IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 26/07/2006
Coram
The Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR
Writ Petition No.19944 of 2006
and
M.P.No.1
P. Victor Joseph Raj ...Petitioner
-Vs-
1. The Accountant General
Teynampet,
Chennai.
2. The District Treasury Officer,
Trichy.
3. The State of Tamil Nadu,
rep.by the Secretary
to Government,
Finance (Pension) Department,
Secretariat,
Chennai 600 009. ...Respondents
(R 3 impleaded as per the order dated 12.7.2006
in M.P.2 of 2006 in W.P.No.19944 of 2006)
This writ petition is filed under Article 226 of Constitution of
India, praying this Court to issue a writ of certiorarified mandamus to call
for the records on the file of the third respondent in connection with the
order passed by him in G.O.Ms.No.191 Finance (Pension) Department dated
16.3.1996 and quash the same and consequently direct the respondents to pay
the dearness allowance in petitioner's family pension and further direct the
respondents to pay the recovered amount from petitioner's family pension.
(Prayer amended as per order of the Court dated 12.7.2006 in M.P.3 of 2006 in
W.P.No.19944 of 2006)
!For Petitioner : Mr.K.Sanjay
^For 1st Respondent : Mr.V.Vijayashankar
For Respondents 2 and 3 : Mr.A.Arumugam
AGP
:ORDER
In this writ petition, petitioner seeks to quash the G.O.Ms.No.191,
Finance (Pension) Department, dated 16.3.1996 and consequently direct the
respondents to pay the dearness allowance on petitioner’s family pension and
further direct to pay the recovered amount from petitioner’s family pension.
2. The brief facts necessary for disposal of the writ petition
are as follows.
(i) Petitioner is working in the Southern Railways and he is
receiving salary from the Central Government. His wife was employed as
Secondary Grade Teacher in the Municipal Middle School in the year 1980. The
marriage of the petitioner took place in the year 1983 and the wife of the
petitioner expired in the year 2005, while she was in service and the first
respondent granted family pension to the petitioner as per the rules from the
date of death of petitioner’s wife.
(ii) The grievance of the petitioner is that the amount of family
pension sanctioned is now reduced to half from April, 2006 i.e., from
Rs.6,399/- to 3,525/-, for which neither notice was issued to the petitioner
nor opportunity of hearing was given. On enquiry from the respondents it was
learnt that the petitioner has been receiving dearness allowance and the same
is being paid along with his salary and therefore for the family pension, he
is not entitled to get dearness allowance.
(iii) The State Government issued G.O.Ms.No.191 Finance (Pension)
Department dated 16.3.1996 and stated that the Government of India in its
office memorandum dated 14.3.1995 issued instructions following the judgment
of the Honourable Supreme Court in Civil Appeal Nos.3542-3 546 dated 8.12.1994
and upheld the decision to withhold the dearness allowance on pension and
family pension in the case ex-servicemen, who got reemployment or whose
dependants got employment. The third respondent examined the question in the
light of the above Government of India decision and ordered as follows,
“The Government have examined the question of allowing Dearness
Allowance on family pension to the family pensioners of State Government who
are employed and decided not to allow Dearness Allowance on family pension in
the case of family pensioners who are employed. Accordingly, they direct that
Dearness Allowance on family pension shall be suspended if a family pensioner
is employed in State or Central Government or a Government Undertaking or a
Corporation or an autonomous body or a local fund in a post on fixed pay or on
time scale of pay where Dearness Allowance on pay is allowed. In all other
cases of employment where no Dearness Allowance is allowed, in addition to
remuneration. Dearness Allowance on family pension shall be allowed. These
orders shall take effect from the date of this order. In the case of those
who were employed prior to the date of this order, but continue to be on
employment on the date of this order. Dearness Allowance on family pension
whenever not admissible shall be suspended with effect from the date of this
order.”
The said Government Order is challenged in this writ petition with a
prayer to quash the same and consequently direct the respondents to
continuously pay dearness allowance on petitioner’s family pension and also to
refund the recovered amount.
3. The first respondent filed counter affidavit and stated that
by virtue of the impugned Government Order only the petitioner is denied
dearness allowance on family pension.
4. The learned counsel appearing for the petitioner submitted
that the Honourable Supreme Court in the decision reported in (1995) 2 SCC 32
= JT 1995 (1) SC 417 (Union of India & Others v. G.Vasudevan Pillay & Others,
etc., etc.) dealt with the case of re-employed exservicemen and persons
appointed on compassionate ground after the death of the person for whom
family pension was sanctioned and the Supreme Court had not dealt with the
case of the family pensioner, who was already employed and was receiving
salary. Learned counsel further submitted that in the subsequent decision
reported in (2000) 2 SCC 227 ( H.S.E.B. and others v. Asad Kaur) the
Honourable Supreme Court distinguished the above judgment and held that if a
person is already employed and he was sanctioned family pension due to the
death of his/her wife or husband, the said person is entitled to get dearness
allowance on family pension along with salary/pension, payable to him by
virtue of his appointment, prior to the death of the person concerned.
