Himachal Pradesh High Court
Smt. Shakuntala Devi vs State Of Himachal Pradesh And Ors on 6 December, 2023
Bench: Vivek Singh Thakur, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
LPA No. 197 of 2023
Reserved on: 28.11.2023
Date of Decision: 06.12.2023
_____________________________________________________________________
Smt. Shakuntala Devi
.........Appellant
Versus
State of Himachal Pradesh and Ors.
of
.......Respondents
Coram
Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Hon'ble Mr. Justice Sandeep Sharma, Judge.
rt
Whether approved for reporting? Yes.
For the Appellant: Mr. Gaurav Sharma and Mr. Diwan Singh Negi,
Advocates.
For the Respondents: Mr. Rajesh Mandhotra, Additional Advocate
General.
___________________________________________________________________________
Sandeep Sharma, J.
Instant Letters Patent Appeal, lays challenge to judgment dated 08.08.2023 passed by learned Single Judge in CWP No. 7495 of 2021, titled as Shakuntla Devi Vs. State of Himachal Pradesh, whereby prayer made on behalf of the appellant/ petitioner to quash and set aside clarification dated 23.01.2017 and recovery notice dated 23.10.2021 came to be dismissed.
2. For having bird's eye view, facts which may be relevant for adjudication of the case at hand are that appellant/petitioner's husband ::: Downloaded on - 07/12/2023 20:32:38 :::CIS 2 Sh. Jagiri Lal, who was serving as electrician in the Irrigation & Public .
Health Department at I&PH Division Paonta Sahib, District Sirmour, Himachal Pradesh, died in harness on 11.03.2001, as a consequence thereof, his son namely Sh. Yashwant Singh came to be offered employment on compassionate grounds on 23.12.2004 against the post of Beldar on of daily wage basis. Subsequently, on 04.06.2012, family pension also came to be sanctioned in favour of the appellant/petitioner-Shakuntala Devi w.e.f 12.03.2001 i.e. from the date of death of her husband and she also received rt Dearness Relief on family pension w.e.f. 12.3.2001 to December, 2018.
3. Petitioner's son, who was given compassionate appointment as daily wager on daily wage basis in year 2004 was regularized vide order dated 17.09.2012, as a result of which, he also became entitled to Dearness Relief alongwith the pay. After coming to know about the factum of regularization of son of the appellant/petitioner against the post of Beldar, respondents stopped releasing Dearness Relief on the family pension being received by the appellant/petitioner. Since appellant/petitioner was not paid Dearness Relief w.e.f. January, 2019 and respondents sent a notice to the appellant/petitioner on 23.10.2021 for recovery of Dearness Relief paid to her w.e.f 17.09.2012 till 31.12.2018, she was compelled to approach this Court in CWP No. 7495 of 2021, praying therein for following main relief:
::: Downloaded on - 07/12/2023 20:32:38 :::CIS 3"a). A writ of Certiorari may kindly be issued to respondents 1 to 3 .
directing them to produce the entire record of the case and the clarification dated 23.01.2017 (Annexure P-6) and the same may kindly be quashed being arbitrary and unreasonable and further the impugned recovery dated 23.10.2021 (Annexure P-8), may kindly be quashed and set aside."
4. Pursuant to notices issued in the aforesaid writ petition, of respondents filed reply thereby justifying their action to stop Dearness Relief on family pension on the ground that since son of the rt appellant/petitioner was given compassionate appointment after the death of husband of the appellant/petitioner against the post of Beldar and he is in receipt of Dearness Relief/Allowance, she is not entitled to Dearness Relief on family pension in terms of clarification dated 23.01.2017 issued by the Additional Director, Treasuries, Accounts and Lotteries, H.P., wherein it has been categorically provided that Dearness Relief on family pension shall not be admissible to the spouse where other member i.e. son/daughter of the deceased Government servant is simultaneously given an appointment on compassionate grounds in Government Department without any competition.
