IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 12565 of 2008. [OA (D) No.436 of 2005] Date of Decision: 22nd September, 2011. _______________________________________________________ Smt. Geeta Devi ….Petitioner. Versus State of Himachal Pradesh and others. …Respondents. Coram Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the petitioner: Mr. Dushyant Dadwal, Advocate. For respondents No.1 to 4: Mr. A.K. Bansal, Additional Advocate General and Mr. P.M. Negi, Deputy Advocate General. For respondent No.5: Ms. Anita Dogra, Central Government Counsel. For respondent No.6: Mr. Ajay Sharma, Advocate. _________________________________________________________ Surinder Singh, J. (Oral). The petitioner, in the instant petition seeks the quashment of Annexure A-1 dated 22.1.2001 whereby the grant of Dearness Relief on pension to re-employed pensioners/family pensioners is not admissible to employed/re-employed family pensioners who have been given appointment on compassionate grounds. 2. As per Government of India’s Decision below Rule 55-A of the CCS (Pension) Rules, the Dearness 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - Relief was held to be admissible. The relevant extract is reproduced below: “(1)……….. (2) Dearness Relief admissible when pay on re-employment is fixed at the minimum ignoring the full pension and to all employed family pensioners.- In terms of the existing orders, Dearness Relief to pensioners and family pensioners is to remain suspended during the period a pensioner/family pensioner is re-employed/employed under the Central or State Government or in a Statutory Corporation/ Company /Body/Bank under them in India or abroad. These orders are also applicable to pensioners and family pensioners permanently absorbed in a Statutory Corporation/Company /Body/Bank under the Central or State Government. 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 as 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 be suspended where pay is fixed at the minimum of the pay scale during employment/re-employment of a family pensioner/pensioner. 3. These recommendations have been considered and accepted by the Government. The President is accordingly pleased to decide as follows:- (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 - 3 - 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. (b) In terms of the existing orders on the subject, the pay of re-employed pensioners who held Group ‘A’ post or posts of the ranks of Commissioned Officers at the time of their retirement is to be fixed at present. - at the same stage as last drawn before retirement or, if there is no such stage, at the stage next above the pay last drawn; - at the maximum of the pay scale, if the pay last drawn is more than the maximum of the pay scale of the post in which re-employed; - at the minimum of the pay scale of the post in which re-employed, if it is more than the pay last drawn. Further, the pay on re-employment is required to be fixed after ignoring only a portion of the pension [` 1,500] [now ` 4,000- see GID (3) below this rule] received for the previous employment. In view of the fact that (i) the pension is taken into account in such cases and is not entirely ignored; (ii) the pay in the post of re-employment is not required to be fixed at the minimum of the scale in all cases; and (iii) Dearness Allowance at the rates applicable from time to time is also admissible on the pay fixed in terms of the orders on the subject, these –re-employed pensioners will not be entitled, in addition, to any Dearness Relief on their pension. (c) As regards employed family pensioners, since the family pension received by the eligible dependants of Central Government employees is, in any case, not taken into account in determining their pay on employment, Dearness Relief at the rates applicable from time to time shall be admissible on their family pension. (d) While implementing these decisions, orders issued by the Department of Personnel and Training vide O.M. No. 3/1/85-Estt. (Pay-II), dated 31.7.1986 and as amended from time to time regarding fixation of pay of re-employed pensioners shall be duly kept in view. - 4 - (e) These orders shall be effective from July 18,1997. 4. (I) In accordance with the Government’s decisions, referred to in the preceding paragraph, all family pensioners, in receipt of family pension from the Central Government who were/are employed under the Central Government or the State Government or a Corporation/ Company/Body/ Bank under them in India or abroad shall be eligible to draw Dearness Relief, at rates applicable from time to time, on the amount of family pension, with effect from July 18, 1997. A certificate may still be necessary to determine dependency. All Pension Payment Authorities, including authorized Public Sector Banks are requested to forthwith release Dearness Relief on family pensions in cases where this was withheld on account of the family pensioners concerned being employed. The arrears, if any, due with effect from July 18, 1997 shall also be paid. (II) (a) In the case of Central Government pensioners