IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1208 of 2006 1. BHARTI SINHA 2. MAHIMA KUMARI, both D/o-Smt. Neelam Sinha residentidint at present Rabindra Prasad Sinha C/o- Shailendra Prasad Sinha, resident of village Indupur, P.S.-Barhiya, District-Lakhisarai Versus 1. THE STATE OF BIHAR through the Secretary, Department of Secondary Education, Govt. of Bihar, Patna. 2. The Director, Department of Secondary Education Govt. of Bihar, Patna. 3. The Treasury Officer, Lakhisarai. 4. The Accountant General, Bihar Patna. 5. The District Education Officer, Hazaribagh, Jharkhand. 6. The Director, Secondary Incharge (Sanskrit) Patna. ----------- 11 05.03.2010 Learned counsel for the petitioner is directed to add the Director, Secondary Incharge (Sanskrit), Patna as respondent No.6 to the present writ petition. Heard Mr. Pramod Kumar learned counsel for the petitioner and Mr. Manoj Kumar Jha, A.C. to G.A.1 for the State, Mr. Dhruba Mukherjee learned counsel for the State of Jharkhand and Mr. Sanjay Kumar learned counsel for the Accountant General. The only issue which requires determination in the present writ petition is whether the original petitioner who herself was employed in the Womens Teachers Training 2 College, was entitled to payment of dearness allowance on the amount of family pension being drawn by her. The husband of the original petitioner late Narendra Kumar Sinha had died in harness as a Sanskrit Teacher, on 21.1.1988. Although the family pension relating to the late husband of the original petitioner was finalized after a lapse of about 10 years but it was restricted to only the basic pension and the amount of dearness allowance was not being paid on grounds that she was already employed. It also appears that the original petitioner was not paid family pension for the period 21.1.1988 until 1.3.1989. It is in these circumstances the present writ petition came to be filed. A counter affidavit was filed on behalf of the State of Jharkhand on the last occasion and in paragraph 8 thereof it was clearly stated that the original petitioner Neelam Sinha wife of late Narendra Kumar Sinha was in Government service even prior to the death of Narendra Kumar Sinha. It was further stated that she was not appointed on compassionate grounds. It was thus stated that necessary action has now to be taken at the stage of the Director 3 (Sanskrit), Department of Education in the Directorate of Secondary Education, Government of Bihar, Patna who is fully empowered to take final decision in the matter. In view of the statement made in the counter affidavit filed on behalf of the State of Jharkhand it is now clear beyond any doubt that the original petitioner was in service even prior to the death of her husband and thus the non payment of the dearness allowance to the original petitioner was not proper. The issue in fact stands concluded by a Division Bench judgment of this Court reported in 2002(3) PLJR 527. The Division Bench held that in such of the cases where the person is independently employed, the authorities cannot withhold the payment of the dearness allowance on the family pension admissible to him/her. Unfortunately, the original petitioner has expired during the pendency of the proceeding on 22.3.2008 and has been substituted by her legal heirs who are on the record of the proceedings. Following the judgments and order of the Division Bench of this Court (supra), this writ petition is allowed and the newly added 4 respondent No.6 Director (Sanskrit) in the Directorate of Secondary Education is directed to take appropriate steps for refixation of the family pension of the original petitioner and to recalculate the same after including the element of dearness allowance w.e.f 21.1.1988 until 22.3.2008 and pay the said amount after adjusting the amount of family pension already drawn by the original petitioner within a period of three months from the date of production of a copy of this order. The amount should be equally distributed between substituted heirs of the original petitioner namely, Bharti Sinha and Mahima Kumari,. A further claim has been raised towards the amount deposited in the suspense account of late Narendra Kumar Sinha. The said pending claim would also be enquired into by the Director (Sanskrit) in the Directorate of Secondary, Bihar, Patna and if found admissible, be disbursed to the substituted petitioners. The writ petition is allowed with the direction aforesaid. Bibhash (Jyoti Saran, J. )