Haryana Civil Pensioners Association (Regd.) And Others v. State Of Haryana And Another

G.S Singhvi, J.:— The only point which needs determination in this petition is-whether a recipient of family pension/extra-ordinary family pension is entitled to the payment of ad hoc/dearness relief during the period of his/her employment/re-employment under the State/Central Government. Petitioner No. 1 is a registered society formed for the welfare of the civil pensioners of Haryana. Petitioners Nos. 2 to 9 are recipients of family pension in lieu of the service of their husbands. They are also employed in the Government service under the scheme of compassionate appoints. The petitioners have questioned the legality of the decision of the Government of Haryana to suspend the payment of ad hoc relief on pension to the recipients of the family pension/extra-ordinary family pension and have prayed that Annexure P 2 be quashed.

2. Shri Jagia's contention is that the Government has no authority to suspend the payment of dearness allowance/ad hoc relief to the recipients of the family pension during the period of their employment and on the basis of purely administrative instructions issued by the Government, the relief which is Otherwise, admissible to such persons under the provisions of the relevant rules, cannot be taken away. He relied on a decision dated 8.12.1994 of a Division Bench of the Himachal Pradesh High Court in Civil Writ Petition No. 1372 of 1993 (Smt. Kamla Sharmav. State of Himachal Pradesh). He also placed reliance on a decision of the Central Administrative Tribunal (Emakulam Bench) in Smt. E. Manikkan v. Postmaster, 1991 (8) SLR 445. Ms. Ritu Bahri, learned Assistant Advocate General argued that benefit of dearness allowance/ad hoc relief is admissible to the pensioner only when he/she is not employed with the Government and, therefore, the petitioner Nos. 2 to 9, who are serving the Government of Haryana on the basis of compassionate appointments and who are in receipt of the dearness allowance on their pay, cannot claim that the Government should pay to them the amount of dearness allowance/ad hoc relief on the amount of family pension. Ms. Bahri argued that the Government of Haryana has adopted the various decisions taken by the Central Government on the issue of family pension and, therefore, the decision taken by the Government of India will be applicable in totality.

3. A look at the impugned order shows that the decision contained therein is in the form of clarification given by the Government with reference to its earlier Circular Letter dated 24.7.1979 on the issue of the family pension and the extra-ordinary family pension. The present State of Haryana was a part of the State of Punjab till 31.10.1966 After its creation w.e.f 1.11.1966, the Government of Haryana has not framed separate rules regulating the grant of family pension etc. Instead it has adopted the various instructions issued by the Central Government from time to time. Vide Circular No. 1/3(5)-78-2FR-II dated 20.4.1979, the Government of Haryana decided to give larger relief to the recipients of the family pension and extra-ordinary family pension. However, it was made clear that the larger relief will not be admissible to those who are reemployed. This letter reads as under:—

“Subject : Grant of relief to Haryana Govt. pensioners/recipients of family pension and extraordinary family pension.

I am directed to invite a reference to Finance Deptt. circular letter No. 1/3(5) 78-2FR II, dated the 27th October, 1978 and No. 1/3(5)-78-2FRII, dated 20th April, 1979 and to say that in view of the rise in the Page: 184cost of living the State Government have been considering for some time past, the question of affording further relief to Haryana Govt. pensioners as well as to the recipients of family pension and extraordinary family pension. It has now been decided to grant them one instalment of further relief at the rate of five per cent of their pension with a minimum of Rs. 5/- and a maximum of Rs. 25/- per mensum with effect from 1st December, 1978. This relief will be in addition to the relief already granted previously by the State Govt. from time to time and will be subject to the following stipulations:—

(i) “It will be admissible with reference to the pension as originally sanctioned without taking into consideration any commutation.

(ii) It will not be admissible to pensions on ad hoc basis without reference to emoluments e.g political pensions, special pensions, war-risk pensions etc.

(iii) It will also not be admissible to re-employed pensioners during the period of their re-employment.

2. The expenditure involved will be debitable to the major head “266-Pensions and other Retirement Benefits.

3. Receipt of this letter may please be acknowledged.”

4. It is in the context of the aforesaid letter that clarification has been issued by the Government of Haryana vide Annexure P-2 to the effect that the benefit of ad hoc relief on pensions shall remain suspended when a person who is in receipt of the family pension/extraordinary family pension is employed.

5. Argument of the learned counsel for the petitioner that the Government did not have the jurisdiction to issue the impugned circular letter is based on an erroneous assumption that grant of family pension/extraordinary family pension is regulated by statutory rules. Learned counsel could not point out any statutory enactment framed by the Haryana Legislature or the. Governor of Haryana nor could be refer to any legislative instrument adopting Rule 55-A of the Central Civil Services (Pension) Rules. To us, it is clear that the entire field responding family pension/extraordinary family pension is occupied by the executive orders in so far as the State of Haryana is concerned. Therefore, the Government did have the authority to allow or clarify its earlier instructions regarding payment of family pension etc.