5. Having taken note of aforesaid pleadings adduced on record by the respective parties, learned Single Judge dismissed the writ petition having been filed by the appellant/ petitioner concluding that respondents ::: Downloaded on - 07/12/2023 20:32:38 :::CIS 4 were justified in ordering recovery of Dearness Relief paid to the petitioner .
w.e.f. 17.09.2012 to December, 2018 as her son was given appointment on compassionate grounds against the post of Beldar and he, after regularization against the post in question, is in receipt of Dearness Relief alongwith salary. In the aforesaid background, appellant/ petitioner has of approached this Court in the instant proceedings, praying therein to set aside aforesaid judgment passed by learned Single Judge
6. Precisely, the grouse of the appellant/petitioner, as has been rt highlighted in the appeal and further canvassed by Mr. Gaurav Sharma, Advocate, is that once it is not in dispute that son of the appellant/petitioner came to be appointed against the post of Clerk under 20% quota provided under Limited Direct Recruitment to the category of regular Class-IV employee, there is no justification in withdrawing the benefit of Dearness Relief on family pension payable to the appellant/petitioner, who otherwise being widow of the deceased employee is entitled to family pension. Mr. Sharma, while making this court peruse communication dated 23.1.2017 vehemently argued that Dearness Relief on family pension shall not be admissible to the spouse where other member i.e. son/daughter of the deceased Government servant is simultaneously given an appointment on compassionate grounds in Government Department without any competition. He further submitted ::: Downloaded on - 07/12/2023 20:32:38 :::CIS 5 that since son of the appellant/petitioner came to be given appointment .
against the post of Clerk on the basis of merit in the limited direct recruitment test conducted for eligible regular Class-IV employee, benefit of Dearness Relief accorded in favour of the petitioner could not have been withdrawn in terms of aforesaid clarification dated 23.01.2017. Mr. Gaurav of Sharma, further submitted that Office Memorandum dated 22.01.2001 heavily relied upon by the learned Single Judge is not applicable in the case of the appellant/petitioner because after her having received family pension rt on account of death of her husband, she never came to be re-employed/ employed in the Central/ State Government or Public Sector Undertaking.
He submitted that as per aforesaid provision, concession shall not be admissible to employed/ re-employed family pensioners, who have been given appointment on compassionate grounds. He further submitted that in the case at hand, neither appellant/petitioner ever came to be given appointment on compassionate grounds nor she after having received family pension ever came to be re-employed or employed in Central/ State Government. Lastly, Mr. Gaurav Sharma, learned counsel for the petitioner vehemently argued that clarification dated 23.1.2017, issued by the respondent-department is not sustainable in the eye of law because though same has been stated to be issued in clarification of office memorandum dated 22.1.2001, but since there is no mention, if any, of appointment, if ::: Downloaded on - 07/12/2023 20:32:38 :::CIS 6 any, given on compassionate grounds to the son/daughter of the deceased .
employee, department of its own could not have clarified that same shall also apply to a situation where apart from granting family pension to the spouse, appointment on compassionate grounds is also given to the son/daughter of the deceased employee.
of
7. Per contra, Sh. Rajesh Mandhotra, learned Additional Advocate General while supporting the impugned judgment passed by the learned Single Judge, vehemently argued that bare perusal of clarification issued by rt the Additional Director Treasuries, Accounts and Lotteries Himachal Pradesh, vide communication dated 23.01.2017 clearly reveals that aforesaid clarification was issued in continuation of Office Memorandum dated 22.01.2001, whereby a provision came to be made with regard to grant of Dearness Relief to the employed/re-employed family pensioners.
He submitted that Dearness Relief on family pension is not payable in case family pensioner, who is in receipt of family pension, gets re-employed or employed in the Central/ State Government or Public Sector Undertaking but in case after death of Government employee, his/her son/daughter is given compassionate appointment, spouse in receipt of family pension shall not be entitled to Dearness Relief.
8. Having heard learned counsel for the parties and perused material available on record vis-à-vis reasoning assigned in the impugned ::: Downloaded on - 07/12/2023 20:32:38 :::CIS 7 judgment passed by learned Single Judge, this court is persuaded to agree .
with Mr. Gaurav Sharma, Advocate, representing the appellant/petitioner that clarification dated 23.1.2017, issued by the respondent department could not be made applicable in the case of the petitioner.
