Smt. Vibha Singh vs State Of U.P. And Others on 21 May, 1998

[Cites 2, Cited by 10]

Allahabad High Court

Smt. Vibha Singh vs State Of U.P. And Others on 21 May, 1998

Equivalent citations: 1998(3)AWC2044

1. The petitioner has come up with a prayer to quash Circular No. PA-1/SA/UP/2020, dated 19.5.1976 as contained in Annexure-SCA-1 of respondent No. 2 and the order dated 2.5.83 passed by the Accountant General, U. P. (Respondent No. 2) as contained in Annexure-7 to the writ petition by grant of a writ of certtorari. A further prayer has been made to command the respondents to pay her dearness allowances with interest as admissible under the Rules on the extraordinary pension and to pay ex gratia payment of Rs. 50,000 along with interest at the bank rate.

2. At the very threshold. Mr. Yogesh Agrawal, the learned counsel appearing on behalf of the petitioner contended that the relief sought for in regard to payment of ex gratia payment is not being pressed as it has already been paid. In this view of the matter, this writ petition in this regard is dismissed as not pressed.

3. The relevant facts are in a narrow compass.

4. The petitioner asserts that she as well as her husband Krishna Pratap Singh both were employed in the district Gonda as Treasury, Officer and Deputy Superintendent of Police. Gonda respectively in the year 1982 ; that in the night intervening March 12-13. 1982, her husband was killed while on duty : keeping in view his tragic and untimely death while on duty, the State Government ordered for various awards, compensatory allowances, pension, etc. and the petitioner was granted extraordinary pension under Rule-10 (2) of the Uttar Pradesh Civil Services Extraordinary Pension Rules (1st Amendment), 1981 ; She received pension order dated 15.9.82 issued by respondent No. 2 through which she as well as her two minor daughters aged about 5 and 4 years were given extraordinary pension with effect from 14.3.1982 and consequently she is receiving a sum of Rs. 1,292.80 p. per month ; she pressed her claim for deamess allowance as admissible under the Rules since 1982 but she was informed by respondent No. 2 vide Letter dated 2.5.1983 as contained in 'Annexure-7' that she is not entitled to the dearness allowance as she is already getting the same with her pay as an Accounts Officer. Gandak Samadesh, Gorakhpur ; Denial of grant of dearness allowance to her and her two daughters on the grounds mentioned therein is unjustified, unreasonable and arbitrary since the petitioner is getting dearness allowance in her own rights and in any event, the daughters have a right to receive benefit of extraordinary pension from the State Government. The impugned Government circular dated 19.5.76 deserves to be quashed and declared invalid as it imposes unjustified, unreasonable and arbitrary condition which also do not apply.

5. In the counter-affidavit filed on behalf of the State, it has been stated, inter alia, that according to Rule 10B of the Government Order, if a Government servant is killed or dies of Injury received as a result of special risk of office, a gratuity and pension to the widow and to minor children of the applicable amount specified in Schedule III-A is to be given to them, the pension has to be sanctioned to the widow, if the wife of the deceased official is not alive or dies or remarries the minor children shall, from the date of such event, be entitled to full pension which would have been admissible to the widow and it shall be equally distributed amongst them ; she was sanctioned extraordinary pension ; since the husband of the petitioner was a Class II Officer at the time of his death and as such, his family was entitled to receive only Rs. 40,000 in terms of Rule 10 (2) and not Rs. 50,000 as announced by the Minister of Home State under some misunderstanding and she is not entitled to get Rs. 50,000 and the amount of Rs. 40,000 was also paid to her and at the remaining matters are for respondent No. 2 to answer.

6. In the counter-affidavit and the supplementary counter-affidavit filed on behalf of respondent No. 2. It has been stated, inter alia, that when it was noticed that the beneficiary of extraordinary pension is a Government servant who is already receiving dearness allowance with her pay, the Treasury Officer was instructed on 2.5.1983 that the relief on pension is not admissible to the petitioner in accordance with the provisions of U. P. Government Office Memorandum No. SA-3-628/X-935/78, dated 16.4.1981 (copy appended as Annexure-CA 1) ; the extraordinary pension along with gratuity was sanctioned by the Director General of Police vide Police Head Quarter. U. P. Allahabad Letter No. IV/A-65-82, dated 29.11.1982 to the petitioner for the period from 14.3.1982 to 30.6.2012 the date on which her husband would have superannuated had he been alive and thereafter normal to which the Government servant would have been entitled on superannuation till the date of her death or remarriage, whichever is earlier under Rule 10 (II) of Uttar Pradesh Civil Services (Extraordinary Pension) Rules and accordingly she is not entitled for the relief (dearness allowance) on extraordinary pension, that Office Memo dated 16.4.81 as contained in Annexure-SCA 5 was Issued clarifying that relief on family pension is not admissible to those beneficiaries of family pension who are employed in the service : that vide Government Order dated 12.8.1983 as contained in Annexure-SCA-VI it was clarified that recipient of family pension under the U. P. Civil Services (Extraordinary Pension) Rules are entitled to the relief at the same rate from the same date as is admissible to beneficiaries of family pension under U. P. Librised Pension Rules, 1961/U. P. Retirement Benefit Rules, 1961/New Family Pension Scheme. 1965 ; and that the petitioner has failed to make out any ground for interference and she is not entitled to any relief and the present writ petition is liable to be dismissed.