6. The decision of the Himachal Pradesh High Court, on which reliance has been placed by Shri Jagia, is based on interpretation of Rule 55-A of the Central Civil Services (Pension) Rules. Their Lordships of the Himachal Pradesh High Court interpreted the aforesaid rules and held that the word “re-employed” used in Rule 55A(ii) does not include the word “employed” and, therefore, the said rule cannot be invoked in case of the person employed for the first time. The Division Bench held:—

“The word used in clause (ii) of Rule 55-A of the Central Civil Services (Pension) Rules is “re-employed” and not “employed”. Therefore, definitely when a Government servant is re-employed his pay is fixed under different set of rules and in so fixing the pension and pension equivalent to gratuity and other things are taken into consideration. Therefore, rule makers have used this word so that a pensioner does not get more than what is admissible under the normal rules. If the intention of the rule makers would have been that the family pensioner should not be given dearness relief on the family pension if directly recruited or employed then definitely “the rule makers would have used the word “employed” and not “re-employed”. Therefore, Page: 185we are of the opinion that clause (ii) of Rule 55-A of the Central Civil Services (Pension) Rules is application only in case a person is re-employed and this rule cannot be invoked in case of a person employed for the first time. On this ground we are of the opinion that the writ petitioner shall also be entitled to get dearness relief on the family pension in addition to her pay and dearness relief she is getting in the post she is employed.

“Let us look at it from another angle. A Government employee may leave behind more than one widow. If ‘both the widows are getting family pension and only one of them is employed on compassionate ground by not allowing the dearness relief on the family pension it will deprive the other widow who is without any job. This will be an arbitrary action on the part of the Government. Keeping in view this principle, the rule-makers have definitely used the word “re-employed” in case of the petitioner in clause (ii) of Rule 55-A.

In view of what has been stated above in respect of dearness relief, we are of the opinion that any executive instruction given by the State Government by which the present petitioner has been deprived of her dearness relief on the family pension is contrary to the rules and liable to be set aside which we hereby do. We direct that the petitioner shall be given dearness relief on the family pension in addition to the dearness allowance and other relief she is entitled to the post in which she is working.”

7. In our opinion, the aforesaid judgment is of no help to the case of the petitioners because the said decision was rendered on the interpretation of Rule 55-A, which has not been shown to be applicable to the case” of the petitioners.

8. Even otherwise, we do not find any merit in the contention of Shri Jagia that suspension of ad hoc relief on pension during the employment of a recipient of the family pension is arbitrary and discriminatory. It is significant to note that under Rule 55-A of the Central Civil Services (Pension) Rules and the instructions issued by the Central Government as well as the Government of Haryana, a pensioner is not entitled to dearness allowance on pension during the period of his re-employment. The rationale of this provision is that a person who is re-employed after retirement gets pay along with dearness allowance and, therefore, he should not be allowed to get double benefit in the form of dearness allowance. The very idea of grant of dearness allowance is to reduce the hardship caused to the employees/pensioners due to rise in the price of living. Therefore, one who receives dearness allowance from one source is not entitled to claim dearness relief from another source. A person who is re-employed after retirement and who gets pay of the re-employed post together with the dearness relief cannot say that he is being deprived of the cusion in the form of dearness relief which he was getting on his pension prior to re-employment. If this be the position regarding a pensioner, the decision of the respondents to deny the benefit of dearness relief adhoc relief to a recipient of family pension on his/her employment on compassionate ground cannot be termed as arbitrary or unconstitutional. If grant of double benefit of dearness allowance on pay and dearness relief on pension is not justified in the case of a pensioner, such double benefit cannot be given to the recipient of the family pension.

9. In Union of India v. G. Vasudevan Pillay, JT 1995 (I) S.C 417 : [1995 (2) SLR 21 (SC)], an identical question has been considered by the Supreme Court and it has been held that denial of dearness relief on family Page: 186pension on employment of dependents like widows of the ex-servicemen does not suffer from any illegality. Question No. 2 framed by the Supreme Court was in the following terms:—

“Whether denial of D.R on family pension on employment of dependents like widows of the ex-servicemen is justified or not?

10. After examining the issue, their Lordships held:—

“In some of the cases, we are concerned with the denial of Dearness Relief on family pension on employment of 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 justly be denied, as has been done.”

11. We are also not convinced with the argument of the learned counsel that a discriminatory situation may arise where a Government servant dies leaving behind a widow only and where he dies leaving behind a widow as well as children. Learned counsel argued that in the first case, the widow may not get benefit of ad hoc relief on family pension during her employment on compassionate grounds but in second case one of the children may get employment on compassionate grounds and the widow will continue to get benefit of ad hoc relief on family pension. This may be so but a mere chance factor of one family getting double benefit cannot be a ground for holding that the policy decision of the Government for not giving benefit of ad hoc relief/dearness relief to a recipient of family pension with effect from the date of his/her employment cannot be termed as arbitrary, irrational or unjust. A rule or policy decision, which is of general application, cannot be characterised as discriminatory merely because in a given fact situation one or more than one persons get more benefits than the other one. Moreover, once we have taken the view that denial of ad hoc relief/dearness relief to the recipient of family pension is on principle justified, a chance factor of one family of a deceased pensioner getting more benefits cannot be made basis for striking down the policy decision.

12. We may also notice that a similar claim made in Civil Writ Petition No. 5099 of 1992 : [1992 (5) SLR 433 (Pb. & Hry.)] (Smt. Bimla Devi v. State of Haryana) was rejected by this court on 25.8.1992 and we do not find any ground to take a different view.

13. For the reasons mentioned above, the writ petition fails and the same is hereby dismissed. However, the parties are left to bear their own costs.

14. Petition dismissed.