9. Careful perusal aforesaid clarification dated 23.1.2017, if of perused in its entirety, clearly reveals that same has been issued with regard to admissibility of Dearness Allowance to the employed/re-employed family pensioners appointed on compassionate grounds. Interestingly, vide rt aforesaid clarification, department has clarified that in terms of Para 2 (3) of the Govt. O.M. No. Fin.C-D(1)-1/2000 dated 22-1-2001, Dearness Relief on family pension shall not be admissible to the spouse where other member i.e. son/daughter of the deceased Government servant is simultaneously given an appointment on compassionate grounds in Government Department without any competition, however, interestingly, aforesaid Office Memorandum specifically deals with grant of Dearness Relief on pension to the reemployed pensioner/family pensioner and it nowhere deals with a situation where a person after death of his/her spouse has not been held entitled to Dearness Relief on family pension, on account of compassionate appointment given to the other family members of the deceased employee. Aforesaid provision nowhere deals with situation where apart from family pension given to the wife/husband of deceased ::: Downloaded on - 07/12/2023 20:32:38 :::CIS 8 employee, family member of the deceased employee is also given .
appointment on compassionate grounds. At this stage, it would be apt to take note of the office memorandum dated 22.1.2001 and clarification dated 23.1.2017, which read as under:-
Office Memorandum dated 22.1.2001 of "Subject: Grant of Dearness Relief on Pension to reemployed Pensioners/Family Pensioners.
The undersigned is directed to say that as per extant orders on the subject, Dearness Relief to pensioners and family pensioners remains rt suspended during the period they remain re-employed/employed under the Central or State Government, or in a Public Sector Undertaking/Board/Autonomous Body/Bank in India or abroad. Similar is the position in regard to pensioners/family pensioners permanently absorbed in a Public Sector Undertaking/Autonomous Body/Bank under the Central or State Government. The question of allowing dearness relief to reemployed pensioners was engaging the attention of the Government for quite some time past. After a careful consideration the Governor, Himachal Pradesh, is pleased to order that:
1-2. ...................................... 3. This concession will also not be admissible to employed/re-employed family pensioners who have been given appointment on compassionate grounds. Payment of dearness relief in these cases shall become admissible only from the date they cease to be re- employed. The Pension Disbursing Authority shall require such a pensioner to produce a certificate of cessation of reemployment from the office in which he had been re-employed."::: Downloaded on - 07/12/2023 20:32:38 :::CIS 9
Clarification dated 23.1.2017 .
"To The District Treasury Officer, District Treasury Shimla, H.P. Dated Shimla-171009, the 23rd January, 2017 Subject:Clarification regarding admissibility of dearness allowance to the employed/re-employed family pensioners appointed on compassionate grounds.
Sir, Kindly refer to your letter dated 7th October, 2016 on the of subject cited above. It is intimated that the matter was referred to the Finance (Pension) Department. Finance (Pension) Department has clarified that in terms of Para2(3) of the Govt. O.M. No.Fin.C-D(1)-1/2000 dated 22-1-2001, the dearness relief on family pension shall not be admissible to rt the spouse where other member i.e. son/daughter of the deceased Government servant is simultaneously, given an appointment on compassionate grounds in Government department without any competition. You may, therefore, deal with the matter accordingly.
Yours faithfully, Sd/-
Additional Director, Treasuries, Accounts and Lotteries, H.P."
10. Careful perusal of office memorandum dated 22.1.2001, specifically deals with a situation of granting Dearness Relief on pension to re-employed pensioners/family pensioners. As per aforesaid provision, no Dearness Relief shall be paid on family pension to a spouse of a deceased employee from the date of his/her re-employment, if any. As per aforesaid provision, Dearness Relief to the family pensioner remains suspended during the period they remain reemployed under the Central Government ::: Downloaded on - 07/12/2023 20:32:38 :::CIS 10 or State Government or in Public Sector Undertaking. Since question of .
allowing Dearness Relief to reemployed pensioner was engaging the attention of the Government for quite some time, it specifically clarified vide aforesaid office memorandum that concession will not be admissible to reemployed family pensioners, who have been given appointment on of compassionate grounds, meaning thereby, Dearness Relief shall not be admissible to those persons, who after the death of an employee, were re-
employed or given appointment on compassionate grounds.
rt Once reemployment is ceased, pensioning authority on the basis of certification of cessation, if any, issued by the office concerned, would resume aforesaid benefit of Dearness Relief.
11. Having carefully perused office memorandum dated 22.1.2001, this Court finds that it nowhere deals with a situation where apart from grant of family pension in favour of wife/husband of the deceased employee, other family member of the deceased employee is given employment on compassionate grounds, as a result thereof, family pensioner is stopped from drawing Dearness Relief on the family pension.
