CWP No. 6310 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 6310 of 2006 DATE OF DECISION: May 24, 2011 Pankaj Sharma and others .........PETITIONER(S) VERSUS State of Punjab and others ......RESPONDENT(S) CORAM:HON'BLE MR. JUSTICE AJAI LAMBA Present: Mr. Viney Puri, Advocate, for Mr. D.K. Bhatti, Advocate, for the petitioner(s). Mr. G.S. Attariwala, Addl. A.G., Punjab. None for respondents no. 5 to 7. AJAI LAMBA, J. (ORAL) 1. This petition under Articles 226 and 227 of the Constitution of India has been filed praying for issuance of a writ in the nature of mandamus directing the respondent-authorities to prospectively fix the family pension of the petitioners as per Rules after deducting dearness allowance and further the respondents be directed not to recover excess amount already paid to the petitioners. 2. It has been pleaded that husbands of the petitioners were serving the official respondents and died in harness. Family pension was being paid. Subsequently, however, family members from the families of the petitioners were given appointment on compassionate grounds. Under instructions of the respondent-State, after such appointment is given, dearness allowance on family pension is not payable, which, however, was CWP No. 6310 of 2006 2 continued to be paid. Learned counsel contends that at this stage, recovery is sought to be effected from the pension of the petitioners. It has further been pleaded that the case is covered by law settled by a Division Bench of this Court, while dealing with CWP 891 of 2003 (Mukhtiar Singh v. State of Punjab and others) decided on 20.1.2004. 3. Learned counsel for the respondent-State contends that, indeed, the issue is covered by the judgment in Mukhtiar Singh's case (supra). It has been stated that the petitioners would be entitled to a limited relief. For prospective purposes, Dearness Allowance on family pension would not be payable. The respondents, however, cannot effect any recovery. 4. I have considered the issue. 5. In Mukhtiar Singh's case (supra), the following has been held by this Court:- “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. 6310 of 2006 3 6. Accordingly, the petition is allowed in the same terms as in CWP 891 of 2003 (Mukhtiar Singh v. State of Punjab and others) decided on 20.1.2004, relevant portion whereof has been extracted above. It is directed that the respondents would have no right to effect recovery from the petitioner of the amount already paid as Dearness Allowance on family pension. Consequently, the amount, if any, recovered from the petitioner by way of deduction, in the interregnum period, shall be refunded by the respondents to the petitioner within four months of receipt of certified copy of this order. 24.05.2011 (AJAI LAMBA) shivani JUDGE 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?