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2004 DIGILAW 26 (JK)

Nisha Mangotra v. Registrar, High Court Of J&K

2004-02-23

V.K.JHANJI

body2004
The short question involved in this petition is whether a Government servant in service and in receipt of family pension on behalf of her/his husband/wife, as the case may be, is entitled to claim Dearness Allowance as admissible on the family pension, if it is higher than the rate of Dearness Allowance he or she might be receiving on his/her pay, or she/he is entitled to the Dearness Allowance on her/his pay alone? The controversy arises in relation to Government Instruction No. 1 under Rule 24c of Jammu and Kashmir Family Pension-cum-Gratuity Rules, 1964 (Schedule XV to J&K Civil Service Regulations Vol. 2) (hereinafter referred to as "the Family Pension Rules"), envisaging two different treatments to be meted out to the recipients of family pension. The Government Instruction in question is quoted below: "Government Instruction No. 1. - Where in any case a pensioner in receipt of service pension is also allowed a `family pension on behalf of his/her husband/wife as the case may be D. A. will be allowed either on `Service Pension or on `Family Pension which may have higher rate of D. A. Similarly, if a Government servant in service is also in receipt of family pension on behalf of his/her husband/wife as the case may be, D. A. in such a case shall be drawn on pay alone and not on `Family Pension. 2. Petitioners husband, late R. K. Mangotra, who was a District and Sessions Judge in the Higher Judicial Service of Jammu and Kashmir, died in harness on 9th June, 2003 while he was posted as Principal District and Sessions Judge, Kathua. The petitioner was appointed as a Junior Assistant in the High Court on compassionate grounds. At the time of his death, the deceased was drawing Rs. 13,125 as his basic pay and an amount of Rs. 7219 as Dearness Allowance at the rate of 55%, as admissible under the relevant Rules. Since the deceased died in harness after having rendered more than 7 years continuous service, in terms of the Family Pension Rules the petitioner is entitled to Family Pension equivalent to the pay last drawn by the deceased officer before his death. This rate of family pension has to continue for a period of seven years and, thereafter, the petitioner would be entitled to 50% of the pay last drawn etc. This rate of family pension has to continue for a period of seven years and, thereafter, the petitioner would be entitled to 50% of the pay last drawn etc. In fact, the petitioners family pension vide Pension Payment Order issued by the Accountant General, Jammu, was fixed at Rs.13, 125 from 10th June, 2003 to 9th June, 2010; Rs. 6,563 from 10th June, 2010 to 9th June, 2017 and Rs. 3,938 from 10th June, 2017 onwards. 3. It may also be relevant to mention here that the petitioner, having been appointed as Junior Assistant on compassionate grounds, is getting the following emoluments: BasicPay Rs.3050.00 DA@55% Rs.1678.00 CCA Rs.35.00 HRA Rs.458.00 MA Rs.100.00 Total Rs.5321.00 The amount of Dearness Allowance admissible on the amount of Family Pension of Rs. 13,125, as per the pre-revised rate of 55%, comes to Rs. 7219 and as per the revised rate of 59%, as admissible as on date, it comes to Rs. 7744. Further, pursuant to the implementation of the Shetty Commission Report, as per the statement prepared and submitted by respondent No. 1, the basic pay of the deceased as on the date of his death, and consequently the basic Family Pension of the petitioner, is fixable at Rs. 17,950. The Dearness Allowance admissible on such basic Family Pension at the pre-revised rate would be Rs. 9573 and as per the revised rate it would be Rs. 10,591 But, in terms of Instruction 1, referred to above, the petitioner is deprived of the payment of Dearness Allowance on the Family Pension and is made entitled instead to the Dearness Allowance of Rs. 1800 on her own pay alone. The petitioner is aggrieved of the second part of the Government instruction referred to above insofar as it restricts the payment of Dearness Allowance to the petitioner and reduces it to be admissible on her pay alone, and has, accordingly, challenged the same. 4. The learned Additional Advocate General appearing on behalf of the State, who argued the matter, opted not to file counter-affidavit. He stated that the matter related purely to interpretation of the Government Instruction and, therefore, no counter-affidavit, was required to be filed. 5. I have heard learned counsel for the parties and carefully considered the matter. 6. The admissibility and fixation of family pension is governed by Rule 20 under Section "B" of the Family Pension-cum-Gratuity Rules. He stated that the matter related purely to interpretation of the Government Instruction and, therefore, no counter-affidavit, was required to be filed. 5. I have heard learned counsel for the parties and carefully considered the matter. 