Rajasthan High Court - Jodhpur
Suman Kanwar vs . State Of Rajasthan & Ors. on 25 May, 2015
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
[1]
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:::
S.B. Civil Writ Petition No.14824/2013
Suman Kanwar Vs. State of Rajasthan & Ors.
Date of order: 25.5.2015
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
Mr. Vinay Kothari, for the petitioner.
Mr. Suniel Purohit, for the respondent.
<><><> The instant writ petition has been filed by the petitioner for seeking direction to the respondents to grant dearness allowance as applicable from time to time upon family pension.
As per the facts of the case, the petitioner's husband late Datar Singh was appointed on compassionate ground in Rajasthan Rajaya Vidhyut Prasaran Nigam Ltd. on account of death of his father on the post of Consumer Complaint Clerk vide order dated 15.3.1996. Late Sh. Datar Singh died while in service on 10.7.2011. The petitioner wife of late Datar Singh and her three children namely Bhawana, Parikshit and Prashant are living together. After the death of Datar Singh, the petitioner became entitled for the family pension, therefore, family pension was allowed to the petitioner vide payment order dated 11.7.2011, without dearness allowance, which is essential part of family pension.
[2]
Being aggrieved with non-payment of dearness allowance, number of representations were filed by the petitioner, but respondents did not grant benefit of dearness allowance. In this writ petition the petitioner is seeking direction to the respondents to pay dearness allowance upon the family pension.
The learned counsel for the petitioner submits that as per definition of "family" provided under Rule 66 of the Rajasthan Pension Rules, 1996 (hereinafter referred to as the Rules of 1996 for short), all the members of family were dependent upon late Datar Singh, therefore, the respondents cannot deny dearness allowance on the ground that wife of late Datar Singh was in service when he died. In support of his argument, the learned counsel for the petitioner invited attention of this Court towards the judgment of the Hon'ble Supreme Court in the case of HSDEB ^ Ors. Vs. Azad Kaur reported in (2000) 2 SCC 227 in which it has been held by the Hon'ble Supreme court that if wife or any other family member have not secured any job on compassionate ground on account of death of deceased employee then the dearness allowance on family pension could not be withheld and in present case also none of the family member obtained appointment on compassionate ground, therefore, direction may be issued to pay dearness allowance upon family pension.
In the reply it is submitted by the respondents that petitioner Smt. Suman Kanwar W/o lat Sh. Datar Singh is also government servant working in the Education Department on the post of Teacher Grade-III which is evident from the affidavit furnished by her, therefore, as per the rule 77 of the Rules of 1996, the payment of dearness relief cannot be granted when [3] pensioner including family pensioner is employee/reemployed in a Central/State Government department and further it is also provided in sub-rule (3) of Rule 77 of the Rules of 1996 that dearness allowance on family pension shall be suspended during the period of re-employment or employment of the pensioner either before grant of pension or after grant of pension, therefore, the petitioner is not entitled to get dearness allowance. In support of the contention of the learned counsel appearing for the respondent invited attention of this court towards the judgment of this Court delivered in the case of Madhu Vyas (Smt.) Vs. State of Rajasthan & Ors (SBCWP No.5181/2009), decided on 17.4.2012 which is based upon earlier judgment in the case of Ratani Devi Vs. State of Rajasthan & anr. (SBCWP NO.6979/1993), decided on 2.7.1997 in which the coordinate bench this Court held that dearness allowance could not be paid twice over, alongwith family pension since petitioner is getting dearness relief alongwith her present salary on the basis of her appointment on compassionate ground. In view of the above, it is submitted that the instant writ petition may kindly be dismissed.
In rejoinder, the learned counsel for the petitioner submits that rule 77 of the Rules of 1996 will not come in the way of entitlement of dearness allowance because none of the family member obtained appointment on compassionate ground after death of Datar Singh and petitioner was already in service when her husband Datar Singh died. Therefore, in view of the judgment of the Hon'ble Supreme Court in the case of HSEB (supra), the petitioner is very much entitled for dearness allowance because on the date of death of Datar Singh, the [4] petitioner was already in service in Education Department and family pension was allowed due to death of Datar Singh to whole of the family.
After hearing learned counsel for the parties I have perused the rule 77 of the Rules of 1996, which read as under:
"Rule 77- Dearness Relief on Pension/Family Pension:
(i) Relief against price rise may be granted to the pensioners and family pensioners in the form of Dearness Relief at such rates and subject to such conditions as the Government may specify from time to time.
