IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Writ Petition No.14059 of 2009 Date of Decision: September 09, 2009 Nirmla Devi .....PETITIONER(S) VERSUS State of Punjab & Others .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. R.K. Arora, Advocate, for the petitioner. Mr. B.S. Chahal, Deputy Advocate General, Punjab, for the respondents. . . . AJAI LAMBA, J (Oral) In this petition filed under Article 226/227 of the Constitution of India, prayer is for issuance of a writ in the nature of certiorari, quashing action of the respondents in effecting recovery from Family Pension of the petitioner on account of alleged excess payment of Dearness Allowance paid on Family Pension. It has been pleaded that husband of the petitioner namely Rajinder Kumar was serving the respondents. He expired while in service on 14.6.1990. Family Pension was released in favour CWP No.14059 of 2009 [2] of the petitioner alongwith Dearness Allowance on Family Pension. Bharat Bhushan son of the petitioner was given appointment on compassionate ground as Clerk in the same department i.e. Department of Ayurvedic, Punjab on 8.4.1996. Be that as it may, the respondents continued to pay Dearness Allowance on Family Pension to the petitioner. It seems that some instructions were issued by the respondents holding thereby that in cases where compassionate appointment is given to one of the family members, Dearness Allowance would not be payable on the Family Pension to the surviving spouse. Considering the said instructions, recovery is being effected from the Family Pension by way of impugned action of the respondents. Learned counsel for the petitioner contends that the issue has already been considered by Division Bench of this Court while dealing with Civil Writ Petition No.891 of 2003 titled ‘Mukhtiar Singh vs. State of Punjab & Others’ decided on 20.1.2004. Notice of motion. On the asking of the Court, Mr. B.S. Chahal, Deputy Advocate General, Punjab, CWP No.14059 of 2009 [3] accepts notice on behalf of the respondents. Heard. Learned counsel for the respondents admits that the matter is covered by the judgment rendered in Mukhtiar Singh’s case (supra). Learned counsel has further pointed out that the State had gone up in appeal in the Hon’ble Supreme Court of India against judgment rendered in Mukhtiar Singh’s case (supra). The appeal, however, has been dismissed. In Mukhtiar Singh’s case (supra), the following has been held:- In so far as the first issue is concerned, the controversy in hand stands adjudicated upon the Apex Court in H.S.E.B. and Ors. Versus Azad Kaur (Civil Appeal No.5835 of 1998, decided on 18.8.1999). In view of the determination of the Apex Court on the issue under reference, we are satisfied that the claim of the petitioners for dearness allowance on family pension is misconceived. The first contention of the petitioner is, therefore, not accepted. The second issue relates to the recovery of dearness allowance wrongfully paid to the petitioners. It is not a matter of dispute between the parties that the payment of dearness allowance to the petitioners was not based on any misrepresentation at their hands. It is clear that dearness allowance was wrongfully paid to the petitioners by the respondents unilaterally. That being so, in view of the decision rendered by the Apex Court in Sahib Ram Versus The State of Haryana and others, 1994 (5) SLR 753, we are satisfied that the recovery should not be effected from the petitioners. In view of the above, the instant writ petitions are dismissed in so far as the claim of the petitioners for dearness allowance on family pension is concerned, however, the prayer of the petitioners is allowed in respect of the recovery sought to be made from them. In case any recovery has been made from the petitioners in the interregnum, the same shall be refunded to the petitioners within a period of four months from today. Disposed of in the aforesaid terms.” CWP No.14059 of 2009 [4] Considering the facts and circumstances of the case, this petition is allowed in the same limited terms as decision rendered in Civil Writ Petition No.891 of 2003 titled ‘Mukhtiar Singh vs. State of Punjab & Others’ decided on 20.1.2004, relevant portion of which has been extracted above. (AJAI LAMBA) September 09, 2009 JUDGE Avin 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?