7. Sri Yogesh Agrawal, the learned counsel appearing in support of this petition contended as follows :

"(i) The petitioner in the capacity of widow as well as mother of two minor daughters was entitled to the relief (dearness allowance) on account of her deceased husband and father of her two minor daughters, which was emolument as defined in Rule 2 of the 1981 Rules framed under Article 309 of the Constitution of India and thus this entitlement could not have been curtailed by the impugned Government Circular in question or any office memorandum and accordingly the petitioner is entitled to the relief claimed for by her. The question of grant of extraordinary pension are governed only by the Rules and not by Circular and office memo referred to by the respondents in their counter-affidavit."

8. Sri S. K. Jaiswal, learned standing counsel appearing for the respondents contends that there is no illegality in the Impugned order since the petitioner was already drawing dearness allowance in her capacity of being Government Officer being posted as Treasury Officer and the Government Order dated 11.5.1976 as referred to in Annexure-CA 1 which relates to admissibility of the benefit of relief by way of dearness allowance to the pensioners also. In this Government Order it is specifically stated that "this relief is not admissible to the pensioners who are re-employed and are getting dearness allowance". He further contends that so far as the relief with regard to ex gratia payment of Rs. 50,000 is concerned that has already been granted to the petitioner.

9. Learned counsel for the petitioner during arguments presses his relief No. 1 with regard to the quashing of the order dated 2.5.1983 as contained in Annexure-7 to the writ petition and for commanding the respondents to pay relief with interest as admissible under Rules on the extraordinary pension.

10. We may observe here that Annexure-CA 1 on the basis of which the benefit of relief by way of deamess allowance was not made available to the petitioner was issued in the year 1976 on the basis of the Government Order contained in letter No. G-4-952-54/76, dated 11.5.1976. It was amended from time to time by Government Orders. This Government Order was applicable to the Uttar Pradesh Government Pensioners under the U. P. Civil Services (Extraordinary Pension) Rules, 1961, U. P. Retirement Benefit Rules, 1961, New Family Pension Scheme, 1965 and Compassionate Allowance under Article 353 of the Civil Service Regulations. The Uttar Pradesh Civil Services (Extraordinary Pension) Rules, 1961 were amended in the year 1981 by the Uttar Pradesh Civil Services (Extraordinary Pension) (First Amendment) Rules, 1981 in exercise of the powers under the Proviso to Article 309 of the Constitution by the Governor of Uttar Pradesh. After Rule. 3, sub-rule (3), a New sub-rule (3A) was inserted which is to the following effect :

"(3A). 'Emoluments means-

(i) pay as defined in these rules ; and

(ii) dearness allowance."

Schedule III-A under Rule 10 provided for payment of immediate relief, long term relief and also payment of family gratuity and pension. As regards the payment of pension. Schedule III-A provided as follows :

"Equal to the emoluments last drawn by the deceased official till the date he would have retired on superannuation pension. Thereafter the family pension will be equal to that amount which the deceased official would have drawn in accordance with the ordinary pension rules applicable to him at that time had he not died, subject to the following presumption :

(1) that the deceased official would have continued to render qualifying service till the date of superannuation and that he did not get any promotion.

(2) that in case the deceased official was temporary or was working in an officiating capacity, a probable date of his confirmation will be presumed.

In case the scale in which the deceased official worked last is revised by the date on which he would have retired on superannuation, the pension will be calculated on the presumptive pay which the deceased official would have drawn at the time of superannuation had he been alive."

A bare perusal of the first paragraph relating to payment of pension shows that Schedule III-A provides for payment of pension equal to the emoluments last drawn by the deceased official till the date he would have retired on superannuation pension. Thus, till the date of retirement of the deceased official (in the present case the husband of the petitioner), the petitioner was entitled to the family pension equal to the emoluments last drawn by the deceased official, viz., the husband of the petitioner and she would be entitled to such emoluments as family pension till her husband would have retired on superannuation. We have already pointed out above that the newly inserted definition of emoluments included pay as defined in the Rules and the dearness allowance. This was a subsequent amendment in the U. P. Civil Services (Extraordinary Pension) Rules in exercise of the powers under the proviso to Article 309 of the Constitution and thus, it clearly superseded the earlier Government Notification referred to in Annexure-CA 1. Besides this, the Government Orders or Notifications Issued by the executive authorities cannot supersede statutory Rules which were framed in exercise of the powers of the Governor under the proviso to Article 309 of the Constitution. The respondents while issuing the order as contained in Annexure-7 to the writ petition failed to take notice of the amended provisions of the Uttar Pradesh (Extraordinary Pension) Rules as amended by the U. P. Civil Services (Extraordinary Pension) (First Amendment) Rules. 1981. There is no dispute that under Rule 10 of the said Rules the deceased husband of the petitioner was killed of the injuries received as a result of risk of office and his widow was entitled to a gratuity and pension in accordance with the provisions contained in Schedule III-A. This is evident from Rule 10 (ii) which reads as follows :