If it is so, it is not understood on what basis clarification dated 23.1.2017, which has been heavily relied upon by the learned Single Judge while passing impugned judgment came to be issued by the Additional Director, Treasuries, Accounts and Lotteries, Himachal Pradesh. Needless to say, ::: Downloaded on - 07/12/2023 20:32:38 :::CIS 11 clarification, if any, can be issued with regard to instructions/order, if any, .
in existence, but in the instant case, vide clarification dated 23.1.2017, department itself introduced new condition/situation, which was actually not provided in the office memorandum dated 22.1.2001. As has been observed herein above, office memorandum dated 22.1.2001, specifically of deals with grant of Dearness Relief on pension to reemployed pensioners/ family pensioners and it nowhere deals with a situation, where apart from family pension to the spouse of the deceased employee, appointment is rt given to other family member of the deceased employee on compassionate grounds. Moreover, clarification dated 23.1.2017, if perused in its entirety, itself suggests that same has been issued with regard to admissibility of Dearness Relief to the employed/reemployed family pensioner appointed on compassionate grounds. If the aforesaid communication is read in entiriety, it clearly provides that matter was referred to the Finance Department, which has clarified that in terms of para 2 (3) of Office Memorandum dated 22.1.2001, Dearness Relief on family pension shall not be admissible to the spouse where other member i.e. son/daughter of the deceased Government servant is simultaneously given an appointment on compassionate grounds in Government Department without any competition. Aforesaid clarification issued by the authority concerned has no basis because though same has been issued in clarification of office ::: Downloaded on - 07/12/2023 20:32:38 :::CIS 12 memorandum dated 22.1.2001, but since condition with regard to non-
.
admissibility of Dearness Relief to the family pensioner on account of appointment given to other family members on compassionate grounds is/was not part of the office memorandum dated 22.1.2001, it is not understood that on what pretext or basis, the department issued of clarification dated 23.1.2017.
12. Otherwise also, careful perusal of order dated 23.1.2017, nowhere suggests that clarification given therein has been actually issued rt by the government, rather such letter has been issued by the Additional Director, Treasuries, Accounts and Lotteries, Himachal Pradesh, who though has made reference to the clarification given by the Department of Finance in terms of para 2 (3) of the office memorandum dated 22.1.2001, but as has been observed herein above, that since point qua which clarification has been sought to be given vide communication dated 23.1.2017, was never the subject matter of original Office memorandum dated 22.1.2001, clarification, if any, qua the same given vide communication dated 23.1.2017, is of no consequence. At this stage, it would also be relevant to take note of the Rule 55-A of the Central Civil Services (Pension) Rules, 1972:
"55-A. 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 Central Government may specify ::: Downloaded on - 07/12/2023 20:32:38 :::CIS 13 from time to time. (ii) If a pensioner is re-employed under the Central or State .
Government or a Corporation/Company/ Body/Bank under them in India or abroad including permanent absorption in such Corporation/ Company/Body/Bank, he shall not be eligible to draw Dearness Relief on pension/family pension during the period of such re-employment."
13. Careful perusal of aforesaid Rule 55-A clearly provides that if a pensioner is re-employed under the Central or State Government or a of Corporation/Company/Body/Bank in India or abroad, he shall not be eligible to draw Dearness Relief on pension/family pension during the period of such re-employment but aforesaid provision nowhere talks about rt a situation, where apart from grant of family pension in favour of the spouse of deceased employee, compassionate appointment is given to other family member on account of death of the deceased employee.
14. Having perused the office memorandum dated 22.1.2001 and clarification dated 23.1.2017, juxtaposing Rule 55-A of the Central Civil Services (pension) Rules, 1972 as reproduced supra, though this court finds no fault with the finding returned by the learned Single Judge that para 2 (3) of the office memorandum dated 22.1.2001, is in tune with Rule 55-A of the CCS(Pension) Rules, but certainly, there is no reason to concur with another finding returned by the learned Single Judge that import of clarification issued by the respondents on 23.1.2017, is also in sync with office memorandum dated 22.1.2001, which otherwise nowhere specifically deals with issue of grant of Dearness Relief on pension to reemployed ::: Downloaded on - 07/12/2023 20:32:38 :::CIS 14 pensioners/family pensioners. Learned Single Judge has erred in .
concluding that office letter dated 23.1.2017, simply clarifies what is already contained in the office memorandum dated 22.1.2001 because it only provides that Dearness Relief to the reemployed pensioner/family pensioner shall remain suspended during the period they remain re-
of employed/employed under the Central or State Government or in the Public Sector Undertaking/Board. It nowhere deals with a situation where apart from granting family pension to the spouse of a deceased employee, rt appointment on compassionate grounds is also provided to other family member, be it son or daughter of the deceased employee.