who were/are re-employed under the Central Government or the State Government or a Corporation/Company/Body/Bank including an Autonomous Organization under them in India or abroad or had/have been permanently absorbed in such Corporation /Company Body/Bank or Autonomous Organization, Dearness Relief will now be admissible to such of those re-employed pensioners who satisfy the conditions referred to in Para. 3 (a) above. For this purpose, the Central Government Departments concerned, including Subordinate Organizations, State Government, Corporation/Company/Body/Bank, etc., employing a Central Government pensioner shall be required to issue of certificate indicating the following: (i) The re-employed pensioner retired from a civil or military post in the Central Government and was holding a post not included in classified as Group ‘A’ or a post below the rank of Commissioned Officer in the armed forces; - 5 - (ii) The entire amount of pension sanctioned by the Central Government was ignored in fixation of the pay on re-employment, i.e., no part of the pension was taken into account in such fixation of pay in the pay scale of the post in which the Central Government retired/retiree officer was re- employed/absorbed; (iii) The pay of the re-employed/absorbed was/is fixed at the minimum of the pay scale of the post in which he had/has been initially re-employed after his retirement from the Central Government. (b) All Central Government Ministries/Departments /Organizations shall bring these orders to the notice of all Central Government pensioners who happened to be re-employed by them as on July 18, 1997 or were/are re-employed subsequently. In case such re- employed pensioners satisfy the conditions referred to above, the necessary certificate on the above lines shall be issued after verification from the details referred to in Para 17 of the Central Civil Services (Fixation of Pay of Re-employed Pensioners) Order, 1986, issued vide Department of Personnel and Training O.M. No.3/1/85-Estt. (Pay-II), dated 31.7.1986 and as amended from time to time. (c) The Pension Disbursing Authority shall release Dearness Relief on pension to those re-employed pensioners who submit the certificate referred to above. (d) In al other cases of re-employed pensioners, no Dearness Relief shall be admissible on pension during the period of their re-employment. Payment of Dearness Relief in these cases shall become admissible only with effect from the date they cease to be re-employed. (e) The Pension Disbursing Authority shall require such a pensioner to produce a certificate cessation of re- employment from the office in which he had been re- employed. 5. Formal amendment of the Central Civil Services (Pension) Rules, 1972, is being issued separately. - 6 - 6. CPAO may take immediate action to suitably amend the relevant provisions of the Scheme for Payment of Pension to Central Government Civil Pensioners, including the pro forma at Annexure-XVII and notify the same to all Public Sector Banks disbursing pension to Central Government pensioners/ family pensioners. A copy of the notification may be endorsed to this Department. (3) Payment of Dearness Relief to re-employment pensioners and employed family pensioners.- The undersigned is directed to say that the grant of DR to re- employed pensioners/family pensioners is presently regulated in accordance with the instructions contained in this Department’s O.M. No.45/73/97-P&PW (G), dated 2.7.1999. Consequent upon the revision in ignorable amount of pension from ` 1,500/- to ` 4,000/- in terms of DoP&T, O.M. No.3/13/2008-Estt.(Pay-I) [Should be (Pay-II)], dated 11.11.2008, the amount of ` 1,500/- appeared in OM, dated 2.7.1999 is revised as ` 4,000/-. The other conditions for grant of DR to re-employed pensioner/ family pensioner remain the same. 2. In so far as persons serving in the Indian Audit and Accounts Department are concerned, these orders are being issued after consultation with the CAG of India. 3. This issues with the concurrence of Ministry of Finance, Department of Expenditure vide their U.O. No.132/E.V/2009, dated 21.4.2009 and DoP&T vide their U.O. No.3/16/2009- Estt. (Pay-II), dated 23.6.2009.” 3. Learned Counsel for the petitioner stated at Bar that vide Notification No.3/20/2010(Finance)/1203 dated 4.10.2010, Punjab Government has reviewed its earlier decision on the basis of Government of India’s decision referred to above whereby they granted the benefit of DR to the re-employed pensioners/ family pensioners who have been given - 7 - compassionate appointment. The copy of the said notification is placed on record and a copy is supplied to the learned Additional Advocate General. 4. In view of this, respondents No.1 to 4 are hereby directed to consider the case of the petitioner and take a decision in the matter within two months from the production of copy of this judgment and if the petitioner is held entitled for the DR, it be released to her, within next two months with consequential benefits. The matter stands disposed of. Copy DASTI on usual terms. September 22, 2011. (Surinder Singh), J. (rc)