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Judgment
Since a common question emerges for our consideration in
both the writ petitions, the same are being decided by the present
order.
In CWP No.8713/2006 the petitioner is working as a Teacher
in the Department of Education in Government of Rajasthan for a
quite long time & her late husband Vinod Kumar was also serving
in the erstwhile Rajasthan State Electricity Board in the office of
the Assistant Engineer (B-IV), Kota on the post of Lower Division
Clerk and he died while in service on 04.02.1997 and accordingly
family pension was granted to the petitioner vide PPO No.2677(R)
dt.21.04.1999.
After the death of her husband, the petitioner applied for
appointment of her son in place of his late father on preferential
basis under the Compassionate Appointment Rules, 1996 but his
son was denied appointment on preferential basis on the pretext
that the petitioner is substantively working in Government service
vide letter dt.31.08.2002.
In CWP No.8081/2015, the petitioner was appointed as a
Lecturer (Political Science) in the department of College Education
in 1996 and the petitioner''s husband Dr.Bhanwar Lal Gadhwal was
appointed as a Lecturer (Political Science) on 09.09.1995 but
while working as Lecturer, unfortunately he met with an accident
and died during the course of treatment in the SMS Hospital,
Jaipur on 17.08.2003 and after the death of her husband
Dr.Bhanwar Lal Gadhwal, application was moved for sanction of
family pension under the provisions of the Rajasthan Civil Service
(Pension) Rules, 1996 although she was granted family pension
w.e.f. 18.08.2003 but Dearness Allowance/Relief has been
withheld on enquiry from the office of the Pension Disbursing
Officer wherein it was informed that vide order dt.14.09.1995
issued by the Finance Department, the Dearness Allowance/Relief
shall remain suspended in view of R.77(ii) of the Rajasthan Civil
Services (Pension) Rules, 1996 and according to the respondents
no Dearness Allowance/Relief is payable to the pensioner
(including family pensioner) who is employed/re-employed in a
State/Central Government Department or any other State/Central
owned agencies/authorities vide letter dt.16.10.2014.
It is not disputed even by the respondents that both the
petitioners were already serving in the department of Education/
College Education as Teacher/Lecturer at the time of death of their
husband who were serving in the erstwhile State Electricity Board,
now on unbundling of the State Electricity Board it is the Jaipur
Vidyut Vitran Nigam Limited who is defending the matter/Director,
College Education.
The main thrust of submission of counsel for the petitioners
is that where the family pensioner is already in employment at the
time of death of their spouse working on the post in their own
independent capacity & getting the family pension to which the
pensioner is entitled for includes Dearness Allowance/Relief and
the term ''employed/re-employed'' of which reference has been
made u/R.77(ii) of the Rules, 1996 may relate to re-employment
of pensioner or the first regular appointment/employment of the
family pensioner, at least may not be misconstrued to derive the
term ''employed/re-employed'' of which reference has been made
u/R.77(ii) of the Rules, 1996 depriving the Dearness
Allowance/Relief to the family pensioner to which they are
legitimately entitled for under the scheme of Rules, 1996.
Counsel for the petitioner further submits that without going
into any further controversy, the Government of India,
Department of Pension vide their Office Memorandum
dt.02.07.1999 clarified regarding the payment of Dearness
Allowance/Relief to the re-employed pensioner and employed
family pensioners at the rates applicable from time to time shall
be admissible on their family pension.
Counsel submits that at least in the light of the Office
Memorandum of the Central Government, Dearness
Allowance/Relief could not have been denied on the family pension
to the family pensioners who are employed in the State/Central
Government Department or any other State/Central owned
agencies in their own independent capacities and submits that the
State authorities have mis-interpreted R.77(ii) of the Rules, 1996
and at the same time such an interpretation which has been made
by the respondents in denying the benefit of Dearness
Allowance/Relief to the family pensioners is arbitrary & violative of
Art.14 of the Constitution.
Counsel for the respondents, on the other hand, submits that
since Dearness Allowance/Relief is being denied on family pension
to such of the eligible family pensioners who are employed/re-
employed, as being contemplated/envisaged from R.77(ii) of the
Rules, 1996 and submits that it is not the case of the petitioners
that the State does not hold competence to withhold Dearness
Allowance/Relief on family pension and since Dearness Allowance/
Relief cannot be claimed as a matter of right, it does not violate
any of their fundamental rights, as such what has been prayed for
in claiming declaration of R.77(ii) of the Rules, 1996 as arbitrary &
unconstitutional, without being supported by any justification,
needs no further indulgence.
We have heard counsel for the parties and considered their
rival submission and also perused the material placed on record
with their assistance.