15. At the cost of repetition, it may be noticed that even in office memorandum dated 22.1.2001 taken note by the learned Single Judge, it has been clarified that the question of allowing Dearness Relief to reemployed pensioners was engaging the attention of the Government for quite some time and after careful consideration, the Governor, Himachal Pradesh, clarified this concession will also not be admissible to employed/re-employed family pensioners, who have been given appointment on compassionate grounds. The Governor of Himachal Pradesh nowhere clarified that Dearness Relief on family pension shall not be admissible to the spouse, where other member i.e. son/daughter of the deceased Government servant is simultaneously given an appointment on ::: Downloaded on - 07/12/2023 20:32:38 :::CIS 15 compassionate grounds in Government Department without any .
competition. Though aforesaid clarification dated 23.1.2017, is stated to have been given on the basis of clarification issued by the Department of Finance, but no such document has been placed on record.
16. Leaving everything aside, clarification dated 23.1.2017, if of accepted in toto, would create an anomalous situation. There may be a situation where two persons of a family i.e. husband and wife on account of their being in service must be getting Dearness Relief alongwith their rt salary, but if analogy sought to be applied through aforesaid communication dated 23.1.2017, is accepted or pressed into service, that would cause serious prejudice to such category of persons, who though may be related to each other, but were got inducted in government service on account of their independent merit. Very purpose of granting Dearness Relief is to provide succor to employees on account of price index. Rise in price index, if any, shall remain same in the case of all employees serving in the State/Central Government or other autonomous bodies. Merely that one family member on account of his/her being in employment is in receipt of Dearness Relief alongwith his/her salary cannot be a ground to deny such relief to other family member on account of his in government service, which otherwise, he/she would get independently as per his/her entitlement.
::: Downloaded on - 07/12/2023 20:32:38 :::CIS 1617. Besides this, there may be some logic in not providing dearness .
allowance/relief to one person in two components i.e. pension /family pension as well as salary, as the purpose of providing dearness allowance/relief is to cover for the price hike, which may not be granted in two components, but where pensioner/family pensioner and employee are of two separate persons i.e. family pension is being received by one person and reemployment on compassionate grounds is provided to another person, said logic may not apply and in that case, dearness relief/allowance rt being provided to one person cannot be stopped, on the pretext that another person is either in government service or is in receipt of pension/family pension. Otherwise, this view gains strength from the fact that Rule 55 (supra) and O.M. dated 22.1.2001 only speaks of not providing dearness relief to a reemployed pensioner/family pensioner, in case of reemployment and the inference drawn by the respondents to the effect that in case of reemployment of a family member, another family member, who is in receipt of family pension/pension, shall not be paid any dearness relief/allowance, appears to be sans any logic or legal foundation.
18. Since this Court is of the definite view that clarification dated 23.1.2017 is without any basis, finding given by the learned Singe Judge, qua the applicability of the same need not be gone into by this Court.
Learned Single Judge has wrongly placed reliance upon the clarification ::: Downloaded on - 07/12/2023 20:32:38 :::CIS 17 dated 23.1.2017 while considering prayer made by the petitioner. Clause .
2(3) of office memorandum dated 22.1.2001 specifically talks about admissibility of Dearness Relief to reemployed family pensioners appointed on compassionate grounds and does not take away the right of a family pensioner to receive Dearness Relief, that too, on the ground that other of family members has been given appointment on compassionate grounds.
19. Consequently, in view of detailed discussion made herein above, this Court finds merit in the present appeal and accordingly, same is rt allowed. Judgment dated 8.8.2023 passed by learned Single Judge in CWP No. 7495 of 2021 titled Shakuntala Devi v. State of H.P. and others is set aside. Writ petition filed by the petitioner is allowed. Clarification dated 23.1.2017 (Annexure P-6 of the writ petition) is set aside being illegal and contrary to Rule 55 itself. Respondents are directed to pay the dearness relief to the petitioner on the basic pension, as per Government instructions and keep on paying the same in future, in accordance with law. It is also directed that in case any recovery has been made from the petitioner, same be also refunded to her forthwith.
(Vivek Singh Thakur),
Judge
December 6, 2023 (Sandeep Sharma),
(manjit) Judge
::: Downloaded on - 07/12/2023 20:32:38 :::CIS