6. The admissibility and fixation of family pension is governed by Rule 20 under Section "B" of the Family Pension-cum-Gratuity Rules. These Rules were originally framed in the year 1964. However, the scheme of family pension in case of death while in service or after retirement seems to have not been so liberal as it exists as at present. Perusal of these Rules shows that the Government by virtue of numerous amendments made right from 14th April, 1966, inserting new provisions into these Rules, including Government Instructions, notes and clarifications, has been making them more beneficial to the families of Government servants who die while in service or after retirement. Perusal of the new provisions and Government Instructions inserted from time to time demonstrate that it has all along been the endeavour of the Government to liberate these Rules from excessive precision and rigidity. Rightly so because family pension is a payment in consideration of the services rendered by a deceased employee and the legitimate expectations and changes in the status and affairs of the family engendered by the erstwhile employment, which, on account of death in harness of the employee, are suddenly upturned. One of such beneficial amendment to the Rules was made vide Notification SRO 310 of 8th May, 1986 inserting sub-clause (bbb) in Rule 20(ii) of the Rules to the following effect: "(bbb) Notwithstanding anything contained in sub-clause (bb) above, where a Government servant dies while in service after having rendered not less than 7 years continuous service, the rate of family pension admissible to the beneficiary of the deceased shall be equal to the pay last drawn by the deceased officer before his death. Pension at the enhanced rates equal to the last pay shall be payable for a period of 7 years from the date following the date of death of the Government servant or for period upto the date on which the deceased Government servant would have attained the age of superannuation whichever is earlier. Pension at the enhanced rates equal to the last pay shall be payable for a period of 7 years from the date following the date of death of the Government servant or for period upto the date on which the deceased Government servant would have attained the age of superannuation whichever is earlier. After having drawn family pension at such enhanced rates, it will be allowed at the rate equal to 50% of pay last drawn or twice the family pension admissible as per sub-rule (ii)(aaa) whichever is less and the amount so admissible shall be payable for a period of 7 years from the date the payment of enhanced pension as per preceding para ceases or till the deceased would have attained the age of 62 years whichever is earlier." 7. By virtue of the above quoted provision, the family, i.e., the beneficiary of a government servant, who dies while in service after having rendered not less than 7 years continuous service, is entitled to the family pension at a rate equal to the pay last drawn by the deceased officer before his death subject to the maximum of 7 years or till the deceased Government employee would have attained the age of superannuation. This is said to be "enhanced rate of family pension". Thereafter, for further 7 years, the family pension has to be equal to 50% of the last pay drawn. In terms of Rule 20(ii) family pension in respect of Government servants, who die after retirement, but before attaining the age of 62 years, is prescribed to be equal to 50% of the last pay, payable for a maximum period of 7 years or till the date the deceased would have attained the age of 62 years, whichever is less. Thereafter, the beneficiaries in respect of both the categories, i. e., death in harness or death after retirement, are entitled to family pension in terms of Rule 20-BB. Thereafter, the beneficiaries in respect of both the categories, i. e., death in harness or death after retirement, are entitled to family pension in terms of Rule 20-BB. Rule 20-BB inserted vide SRO 19 of 19th January, 1998, provides that the rates of family pension in respect of Government servants who may retire on or after 1st January, 1996 or who may die while in service on or after the said date, the family pension shall be calculated at a uniform rate of 30% of the basic pay in the revised scale in all cases instead of slab system as at present and shall be subject to a minimum of Rs. 1275 per month and maximum of 30% of highest pay in the Government. 8. It is evident thus that the family pension in respect of the beneficiaries of a deceased retired Government servant has to be equal to 50% of his last pay. The various clauses and sub-clauses of Rule 20 further clearly demonstrate, first, the beneficial nature of the Rules and, the second, and the most important, that it is only in case of death in harness that "enhanced rate of family pension" is prescribed. These Rules are statutory in nature, framed under Section 124 of the Constitution of Jammu and Kashmir. When the Rules prescribe an "enhanced rate of family pension", the object and intention, obviously, is to make the provision more beneficial for the family of an employee who dies in harness so as to ensure that the beneficiaries status and living standard to which they are accustomed by virtue of the erstwhile employment of the deceased is not upturned. The character of this family pension, i.e., "enhanced rate" is to be maintained; it cannot be reduced in any form, content or manifestation. 