IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.08.2008 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.No.25057 of 2006 (O.A.No.5167 of 1999) V.Gowrammal ... Petitioner Versus 1. The Sub-Treasury Officer, Sub-Treasury, Krishnagiri, Dharmapuri District. 2. The Assistant Educational Officer, Krishnagiri, Dharmapuri District. 3. The Accountant General of Tamil nadu, 261, Anna Salai, Madras ... Respondents This petition came to be numbered by transfer of O.A.No.5167 of 1996 from the file of the Tamil Nadu Administrative Tribunal praying for Certiorarified Mandamus to call for the records in pursuant to the impugned order of recovery, passed by the first respondent, dated 30.08.1996, quash the same and to direct the respondents to pay the Dearness Allowance to the Family Pension which was already paid to the petitioner continuously. For Petitioner : Mr.S.M.Subramaniam For Respondents : Mr.S.Gopinathan, Addl. Government Pleader O R D E R The petitioner has challenged the impugned order of recovery, passed by the first respondent, dated 30.08.1996 and sought for a direction to the respondents to pay the Dearness Allowance to the Family Pension, which was already paid to her continuously. 2. Facts of this case are as follows: The petitioner was working as B.T. Assistant in Government Higher Secondary School, Kaveripattinam, Dharmapuri District. Her husband, who was a Tamil Teacher in Government School, died in harness on 04.09.1993 and consequent to his death, she was granted Family Pension along with the Dearness Allowance. However, without any notice, the first respondent, by order dated 30.08.1996, suspended the Dearness Allowance granted to the petitioner with effect from 16.03.1996, applying G.O.Ms.No.191, Fin/Pen/Dept, dated 16.03.1996. In the said order dated 30.08.1996, it was directed to make arrangements for recovery of Dearness Allowance, which was already paid to the petitioner along with the pension from 16.03.1996 to 30.06.1996, to the tune of Rs.4,464/-, treating the same as overpayment, in instalments from the Family Pension at the rate of Rs.400/- per month from 01.07.1996. Aggrieved by the order of suspension of Dearness Allowance and recovery, the petitioner has preferred Original Application before the Tamil Nadu Administrative Tribunal, which has been subsequently transferred to this Court and renumbered as present Writ Petition. 3. The first respondent in his counter affidavit has stated that pursuant to the death of the petitioner's husband on 04.09.1993, the petitioner was sanctioned Family Pension as per the Rules. According to him, the family pensioner, who was already employed/re-employed had been drawing Dearness Allowance with her Family Pension regularly upto 15.03.1996. The decision of the Supreme Court in Civil Appeal Nos.3542 to 46 of 1990, dated 08.12.1994 adopted and the Government issued orders in G.O.Ms.No.191, Fin/Pen/Dept, dated 16.03.1996, that Dearness Allowance on pension and family pension cannot be granted for pensioners during the period of employment/re-employment, from the date of issue of the order. In view of the said orders, the first respondent has contended that the petitioner is not eligible for Dearness Allowance with Family Pension and the order of recovery be sustained. 4. On this day, when the matter came up for hearing, Mr.S.M.Subramaniam, learned counsel for the petitioner submitted that the decision relied on by the Government in Union of India v. G.Vasudevan Pillay reported in 1995 (2) SCC 32, has been lateron clarified by the Supreme Court in H.S.E.B. v. Azad Kaur reported in 2000 (2) SCC 227 and therefore, the former decision is not applicable to the petitioner, who is independently employed even prior to the death of her husband. 5. Referring to a decision of this Court in P.Victor Joseph Raj v. Accountant General reported in 2006 (4) MLJ 41, learned counsel for the petitioner submitted that G.O.Ms.No.191, Fin/Pen/Dept, dated 16.03.1996, which is said to be an impediment for payment of Dearness Allowance has already been set aside by this Court, following the decision in H.S.E.B.'s case, and therefore, the impugned order has to be set aside. As Dearness Allowance had already been recovered from the Family Pension, due and payable to the petitioner, the same has to be refunded forthwith. Heard the learned counsel for the petitioner and perused the materials available on record. 6. The Supreme Court in H.S.E.B. v. Azad Kaur reported in 2000 (2) SCC 227, after considering the earlier decision on payment of Dearness Allowance on pension, at Paragraph 7, held as follows: "7. 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 reported in 3 (1997) 1 RSJ 325 (P&H) (DB) 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." 7. While testing the correctness of G.O.Ms.No.191, Fin/Pen/Dept, dated 16.03.1996, this Court, by distinguishing the decision in Union of India v. G.Vasudevan Pillai reported in 1995 (2) SCC 32, with H.S.E.B. v. Azad Kaur reported in 2000 (2) SCC 227, struck down the above said Government Order and at Paragraph 9, held as follows: "the impugned G.O.Ms.No.191, dated 16.03.1996 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." While doing so, this Court, had also directed the respondents therein to restore family pension with Dearness Allowance sanctioned to the petitioner therein. 8. As G.O.Ms.No.191, dated 16.03.1996, which stood as an impediment for grant of Dearness Allowance with Pension, has already been struck down by this Court in P.Victor Jeseph Raj's case and in view of the law laid down by the Supreme Court in H.S.E.B's case, holding that, if a person is already employed prior to his/her spouse and the said person is entitled to Family Pension along with Dearness Allowance, the impugned order has no legs to stand and consequently, liable to be set aside. Accordingly the impugned order is set aside. The respondents are directed to restore Family Pension along with Dearness Allowance from the date of their entitlement. Insofar as the amount already recovered, the respondents are directed to refund the same forthwith. The arrears of Family pension, payable to the petitioner from 16.03.1996, shall be calculated on or before 30.09.2008 and paid within one month from the date of receipt of a copy of this order. In future, the respondents are directed to pay Family Pension along with the Dearness Allowance to the petitioner. 9. In the result, the Writ Petition is allowed with the above directions. No costs. 25.08.2008 Index: Yes skm To 1. The Sub-Treasury Officer, Sub-Treasury, Krishnagiri, Dharmapuri District. 2. The Assistant Educational Officer, Krishnagiri, Dharmapuri District. 3. The Accountant General of Tamil nadu, 261, Anna Salai, Madras. S. MANIKUMAR, J. skm W.P.No.25057 OF 2006 25.08.2008