5. I have also heard the learned counsel appearing for the
respective respondents and considered the rival submissions of both parties.
6. The point in issue is whether the petitioner, who has already
been appointed prior to the death of his wife, is entitled to get family
pension with dearness allowance, while receiving his salary with dearness
allowance.
7. The impugned G.O.Ms.No.191 dated 16.3.1996 has been issued by
the third respondent only on the basis of the judgment of the Honourable
Supreme Court reported in (1995) 2 SCC 32 (cited supra). Admittedly, the said
judgment has been explained in the subsequent decision reported in (2000) 2
SCC 227 (cited supra), wherein in paragraphs 2 to 5 the Honourable Supreme
Court held thus,
“2. The appellants have placed reliance on a decision of this
Court in Union of India v. G.Vasudevan Pillay ((1995) 2 SCC 32). The
decision in that case dealt with ex-servicemen who had been re-employed. The
Court said that pensioners who have got re-employment can be treated
differently from other pensioners; and in the case of reemployed pensioners,
it would be permissible in law to deny dearness relief on pension inasmuch as
the salary to be paid to them on re-employment takes care of erosion in the
value of money because of rise in prices. The Court also observed that the
denial of dearness relief on family pension on a fresh employment being
granted to the dependant/ widow of an ex-serviceman will also be sustained.
3. This decision, therefore, deals with cases where (i) the
pensioner himself gets re-employment, or (ii) the widow or a dependant of the
pensioner such as a son, gets fresh employment on compassionate grounds. It
does not deal with any case where one of the recipients of the family pension
is also independently employed elsewhere.
4. The other decision which was relied upon by the appellants is
a decision of the Punjab & Haryana High Court in the case of Haryana Civil
Pensioners Assn. (Regd). v. State of Haryana ((1995) 7 SLR 181 (P&H)(DB))
where also the High Court followed the decision of this Court in Union of
India v. G. Vasudevan Pillay ((1995) 2 SCC 32). The High Court dealt with
Rule 55-A of the Central Services (Pension) Rules and the instructions issued
by the Central Government as well as by the Government of Haryana under which
a pensioner was not liable to dearness allowance on pension during the period
of his re-employment. The Court said that the person who was re-employed
after retirement and who had got the pay of the re-employed post together with
dearness relief, can be denied the dearness relief on his pension. The same
observations were made in respect of the employment of a dependant on
compassionate grounds. This case also, therefore, has not dealt with a
situation where one of the recipients of the family pension is independently
employed even prior to the death of the employee.
5. It is not the case of the appellant that the respondent
secured employment on compassionate grounds as a teacher after the death of
her husband. In fact, we fail to see how she could have secured any
employment on compassionate grounds in a totally different service.”
The Honourable Supreme Court held that the dearness allowance on family
pension cannot be withheld even if the widow was in service, since the
employment was not on compassionate grounds and upheld the judgment of the
Division Bench of Punjab & Haryana and dismissed the civil appeal. Thus, the
point in issue raised in this writ petition has already been decided by the
Supreme Court in the above cited decision.
8. In this case, the petitioner was employed prior to the death
of his wife and therefore the decision of the Supreme Court reported in (2000)
2 SCC 227 (cited supra) squarely applies to the present case. Hence the
impugned order is unsustainable as held by the Honourable Supreme Court.
9. In the result, the impugned G.O.No.191 dated 16.3.1996 is set
aside insofar as the G.O. not sanctioning dearness allowance to the family
pensioners, who are already employed prior to the death of their spouse. The
respondents are directed to restore the family pension with dearness
allowance, sanctioned to the petitioner and pay the same from May, 2006 after
adjusting the amount of Rs.3,525/- already paid from April, 2006. The arrears
shall be calculated and paid on or before 31.8.2006 and the monthly family
pension payable to the petitioner from August, 2006 shall be paid with
dearness allowance. It is made clear that the ex-servicemen who got
re-employment or persons got appointment on compassionate ground pursuant to
the death of their spouse are not entitled to get dearness allowance on family
pension.
The writ petition is allowed with the above directions. No costs.
vr
To
1. The Accountant General,
Teynampet, Chennai.
2. The District Treasury Officer,
Trichy.
3. The Secretary to Government,
Finance (Pension) Department,
Secretariat, Chennai 600 009.