Indisputably, the petitioners are working on the post of
Teacher/Lecturer in their own independent capacity and their
spouse was also working under the erstwhile RSEB/Department of
College Education when they died in harness & none of the
petitioner or dependents are appointed in the State of Rajasthan
on compassionate grounds on account of death of their spouse
and indisputably, the petitioners are neither employed/re-
employed in the State of Rajasthan claiming benefit of family
pension inclusive of Dearness Allowance/Relief under the relevant
scheme of Rules, 1996.
The grievance of the petitioners is that although they have
been granted family pension but they have been denied Dearness
Allowance/Relief, which is admissible to them, on the family
pension. As per the defence of the respondents, the benefit of
Dearness Allowance/Relief has been denied to the petitioners on
the ground that they being in employment are already getting
Dearness Allowance on the salary they earn.
Under the scheme of the Rajasthan Civil Services (Pension)
Rules, 1996, Dearness Relief, family pension & pension have been
defined u/R.3(c), 3(f) & 3(p) and Dearness Relief is defined
separately u/R.77 of the Rules, 1996. R.3(c), 3(f), 3(p) & R.77(ii)
of the Rules, 1996, with which were are presently concerned, are
reproduced ad infra:-
"3(c) ''Dearness relief'' means relief as defined in rule 77;
3(f) ''family pension'' means family pension admissible under Chapter V C, but does not include Dearness Relief and Interim Relief;
3(p) ''pension'' includes gratuity except when the term pension is used in contradistinction to gratuity; but does not include dearness relief and Interim Relief.
Dearness Relief on Pension/Family Pension
(i) XX XX XX
(ii) The payment of Dearness Relief will remain suspended when the 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 Grant-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."
Indisputably, pension/family pension does not include
Dearness Relief and is admissible on pension/family pension as
defined u/R.77 of the Rules, 1996. Ordinarily, Dearness Relief
depends upon price rise & is always granted to the pensioners and
family pensioners but that remain subject to the condition that
Government may specify from time to time laying down
percentage of Dearness Allowance/Relief to which the pensioner/
family pensioner is entitled for as per Appendix-III but at the
same time, u/R.77(ii) of the Rules, 1996 payment of Dearness
Relief shall remain suspended when the family pensioner is
employed/re-employed either in a Central or State Government
Department or under any other Central or State Government
owned agencies.
The petitioners are being denied Dearness Relief on the
family pension on the premise that they are in employment of the
State Government.
The Apex Court had an occasion to consider the word
''employed'' or alike word, as being indicated in the R.77(ii) of the
Rules, 1996 & which was made to be a basis by the Government
of Haryana vide its circular dt.20.03.1980 whether could apply to
such of the family pensioners who are working on the post in their
own independent capacities could that employment would also
cover the matters as being indicated in terms of the word
''employed'' u/R.77(ii) of the Rules, 1996 as well and also taking
note of the R.55-A of the Central Civil Services (Pension) Rules,
1972 & while examining the issue in the case of H.S.E.B. &
Others Vs. Azad Kaur reported in (2000) 2 SCC 227, the Apex
Court observed that the word ''employed'' can refer to the kind of
employment which is secured by the widow or a family member
on account of or in the context of the death of the employee in
respect of whom family pension is being paid but in the case
where the widow or family member is independently in
employment even prior to the death of the employee, that cannot
deprive the family of the benefit of Dearness Relief on the family
pension. The extract of para 6 & 7 of the judgment being relevant
for the present purpose are reproduced ad infra:-
"6. The appellants have relied upon a letter dated 20.3.1980 from the Secretary to the Government, Finance Department, Government of Haryana circulated to all the Heads of the Departments 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 whenever 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 20.3.980. As the ratio of the judgment of this Court in Union of India v. G.Vasudevan Pillay shows, the principle on which ad hoc relief is withheld, is that if a recipient of a family pension has received an additional 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 20.3.1980 in that context can only refer to the kind of employment which is secured by the widow or a family member on account of or in the context of the death of the employee in respect of whom family pension is being paid. It can have no reference to any independent employment or any other independent source of livelihood which the family members may possess. The mere fact that the widow is independently 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.
Our attention is drawn to a decision of the Division Bench of the Punjab & Haryana High Court in the case of Swaran Kaur v. State of Punjab 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 withheld. 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 issue further came up before the Apex Court in Union of
India & Others Vs. Rekha Majhi reported in (2000) 10 SCC
659 but in that case the family pensioner who was appointed on
compassionate grounds in Railway Establishment & sub-rule (21)
of R.75 of the Railway Services (Pension) Rules, 1993 when came
up for consideration where denial to the family pensioner was in
regard to those who are in re-employment of Central or State
Government, the Apex Court further enlarged the scope of
employment and also construed that employment will also include
first regular appointment in the service. The extract of para 6 of
the judgment being relevant for the present purpose is reproduced
ad infra:-
"6. We have heard learned counsel for the parties. A perusal of Rule 75(21)(ii) shows that the object behind framing the Rule is that a pensioner cannot enjoy two dearness reliefs simultaneously, one on his pension and the other on his salary if he takes up re-employement, and, therefore, in such a situation to deny dearness relief on the pension. It is not disputed that the respondent is getting family pension and, therefore, she is a pensioner. That being the object of the Rule, we have to give a wider meaning to the expression "re- employed" which finds place in Rule 75(21)(ii) of the Rules. The expression "re-employed", if construed in the light of the object behind the Rule and facts of this case, would also include first regular appointment in the service."
