IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 12566 of 2008 Date of decision: 31.08.2011 ________________________________________________________________ Sanjana Dogar. .....Petitioner. Versus The State of H.P. & others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. ________________________________________________________________ For the petitioner: Mr. Dushyant Dadwal, Advocate. For the respondents: Mr. P.K. Sharma, Addl. AG with Mr. Anil Jaswal, Dy. AG, for respondents No. 1 to 4. Mr. Varun Chandel, Advocate, vice Mr. Sandeep Sharma, ASGI, for respondent No. 5. Mr. Parveen Chandel, Advocate vice Mr. Ajay Sharma, Advocate, for respondent No. 6. V.K. Sharma, J. (Oral). The petition has been filed on the following prayers vide para 7(i) to (iii): “7(i) That the act of the respondents in not providing the dearness allowance/relief to the applicant on family pension may kindly be declared illegal, arbitrary, contrary, unreasonable, unwarranted, unconstitutional and unsustainable in the eyes of law. (ii) That the office memorandum dated 22-1-2001 (Annexure/A-1) issued by the respondent No. 1 may kindly be quashed. (iii) That the respondents may please be directed to 1 Whether reporters of Local Papers may be allowed to see the judgment? No. ...2... provide the dearness relief/allowance to the applicant on the family pension w.e.f. 6-8-2002 alongwith interest @ 18@ per annum.” 2. In reply, respondents No. 1 to 4 have taken the following stand vide paras 3 and 6(v): “3. That the present application is made by the applicant for claiming Dearness allowance/relief on the pension of her husband, being family pension. But the fact is that the applicant is not entitled to get the dearness allowance on the Family Pension (As per the Judgment of Hon'ble Supreme Court of India in the case of Union of India and others Vs. Rekha Majhi (AIR-2000 SC 1562 and instruction issued vide Finance Department OM No. Fin.-C-D (1)-1/2000 (Annexed R-1). That the respondent No. 2, 3 & 4 have not been vested with any right to provide her dearness allowance/relief on the pension benefits. Keeping in view the existing Govt. rules, such cases of the respondent, is wholly legal, reasonable, justified, constitutional and sustainable in the present from. Thus, the letter in spirit of Shimla 22 (Annexure-A) issued by the competent authority on the subject matter does not serve the purpose of allowing dearness relief to the applicant. In view of this, the Original application of the applicant is liable to be dismissed in the eyes of the law. 6(v) That the contents of the sub-para are denied as wrong, superfluous and prevaricated. It is a well settled law that it is the prerogative of the employer to settle such type of case, under administrative exigencies. That a Govt. servant has no any vested right to derive two types of financial benefits. Moreover, the instructions issued pertaining to given appointment on compassionate grounds and the payment of the dearness relief in those cases could not become admissible from the date 22/1/2001 issued by the respondent No. 1 which is already mentioned in the Annexure-A1. Thus, this OA is liable to be dismissed as is bad in the eyes of the law.” 3. The following averments have been set up on behalf of respondent No. 5 vide paras 6,7 and 8 of the reply: “6. In reply to this para it is respectfully submitted that averments are mainly against respondent Nos. 1 to 4 in terms of Govt. of H.P. Finance Deptt. (Pension) O.M dated 22/1/2001 ...3... (Annexure-A-2) issued by respondent no. 1 which prohibits payment of D.A on family pension to the family pensioners who have been given appointment on compassionate grounds. In this connection it is submitted that family pension was authorized in favour of the applicant on account of death of her husband who was working in the office of Divisional Forest Officer, Banjar vide P.P.O No. 13902/F/H.P on 2/8/2001. Thereafter as averred in the Original Application, the applicant was appointed clerk on compassionate grounds. The applicant has now contended for not allowing D.A on family pension. The pensioner was entitled for payment of FIP(DA) up to the date prior to the date of her appointment in Govt. service on compassionate grounds. As para 3 of OM No. Fin-CD(1)-1/2000 dated 22-01-2001 no. RIP(DA) is admissible to the family pensioner w.e.f. 6/8/2002. 7&8. In view of submissions made in para 6 supra, the applicant is not entitled to any relief from the replying respondent. The impugned orders dated 22/01/2001 (Annexure-A-2) and not Annexure-A-I sought to be quashed by the applicant has been issued by respondent No. 1. 4. The stand on behalf of respondent No. 6, as per paras 7 and 8 of its reply, is as under: “7. It is submitted that the replying respondent No. 6 is providing the family pension to the applicant and that the Dearness Allowance/Relief is not provided to the applicant on family pension as per the Office Memorandum dated 22.1.2001 issued by the respondent no. 1 (Annexure/A-2). It is submitted that the applicant was never compelled by the replying respondent as alleged nor she has been wrongly deprived of the Dearness Allowance. In reply to these paras, it is submitted that as per the office Memorandum dated 22.1.2001 (Annexure/A-2), the applicant, who has been appointed on compassionate grounds will not be entitled for Dearness Relief on family pension. Hence, denial of Dearness Allowance on family pension to the applicant is not an illegal, ...4... arbitrary, contrary or unsustainable act in the eyes of law as alleged.” 5. Rejoinder refuting the above stand on behalf of respondents No. 1 to 4 and reiterating the averments set up in the petition has been filed. 6. The husband of the petitioner, late Shri Sanjay Dogar, was serving the respondent-Forest Department as clerk, who unfortunately died during harness on 02.08.2001. Consequently, the petitioner, being wife of the deceased employee, was appointed as clerk in the respondent-Forest Department on compassionate ground. However, in terms of Office Memorandum dated 22.01.2001, Annexure A-2, payment of Dearness Relief on family pension has been disallowed to her during the period of re- employment, which has been challenged by her on the basis of Instructions (2)2 and 3(a) appended to Rule 55-A of the central Civil Services (Pension) Rules 1972 (in short the 'Pension Rules'), which are as under: “(2)2. In Paragraph 138.21 of their Report, the Fifth 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 was 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 suspended where pay is fixed at the minimum of the pay scale during employment/re-employment of a family pensioner/pensioner.” ...5... 3(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 Fifth Central Pay Commission at the rates applicable from time to time. 7. In view of the above, the petition is disposed of with a direction to the respondents/competent authority to consider the case of the petitioner for grant of Dearness Relief on family pension alongwith consequential benefits, including arrears, if any, in terms of aforesaid Instructions (2)2 and 3(a) within three months from the date of production of copy of this judgment by the petitioner to the respondents/competent authority. 8. The petition stands disposed of in the above terms, so also pending CMP(s), if any. (V.K. Sharma) Judge 31st August, 2011 (virender)