred to hereinbefore, the writ petition was rightly dismissed and we are of the opinion that the impugned judgment cannot be faulted.
14. For the reasons afore-mentioned, there is no merit in these Letter Patent Appeals which are accordingly dismissed but in the facts and circumstances of the cases, there shall be no order as to costs.