At least those who are already in employment at the time of
death of their spouse and neither re-employed nor got
appointment on compassionate grounds, they could not be made
disentitled to claim Dearness Allowance/Relief on family pension.
The Central Government also vide its Office Memorandum
dt.02.07.1999 has made its clarification that such of the family
pensioners who are already employed and family pension is
received by the eligible dependents of the Central Government
employees, they are entitled for Dearness Relief at the rates
applicable from time to time & shall be admissible on their family
pension and this court considers it appropriate to quote the
extract of Office Memorandum dt.02.07.1999 being relevant for
the present purpose, which reads ad infra:-
"No. 45/73/97-P&PW(G)
Government of India
Ministry of Personnel, Public Grievances & Pensions
Department of Pension & Pensioners Welfare
Third Floor, Lok Nayak Bhavan,
Khan Market, New Delhi 110003
Date : 2nd July, 1999
OFFICE MEMORANDUM
Subject: Recommendations of the 5th Central Pay Commission-Payment of Dearness Relief to re employed pensioners and employed family pensioners- Decision regarding.
*******
In terms of the existing orders, Dearness Relief of pensioners and family pensioners is to remain suspended during the period a pensioner/family pensioner is re-employed/employed under the Central or State Government or in a Stationary Corporation/
Company/Body/Bank under them in India or abroad. These orders are also applicable to pensioners and family pensioners permanently absorbed in a Statutory Corporation/Company /Body/Bank under the Central or State Government.
In Paragraph 138.21 of their Report, the 5th Central Pay Commission had recommended that Dearness Relief should be paid to employed family pensioners and re-employed pensioners in cases where their pay is fixed at the minimum of the pay scale of the post of re-employment ignoring the entire pension, and that, in other cases of re-employment, Dearness Relief shall be payable on pay plus the non ignorable portion of pension as was the case at present. The Commission had further recommended in paragraph 141.12 that, with a view to maintaining the original value of the pension, the payment of Dearness Relief should not be suspended where pay is fixed at the minimum of the pay scale during employment/re- employment of a family pensioner/pensioner.
These recommendation have been considered and accepted by the Government. The President is accordingly pleased to decide as follows:
(a) In so far as re-employed pensioners are concerned, the entire pension admissible is to be ignored at present only in the case of those civilian pensioners who held posts below Group "A" and those ex- servicemen who held posts below the ranks of Commissioned Officers at the time of their retirement. Their pay, on re-employment, is to be fixed at the minimum of the pay scale of the post in which they are re-employed. Such civilian pensioners will consequently be entitled to Dearness Relief on their pension in terms of the recommendations of the 5th Central Pay Commission at the rates applicable from time to time.
(b) In terms of the existing order on the subject, the pay of re-employed pensioners who held Group "A" post or posts of the ranks of Commissioned Officers
at the time of their retirement is to be fixed at present.
- at the same stage as last drawn before retirement or, if there is no such stage, at the stage next above the pay last drawn.
- at the maximum of the pay scale, if the pay last drawn is more than the maximum of the pay scale of the post in which re-employed;
- at the maximum of the pay scale of the post in which re-employed. if it is more than the pay last drawn.
Further, the pay on re-employment is required to be fixed after ignoring only a portion of the pension [Rs. 1,500] received for the previous employment, In view of the fact that (i) the pension is taken into account in such cases and is not entirely ignore; (ii) the pay the post of re-employment is not required to be fixed at the minimum of the scale in all cases; and
(iii) Dearness Allowance at the rates applicable from time to time is also admissible on the pay fixed in terms of the orders on the subject, these re-employed pensioners will not be entitled, in addition, to any Dearness Relief on their pension.
(c) As regards employed family pensioners, since the family pension received by the eligible dependents of Central Government employees is in any case, not taken into account in determining their pay on employment, Dearness Relief at the rates applicable from time to time shall be admissible on their family pension.
(d) While implementing these decisions, orders issued by the Department of Personnel & Training vide OM No. 3/1/85-ESTT (Pay-II) dated 31.07.1986 and as amended from time to time regarding fixation of pay of re-employed pensioners shall be duly kept in view."
(Emphasis supplied.)