(ii) The payment of Dearness Relief will remain suspended when the petitioner (including family pensioner) is employed/re-employed in a Central/State Government Department or employed/re-employed/permanently absorbed in a Central or a State Government Company, Corporation, Undertaking or autonomous body/statutory body, local body, cooperative society, institution etc. if it is wholly or substantially owned or controlled by the Central/State Government or in which the Government has substantial financial interest or receiving Grand-in-Aid from the Government to meet its administrative expenditure or in Reserve Bank of India or in a Public Sector Bank or in GIC/LIC etc.
(iii) Dearness Relief only family pension shall remain suspended during the period of re-
employment or employment of the pensioner, either before grant of pension or after grant of pension.
(iv) The State Government employees who get permanently absorbed in terms of Rule 33 and opt from lump sum payment in lieu of pro rata monthly pension in terms of Rule 34, shall not be eligible for Dearness Relief.
(v) In the case of pensioners who are in receipt of more than one pension (including family pension) the Dearness Relief will be calculated on the total of all pensions taken together." [5] Upon perusal of aforesaid rule it is abundantly clear that the said rule is applicable in the event of getting employment on compassionate ground or re-employment of the pensioner but in the present case the petitioner-wife was already in service before death of her husband Datar Singh, therefore, obviously rule 77 will not come in the way of granting dearness allowance upon family pension. It is also very material to mention here that upon retirement if an employee serving and gets regular pension and his wife remain in service then in that eventuality, there is no provision in the rules to suspend the dearness allowance upon the amount of pension of the retired employee, then rule 77 can be made applicable to curtail the benefit of dearness allowance to the family of deceased employee. This court feels that to deny dearness allowance hyper technical ground has been taken in the reply by the respondents, therefore, the claim of dearness allowance on family pension of the petitioner is justified. The above opinion of the Court is further supported by the judgment of the Hon'ble Supreme Court in the case of HSEB (supra) in which following adjudication is made by the Hon'ble Supreme Court in para no.6 and 7, which reads as under:-
6. The appellants have relied upon a letter dated March 20, 1980 from the Secretary to the Gov-
ernment, Finance Department, Government of Haryana circulated to all the Heads of the De- partments under which it is clarified that the payment of ad hoc relief on pension shall remain suspended when a person in receipt of family pension/extraordinary pension is employed/re- employed. The appellants contend that whenev- er a recipient of a family pension is employed, the ad hoc relief on pension shall not be granted. In our view, this is not a correct interpretation of the letter of March 20, 1980. As the ratio of the [6] judgment of this Court in Union of India v. G. Va- sudevan Pillay (supra) shows, the principle on which ad hoc relief is withheld, is that if a recipi- ent of a family pension has received an addition- al benefit in the form of either re-employment or an employment on compassionate grounds on account of the death of the employee, the need to provide another cushion in the form of ad hoc relief is not there. The word "employed" used in the letter of March 20, 1980 in that context can only refer to the kind of employment which is se- cured by the widow or a family member on ac-
count of or in the context of the death of the em- ployee in respect of whom family pension is be- ing paid. It can have no reference to any inde- pendent employment or any other independent source of livelihood which the family members may possess. The mere fact that the widow is in- dependently employed as a teacher elsewhere even prior to the death of her husband, cannot deprive the family of the benefit of the ad hoc relief on family pension.
7. Our attention is drawn to a decision of the Di- vision Bench of the Punjab & Haryana High Court in the case of Swaran Kaur v. State of Punjab 1997 1 RSJ 325 (P&H-DB) where the High Court, after ascertaining that the petitioner therein had not secured any job on compassionate grounds on account of the death of her husband, nor had any family member done so, held that dearness allowance on family pension could not be with- held. It said that the fact that the widow was in service at the time when her husband died would not deprive her of dearness allowance on family pension when the employment was not on compassionate grounds. We, therefore, agree with the reasoning and conclusion reached by the High Court in the impugned judgment."
The case of Madhu Vyas (supra) cited by the respondent is not applicable in the present case because petitioner Madhu Vyas was provided appointment after death of her husband on compassionate ground. In view of the above, I hold that denial of dearness allowance to the petitioner upon family pension is contrary to the judgment of the Hon'ble Supreme Court so also [7] against the principles of natural justice.
Consequently, on the basis of above discussion, the writ petition is allowed. The respondents are directed to pay dearness allowance upon the family pension to the petitioner sanctioned in favour of the family of the deceased employee Datar Singh after his death. The compliance of the order shall be made within a period of 2 months from the date of receiving certified copy of this order.
(GOPAL KRISHAN VYAS),J.
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