RSA No.62 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.62 of 2010 Date of Decision: 14.09.2010 Haryana State and others .....Appellants Versus Poonam Devi ……Respondent Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Narender Singh, DAG, Haryana for the appellants. Mr. Kulbhushan Sharma, Advocate for the respondent. L. N. MITTAL, J (ORAL) Defendants-Haryana State and its officers, having failed in both the Courts below, have come in second appeal. Respondent-plaintiff-Poonam Devi filed suit against the defendants/appellants. Plaintiff's husband died in harness on 02.08.2001 while in service of the appellants. Family pension was sanctioned to the plaintiff. She was also granted compassionate appointment in lieu of death of her husband. The plaintiff filed suit seeking dearness relief on the family pension which was being denied to her by the defendants on the ground that she was getting dearness allowance on her salary. The defendants pleaded that vide Government instructions dated 31.01.2001, dearness relief on family pension was not admissible to family pensioner, who had been given compassionate appointment in lieu of death of the employee in whose respect family pension was sanctioned. Consequently, plaintiff RSA No.62 of 2010 -2- was not entitled to dearness relief on family pension. However, vide subsequent instructions dated 02.01.2006, dearness relief on family pension has been granted even to the aforesaid category of employees with effect from 12.12.2005. Learned Civil Judge (Senior Division), Rewari vide judgment and decree dated 11.02.2009 decreed the suit directing the defendants to sanction dearness allowance on family pension of the plaintiff from the date of sanction of the pension along with arrears and interest at the rate of 12% per annum till realisation. First appeal preferred by the defendants has been dismissed by learned District Judge, Rewari vide judgment and decree dated 07.08.2009. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. At the outset, it has to be noticed that in view of Government instructions dated 02.01.2006 as pleaded by the defendants themselves, the plaintiff is entitled to dearness relief on family pension with effect from 12.12.2005. Consequently, judgments and decrees of the Courts below to this extent have to be affirmed and upheld. It is ordered accordingly. Learned counsel for the appellants contended that suit was filed by the plaintiff on 06.01.2007 and, therefore, suit for arrears of dearness relief of family pension exceeding 3 years and 2 months preceding the filing of the suit was barred by limitation. Learned counsel for the plaintiff-respondent, however, contended that no such plea was raised in the written statement. RSA No.62 of 2010 -3- However, in view of Section 3 of the Limitation Act, suit instituted after expiry of limitation period has to be dismissed even if bar of limitation is not raised as a defence in the written statement. Consequently, plaintiff's suit regarding arrears of dearness relief on family pension exceeding 3 years and 2 months preceding the filing of the suit was barred by limitation and cannot be allowed in any case. On merits, learned counsel for the appellants contended that in view of instructions dated 31.01.2001, the plaintiff is not entitled to dearness relief on family pension till 12.12.2005 since when she became entitled to the same in view of subsequent instructions dated 02.01.2006. In support of this contention, learned counsel for the appellants has placed reliance on two judgments of Hon'ble Supreme Court in the cases of Union of India and others versus G.Vasudevan Pillay and others, (1995) 2 Supreme Court Cases 32 and Union of India and others versus Rekha Majhi, (2000) 10 Supreme Court Cases 659. On the contrary, learned counsel for the plaintiff- respondent has placed reliance on Division Bench Judgment of this Court in the case of Smt. Swaran Kaur versus The State of Punjab and others, 1997(1) Recent Service Judgments 325 and contended that the plaintiff respondent is entitled to dearness relief on family pension, notwithstanding that she is getting dearness allowance on her salary. I have carefully considered the rival contentions. Instructions dated 31.01.2001 issued by the Government clearly RSA No.62 of 2010 -4- stipulate that an employee, who has been provided employment on compassionate ground in lieu of death of the employee in whose respect the family pension is sanctioned, would not be entitled to dearness relief on family pension. In view of said Government instructions, the plaintiff respondent is not entitled to dearness relief on the family pension till before 12.12.2005. In the case of Rekha Majhi (supra), relevant Rule 75(21) provided that a pensioner on remployment shall not be entitled to dearness relief on pension or family pension. Hon'ble Apex Court held that in view of said Rule, even a family pensioner employed for the first time (not re-employed) would not be entitled to dearness relief on family pension if the employment was on compassionate ground in lieu of death of the employee in whose respect family pension was sanctioned. Rule 75 (21) in that case was not specifically applicable to employees, granted compassionate employment, but was applicable only to employees taking reemployment. However, nevertheless, even employee granted compassionate appointment was held not entitled to dearness relief on family pension. Learned counsel for the respondent contended that instructions dated 31.01.2001 cannot be equated with service rule. The contention cannot be accepted. Firstly if the Rules are silent on a subject, the gap can be filled or provided by the instructions. Secondly, in the case of G.Vasudevan Pillay (supra), Rule 55-A denying dearness relief on pension was not applicable to Exservicemen reemployed in Civil posts. However, Hon'ble Supreme Court on the basis of office memorandums (Government Instructions) held that Ex-servicemen remployed in Civil RSA No.62 of 2010 -5- posts are also not entitled to dearness relief on pension in view of Government Instructions. Consequently in the instant case also, in view of Government instructions dated 31.01.2001, the plaintiff was not entitled to dearness relief on family pension till before 12.12.2005. The case of Sawarn Kaur (supra) relied on by counsel for the plaintiff respondent is not applicable to the facts of the instant case. In that case, wife of the deceased employee was already employed in her own right while her husband was still alive and no family member of the deceased employee had been provided compassionate appointment. Consequently, the said judgment is not applicable to the instant case, because in the instant case, the plaintiff was granted compassionate appointment in lieu of death of her husband. Secondly judgment in the case of Sawarn Kaur (supra) cannot be followed in view of judgments of Hon'ble Supreme Court in the cases of G.Vasudevan Pillay (supra) and Rekha Majhi (supra). From the aforesaid discussion, it is manifest that substantial question of law arises for determination in the instant second appeal whether grant of dearness relief to plaintiff on family pension by the Courts below is illegal and unsustainable. For the reasons recorded hereinbefore, the aforesaid substantial question of law is answered partly in favour of the appellants holding that plaintiff respondent is not entitled to dearness relief on family pension till before 12.12.2005 and is entitled to the same since 12.12.2005 onwards. As a necessary upshot of the discussion aforesaid, the RSA No.62 of 2010 -6- instant second appeal is allowed partly and judgments and decrees of the Courts below are modified and suit of the plaintiff respondent is decreed partly holding that the plaintiff is entitled to dearness relief on family pension with effect from 12.12.2005 onwards only. If the same has not been granted to her since the said date, the arrears shall be paid to her along with interest at the rate of 9% per annum from due dates till payment. 14.09.2010. ( L. N. MITTAL ) A. Kaundal JUDGE