Smt. Shardha Devi vs The State of Bihar and Others

The appeal is barred by limitation.

After having heard learned Counsel for the parties and taking into consideration the averments made in the limitation petition, we are of the view that sufficient pound has been made out to condone the delay in filing this appeal. Accordingly, the delay in filing this appeal is condoned.

This appeal is directed against the order dated 21.3.2002 passed in CWJC No. 2434 of 2002 by a learned Single Judge of this Court whereby the claim made by the Appellant for payment of dearness allowance on the family pension which she was getting on the death of her husband has been rejected.

The question in this case lies in a narrow compass. The Appellant is in government service. Her husband was also in government service. After the death of her husband, she was getting family pension. The only controversy is as to whether on family pension she is entitled to dearness allowance or not. The learned Single Judge rejected the said prayer relying upon the circular of the State Government dated 9.5.1991 wherein paragraph 2 thereof provides inter alia that dearness allowance on the family pension shall be denied to a person if he has been re-employed or employed in State Government service or Central Government Service or its department etc.

The learned Counsel for the Appellant submitted that the word ''employed or re-employed'' in paragraph 2 of the said circular of the State Government refers to an employment and re-employment occasioned due to death of employee, but does not cover a case where a person getting the family pension has already been employed independently at the time of the aforesaid eventuality. In support of the aforesaid submission she has relied upon a judgment of the Apex Court in the Case of H.S.E.B. and Ors. v. Azad Kaur reported in (2000) 3 SCC 227.

The learned Counsel appearing for the State on other hand submitted that once the person is employed in the Government Service, he is not entitled to dearness allowance on the family pension. It is wholly immaterial whether that employment was independent one or necessitated because of the death of the employee concerned.

We find force in the aforesaid submission advanced on behalf of the learned Counsel for the Appellant. This case is fully covered by the law laid down by the Apex Court in the case of H.S.E.B. and Ors. (supra), where the word ''employed or reemployed'' as similar to the present provision was a matter of determination and the Apex Court held that if the person is independently employed in that situation the ad hoc relief cannot be denied to the holder of the family pension.

In our view, the learned Single Judge was thus not justified in holding that the Appellant was not entitled to the dear-ness allowance on the family pension.

Accordingly, the impugned order is set aside and the Respondents are directed to make payment of dearness allowance on the amount of family pension to the Appellant.

With the aforesaid direction/observation, the appeal stands allowed.