"(ii) If a Government servant is killed or dies of injury received as a result of special risk of office, a gratuity and pension to the widow and If there is no widow eligible to receive the gratuity and pension then to minor children of the applicable amount specified in Schedule III-A. The award shall be sanctioned to the widow. If the wife of the deceased official is not alive or dies or remarries, the minor children shall from the date of such event be entitled to full pension which would have been admissible to the widow and it shall be equally distributed amongst them. If the deceased official is not survived by his wife or is so survived, but the gratuity has not been paid to her until she dies or remarries, the gratuity which would have been admissible to the widow shall be equally distributed among the minor children entitled to receive pension :

Provided that the applicable amount specified in Column 2 (a) of Schedule III-A shall be disbursed by the Head of Department or office Immediately on receipt of information of death of the Government servant to the persons eligible to receive the gratuity pending a formal award in accordance with these rules :

Provided further that no award shall be made under the Uttar Pradesh Police (Extraordinary Pension) Rules, 1961, or any family pension/gratuity under the Uttar Pradesh Liberalised Pension Rules or Uttar Pradesh Retirement Benefits Rules, or family pension under the New Family Pension Scheme, 1965, or Government Contribution under the Uttar Pradesh Contributory Provident Fund Pension Insurance Rules, be payable if an award has been made under this sub-rule.

Note.--If a Government servant dies leaving behind two or more widows, the pension or gratuity admissible under this Rule to the widow shall be divided equally among all the widows."

11. From perusal of the impugned order as contained in Annexure-7 to the writ petition, it appears that the benefit of relief was not allowed to the petitioner on the ground that the petitioner (beneficiary of the pension) was already employed and was getting deamess allowance. Perusal of Annexure-CA 1 would show that the benefit of the relief was not admissible only to those pensioners who are re-employed and were getting dearness allowance. In the present case, the petitioner was not re-employed but she was already employed at the time of the death of her husband. For applicability of clause of non-admissibility of relief to the pensioners' two conditions have to be satisfied, viz., the pensioner is re-employed and is getting dearness allowance. In the present case, the petitioner (pensioner) has not been re-employed and the word 'and' between re-employed and are getting dearness allowance cannot be interpreted to mean 'or'. Both the conditions must exist before the petitioner is deprived of the benefit of dearness allowance. In the instant case, the petitioner was not re-employed and, therefore, merely on the ground that she was already getting dearness allowance on account of being employed, she cannot be deprived of the benefit of the deamess allowance under the Uttar Pradesh Civil Services (Extraordinary Pension) (First Amendment) Rules, 1981.

12. Learned standing counsel has referred to Government Order dated 16th April, 1981 as contained in Annexure-SCA 5 which provides that after reconsideration the Governor has ordered that the additional relief and the relief which are to be sanctioned in future on pension shall not be admissible to such family pensioners who are serving in any department under the State Government or the Central Government or Local Self Government or Nationalised Bank, etc. The contention of the learned counsel for the petitioner is that the U. P. Civil Services (Extraordinary Pension) Rules were framed in exercise of the powers of the Governor under Article 309 of the Constitution of India and the aforesaid Circular/Government Order cannot supersede the Rules which were framed in exercise of the powers, under the Constitution of India. We may point out here that the Notification referred to by the learned standing counsel as contained in Annexure-SCA 5 is dated 16th April, 1981 whereas the U. P. Civil Services (Extraordinary Pension) (First Amendment) Rules, 1981 were notified in the official gazette on 28th December, 1981 although the same came into effect from January, 1981. In the notification dated 28th December. 1981 amending the Rules, there is no provision depriving the family pensioners of the benefit of dearness allowance or relief granted as dearness allowance. On the other hand, as we have already pointed out above Rule 3 and sub-rule (3A) defining emoluments and Schedule III-A framed under Rule 10 providing that the pension shall be equal to emoluments last drawn by the deceased official till the date the official would have retired on superannuation. In this view of the matter, on the basis of the Government Order/Notification as contained in Annexure-SCA 5, the petitioner could not have been deprived of the benefit of relief. Besides this, the learned standing counsel has fairly conceded that the Government Order could not have done away with the statutory Rules framed in exercise of the powers under Article 309 of the Constitution of India.

13. In the result, this petition is liable to succeed in part and the impugned order as contained in Annexure-7 to the writ petition has to be quashed. Consequently, the petition is partly allowed. The order of respondent No. 2 as contained in Annexure-7 to the writ petition is hereby quashed. The respondents are directed to pay pension, emoluments, etc. as defined in Rule 3, sub-rule (3A) of the Rules which included the pay as defined under the Rules and the dearness allowance. The arrears of the relief (dearness allowance) shall be paid to the petitioner within 3 months from today.

14. In the peculiar facts and circumstances of the case, we pass no order as to cost.

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Allahabad High Court