In furtherance Finance (Pension) Department, Government
of Tamil Nadu vide G.O.No.112 dt.24.03.2008 sanctioned
Dearness Allowance on family pension to those State Government
Family Pensioners who are already employed. The para-3 of the
G.O.No.112 dt.24.03.2008 being relevant for the present purpose
is reproduced ad infra:-
"3. Government after considering the above order of Government of India has decided to allow Dearness Family Pension wherever admissible and Dearness Allowance on family pension in the case of employed family pensioners. Accordingly, Government direct that Dearness Family Pension at the rate of 50% of Family Pension and Dearness Allowance on family pension including Dearness Family Pension wherever admissible shall be paid to all the employed family pensioners 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."
This very issue came up for consideration before the Division
Bench of Punjab & Haryana High Court in Amarjit Kaur Sodhi &
Others Vs. State of Punjab & Others reported in 2003(1) SLR
33 and para 3, 4 & 6 of the judgment being relevant are
reproduced ad infra:-
"3. The short grievance of the petitioners is that although the petitioners have been granted family pension but they have been denied dearness allowance on the family pension. The benefit of Dearness Allowance has been denied to the petitioners on the ground that they are already being granted Dearness Allowance on the salary they earn. Consequently, the petitioners were constrained to move this Court under Articles 226/227 of the Constitution of India for necessary directions by way of writ of mandamus.
Mr. R.C. Chatrath, learned counsel appearing for the petitioners, states that the controversy raised in this
petition is no longer res-integra as the matter is squarely covered by a Division Bench judgment of this Court in the case Swaran Kaur Vs. State of Punjab and others, 1997(1) RSJ 325 : [1996(3) SLR 644 (Pb. & Hry.)]. It is submitted that the case of the petitioners is para materia to the case of the petitioners Swaran Kaur. In this case also none of the petitioners have been employed on compassionate grounds.
XX XX XX
It is submitted by Shri R.C. Chatrath that the afore- said judgment in the case of Swaran Kaur has in fact been upheld by the Supreme Court in the case of H.S.E.B. and Ors. v. Azad Kaur, 2002(1) RSJ 402. In the aforesaid judgment, the Supreme Court has held as under:
"The appellants have relied upon a letter dated 20.3.1980 from the Secretary to the Government, Finance Department, Government of Haryana circulated to all the Heads of the Department under which it is clarified that the payment of adhoc relief on pension shall remain suspended when a person is in receipt of family pension/extra-ordinary pension is employed/re-employed. The appellants contend that whenever 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 20.3.1980. As the ratio of the judgment of this Court in Union of India v. G. Vasudevan Pillay and Others (supra) shows, the principles on which ad-hoc relief is withheld, is that if a recipient of a family pension has received an additional 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 20.3.1980 in that context can only refer to the kind of employment which is secured by the widow of a family member on account of or in the context of the death of the employee in respect
of whom family pension is being paid. It can have no reference to any independent employment or any other independent source of livelihood which the family members may possess. The mere fact that the widow is independently 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.
Our attention is drawn to a decision of the Division Bench of the Punjab and Haryana High Court in the case of Smt. Swaran Kaur v. The State of Punjab and Others., (CWP No. 17698/1995) reported in 1997(1) RSJ 325 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 withheld. 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."
While taking note of the scheme of Rules, 1996 and sub-rule
(ii) of R.77 in particular we are of the view that the word
''employed'' has been mis-understood/mis-interpreted by the
respondents and this may refer to the employment which is
secured by the widow or the family member on account of or in
the context of the death of the employee in respect of whom
family pension is being paid but if the family pensioner is
independently in employment or any other source of livelihood
which the family pensioner possess that may not deprive them
from the benefit of Dearness Allowance/Relief on the family
pension u/R.77(ii) of the Rules, 1996.
Indisputably, in the instant case, the petitioners are working
in the department of Education/College Education of the State of
Rajasthan in their independent capacities & their spouse were
working in the erstwhile RSEB/College Education when they died
in harness and none of the petitioner or the dependent is
appointed on compassionate grounds after the death of their
spouse and since their employment is not dependent upon the
death of their spouse who died in harness that would not deprive
the family pensioners of the benefit of Dearness Allowance/Relief
on family pension under the garb of R.77(ii) of the Rules, 1996.
Consequently, both the writ petitions succeed and are
allowed. The respondents are directed to grant Dearness
Allowance/Relief on the family pension to the petitioners in
accordance with the Rules, 1996. Let the revised pension be
computed within a period of two months of the receipt of copy of
this order and after the pension is re-computed, the arrears of the
family pension be released to the petitioners within two months
thereafter. It is made clear that if the arrears are not paid within
the period stipulated above, the petitioners shall be entitled to
receive the aforesaid benefits with interest @ 12% p.a. from the
date it became due until actual payment.
Both the writ petitions are disposed of accordingly. No costs.