Himachal Pradesh High Court
State Of H.P. & Ors vs Indu Devi on 29 November, 2022
Bench: Tarlok Singh Chauhan, Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
.
RPT No. 1/2020
Decided on: 29.11.2022
State of H.P. & ors. .....Petitioners
Versus
Indu Devi ....Respondent
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Ms. Justice Virender Singh, Judge.
Whether approved for reporting?1No
For the Petitioners: Mr. Ashok Sharma, A.G. with
Mr. Rajinder Dogra, Sr. Addl.
A.G., Mr. Shiv Pal Manhans,
Mr. Vinod Thakur, Addl. A.Gs. &
Mr. Bhupinder Thakur, Dy.A.G.
For the Respondent: Mr. Devender K. Sharma,
Advocate.
_________________________________________________________________
Justice Tarlok Singh Chauhan, Judge (oral)
The instant review petition seeks review of the judgment dated 16.12.2016 passed by the erstwhile H.P. Administrative Tribunal, whereby it directed the petitioners-
State herein to release due and admissible family pension to the respondent herein, Mrs. Indu Devi, despite the objection of the petitioners that since the respondent was already in 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 01/12/2022 20:31:44 :::CIS 2receipt of family pension of her deceased husband, therefore, she was not eligible for another family pension as per Rule .
54 (13-B) of the CCS Pension Rules 1972.
2 In order to appreciate the controversy, certain minimal facts need to be noticed. Mr. Gauri Shankar Sharma, late husband of the respondent was employed in the department of Elementary Education and after his death, the income certificate Accountant General of the State of H.P. authorized family pension in favour of the respondent with condition issued by the competent authority and that other requisite documents may be obtained before the disbursement of the family pension.
3 The respondent produced income certificate before the District Treasury Officer, wherein annual income was shown as Rs. 1,33,500/-. The income so reflected was more than the one as laid down in Rule 54(6) of the Rules, which reads as under:-
"the parents shall be deemed to be dependent on the govt. servant if their combined income is less than the minimum family pension i.e. Rs. 3500/- along with dearness relief thereon"::: Downloaded on - 01/12/2022 20:31:44 :::CIS 3
4 According to the petitioners, the respondent being in receipt of family pension of her deceased husband was not .
eligible for another family pension as per Rule 54(13-B) of the CCS Pension Rules 1972, which provides that "family pension under this Rule shall not be granted to a person who is already in receipt of family pension or is eligible therefore under any other rule of the Central Govt. or State Govt. etc."
5However, the stand of the petitioners was opposed by the respondent by contending that the Rule 54 (13-B) of the the CCS Pension Rules 1972 has in fact been omitted vide notification dated 27.12.2012 and Rule 54 (10-A) (a) thereof has been inserted on 8.6.2011 and thus, these rules have no application to the case of the respondent since son of the respondent died on 28.1.2003 and at that time, these Rules were not existing.
6 We have heard the learned counsel for the parties and have also gone through the material placed on record.
7 It is not in dispute that after attainment of the Statehood, as State of Himachal Pradesh on 25.01.1971, the State Government has absolute powers to make its own service rules for its employees and pensioners under Proviso to Article 309 of the Constitution of India. Besides, pension to ::: Downloaded on - 01/12/2022 20:31:44 :::CIS 4 the State Government employees is the subject matter of the State Government as per Entry 42 of list II of the 7th .
Schedule of the Constitution of India.
8 The State Government has adopted the Central Civil Services (Pension) Rules, 1972 vide Notification No. 2- 4/71-Fin (Reg)-II dated 30.03.1974. However, subsequent amendments made under CCS (Pension) Rules, 1972, by the Government of India are within the Government to amend, modify and adopt these rules in r power accordance with the suitability and feasibility of the same of State with respect to the State of Himachal Pradesh, its ability to bear financial burden of such changes.
9 The provision of Rule 54 (13-B) of CCS (Pension)Rules, 1972 omitted by Government of India in the year 2012 was ipso facto not applicable in the State until the same was adopted/modified by the State Government.
Therefore, provision of rule 54(13-B) continued to be in force till the year 2014 when the State Government re-considered the provision of Rule 54(13), in view of omission made by the Government of India.
10 The State Government after reconsideration of the provision, has consciously decided to continue with the ::: Downloaded on - 01/12/2022 20:31:44 :::CIS 5 existing provision by insertion of sub-rule (13-B) below Rule 54 vide Notification No. Fin(Pen) A (3)-1/09-Part-III dated .
19th February, 2014. Therefore, the provision of sub rule 13(b) below Rule 54 of CCS(Pension)Rules, 1972 remained in force during the relevant period, in spite of omission made by the Government of India in the said Rules.
11 In addition to above, it would be noticed that the eligibility criteria for grant of family pension to the parents under Rule 54(6)(iv) of CCS (Pension) Rules, 1972, is that parents should be wholly dependent on the Government servant immediately before the death of the Government servant and as as per explanation clause, the parents shall be deemed to be dependent on the Government servant if their combined income is less than the minimum family pension under sub-rule (2) of this rule and the dearness relief admissible thereon.
12 Here, in the instant case, the respondent, on the date of death of her late Son Mr. Hardev Ram, on 28th January, 2003, was already getting family pension of an amount of Rs. 1345/- plus dearness relief (DR), per month, which is more than minimum pension Rs. 1310/- plus DR ::: Downloaded on - 01/12/2022 20:31:44 :::CIS 6 per month, in respect of her deceased husband late Mr. Gauri Shankar.
.
13 Moreover, the provision of sub rule 13-B of Rule 54 of CCS(Pension)Rules, 1972, were in existence in the year 2003, in Government of India as well as in the State of Himachal Pradesh, when the respondent claimed family pension in respect of her late Son. Therefore, she is not eligible for grant of another family pension in respect of her late son as she was not wholly dependent on him at the time of death.
14 In view of the aforesaid discussions, we find merit in the instant petition and the order sought to be reviewed herein is accordingly quashed and set aside. Consequently, the original application filed by the respondent is dismissed.
15. The instant petition is allowed in the aforesaid terms.
(Tarlok Singh Chauhan) Judge (Virender Singh) Judge 29th November, 2022.
(Pankaj) ::: Downloaded on - 01/12/2022 20:31:44 :::CIS