IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 9.08.2010 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MR. JUSTICE G.M. AKBAR ALI W.A.No.256 OF 2001 and M.P.No.599 of 2001 Union of India rep by the Regional Director (Food) Department of Public Distribution Government of India 5/54, Greams Road Thousand Lights Chennai-600 006 ..Appellant Vs. Smt.Saraswathi Viswasam ..Respondent Prayer: Writ Appeal filed under Clause 15 of the Letters Patent against the Order of the learned single Judge made in W.P.No.20847 of 1993 dated 3.11.2000. W.P.No.20847 of 1993: The Writ Petition presented under Article 226 of the Constitution of India for the issuance of Writ of Mandamus directing the respondent to pay dearness relief with arrears from the year 1989 onwards along with pension and to pay dearness allowance with the pension starting from November 1993 onwards. For Appellant : Mr.B. Manoharan ACGSC For respondent : No appearance JUDGMENT G.M. AKBAR ALI.,J Appeal arises out of the order of the learned single Judge in WP NO.20847 of 1993 dated 3.11.2000. The Writ Petition was filed for issuance of a Writ of Mandamus directing the appeallant to pay dearness reloief with arrears from the year 1989 onwards along with the pension. https://hcservices.ecourts.gov.in/hcservices/ 2. The writ petitioner joined the service under the appellant in the year 1957 and her husband Viswasan was also an employee under the appellant. He died on 19.12.1988 while he was in service. After the death of her husband, the writ petitioner was receiving pension. Her appointment was not on compassionate ground. She made a representation requesting the appellant to pay dearness relief along with the pension on 19.6.93. The appellant rejected the application on the ground that Rule 55-A (ii) of Central Civil Services (Pension Rules) 1972, as amended Rule of 1991 do not contemplate dearness relief for a pensioner who was employed or re- employeed. 3. The learned single Judge found that the writ petitioner who was the recipient of the family pension was already in employment and therefore, Rule 55-A (ii) of Central Civil Services (Pension Rules) 1972, is not applicable and directed the appellant for payment of dearness relief to the writ petitioner. 4. Aggrieved by which, the Union of India represented by Regional Director has filed the present appeal. 5. This Bench directed the appellant to take notice to the respondent and on service of notice, the name of the respondent was printed in the cause list and the matter was posted for final hearing. 6. When the matter was taken up for final hearing on 3.8.2010, the appellant was represented by Mr.B. Manoharan, Additional Central Government Standing Counsel and the respondent neither appeared nor represented through a counsel. 7. The learned Additional Central Government Standing Counsel appearing for the appellant would draw our attention to Rule 55(A) (ii) of the Pension Rules which states that if a pensioner is re- employed he/she shall not be eligble to draw dearness relief on pension/family pension during the period of such employment. The learned counsel relied on a decision reported in 1995 L.A.B. I.C 1415 (Union of India vs G. Vasudevan Pillay) in which the Apex Court has held as follows: "8. .... even if Dearness Relief be an integral part of pension, we do not find any legal inhibition in disallowing the same in cases of those pensioners who get themselves re-employed after retirement. In our view this category of pensioners can rightfully be treated differently from those who do not get e-employed and in the case of the re-employed pensioners it would be permissible in law to deny DR on pension https://hcservices.ecourts.gov.in/hcservices/ inasmuch as the salary to be paid to them on re-employment takes care of erosion in the value of the money because of rise in prices, which lay at the back of grant of D.R., as they get Dearness Allowance on their pay which allowance is not available to those who do not get re-employed" 8. We heard the learned Standing Counsel for the appellant and perused the materials available on record. The respondent is a pensioner and was receiving family pension on the death of her husband. However, the respondent was already in service prior to her husband's death. The only question arises before us is to whether she is entitled for dearness relief on family pension. 9. Rule 55-A(ii) reads as follows: 55-A Dearness Relief on pension/family pension (i) .................. (ii) If a pensioner is re-employed under the Central or State Government or a Corproation/Company/Body/Bank under them in India or abroad including permanent absorption in such Corporation/Company/Body/Bank, he shall not be eligible to draw dearness relief on pension/family pension during the period of such re-employment". 10. Indisputably, the respondent is not in re-employment under the appellant. She was already in the employment from the year 1957 getting her salary and also the family pension for the death of her husband.Appendix - VI Paragraph 3.2 (2) of the Pension Rules deals with suspension of pension during the period of employment or re- employment. The family pension shall be suspended, when a person in receipt of family pension, is employed in any of the Central or State Government Organisation. 11. This provision is applicable to; (i) a retired pension who gets re-employment (ii) A family pensioner who is employed 12. The category (ii) deals with the persons who are employed on account of the death of a person viz; on compassionate grounds. Moreover, this Rule deals with suspension of family pension. What was agitated before the learned Single Judge was payment of dearness relief. https://hcservices.ecourts.gov.in/hcservices/ 13. The judgment relied on by the appellant deals with those pensioners who get themselves re-employed after retirement. In 1995 L.A.B. I.C 1415 (Union of India vs G. Vasudevan Pillay),(cited supra) paragraph 10 reads as follows: 10. Denial of DR on family pension In some of the cases, we are concerned with the denial of Dearness Relief on family pension on employment od dependents like widows of the ex-servicemen. This decision has to be sustained in view of what has been stated above regarding denial of D.R on pension on re-employment inasmuch as the official documents referred on that point also mention about denial of D.R on family pension on employment. The rationale of this decision is getting of Dearness Allowance by the dependents on their pay which is drawn following employment because of which Dearness Relief on family pension can just be denied, as has been done". 14. The above said observation relates to refusal of dearness relief on family pension only to such persons, who are employed on compassionate ground. Therefore, the respondent, who was already employed and whose family pension was not suspensed for any reason, is entitled for dearness relief on the family pension. 15. Therefore, we agree with the view taken by the learned single Judge. 16. In the result the writ appeal stands dismsised. No costs. Consequently, connected MP is closed. sd/- Asst.Registrar /True copy/ Sub.Asst.Registrar sr https://hcservices.ecourts.gov.in/hcservices/ To The Regional Director (Food), Department of Public Distribution, Government of India, 5/54, Greams Road, Thousand Lights, Chennai-600 006. + 1 c.c. to Mr. B. Manoharan, Advocate. S.R.No.58899. W.A.No.256 of 2001 RS (CO) GSK 25.08.2010. https://hcservices.ecourts.gov.in/hcservices/