9. I am conscious that the word "pay" as contained in sub-clause (bbb) of Rule 20(ii), referred to above does not include Dearness Allowance. However, Note 2 below Rule 20 says that "D. A. on family pension shall be allowed at the rates which may be notified by the Government from time to time". In other words, the recipient of family pension is also entitled to Dearness Allowance at such rates as may be prescribed by the Government from time to time. However, Note 2 below Rule 20 says that "D. A. on family pension shall be allowed at the rates which may be notified by the Government from time to time". In other words, the recipient of family pension is also entitled to Dearness Allowance at such rates as may be prescribed by the Government from time to time. It was stated at the Bar that presently a uniformity is being maintained in the payment of Dearness Allowance to Government servants, Pensioners and recipients of family pension in the State, and its rate at the present is 59% of the Basic Family Pension. 10. Dearness Allowance is linked to the cost of living index. Since the cost of living is increasing day-by-day, payment of Dearness Allowance by the Government to its employees, pensioners or recipients of family pension is the best and the most appropriate way of enabling them negotiate the cost of living. Whereas Government servants in service are in receipt of other allowances and are also entitled to other perks and facilities, including periodical increments, family pension receivers are entitled to the Basic Family Pension, which remains static for considerable periods, unless revised and, in fact, gets reduced after the prescribed period of time, plus the Dearness Allowance and a fixed sum of Medical Allowance of Rs. 100. As already noticed, the Rules prescribe an "enhanced rate of pension in favour of the beneficiaries of a Government servant who dies in harness, subject to the condition of 7 years continuous service. Be it termed as "enhanced" or "ordinary/normal" rate, the beneficiary is concerned only with what he actually receives at hand. It is the same for him or her, unless the "enhanced rate" makes a practical difference and benefit to him or her. The term "enhanced rate of family pension" becomes redundant and meaningless unless the Dearness Allowance admissible thereon is paid to the beneficiary. Otherwise, cases are conceivable that a beneficiary admissible to ordinary family pension at 50% of the last pay drawn may practically receive more money, inclusive of Dearness Allowance, than a beneficiary in whose favour the Rules prescribe an "enhanced rate of family pension", defeating the very object and intention of the Rules and their beneficial nature. 11. Apart from the above, as already noticed, the Rules prescribe that recipients of family pension shall also be allowed Dearness Allowance. 11. Apart from the above, as already noticed, the Rules prescribe that recipients of family pension shall also be allowed Dearness Allowance. Therefore, a right is vested in such a beneficiary to receive Dearness Allowance on the amount of family pension. This right of the beneficiary cannot be taken away because the intention of the Government instruction is actually aimed at protecting the beneficial nature of the Rule or the interests of the recipient. Any Government Instruction having the effect of taking away this right of the beneficiary to his or her detriment would be violative of the rights of the beneficiary and, consequently, rendered unconstitutional. 12. Coming to the impugned Government Instruction, whereas its first part is made beneficial for a pensioner in as much as there is a choice exercisable by him/her for a higher rate of Dearness Allowance, the second part restricts it only to the Dearness Allowance admissible on his/her pay which, as in the present case, may be even far less than the Dearness Allowance admissible on the Basic Family Pension. The second part of the impugned Government Instruction probably assumes that the rate of pension would be less than that of his/her own pay and, consequently, the rate of Dearness Allowance would be less too. But, in the present case, the petitioners total salary, inclusive of Basic Pay, Dearness Allowance, City Compensatory Allowance, House Rent Allowance and Medical Allowance, is far less than the amount of Dearness Allowance admissible on her Basic Family Pension. The total salary of the petitioner is Rs. 5321 whereas the Dearness Allowance admissible on the Basic Family Pension at the pre-revised rate of 55% comes to Rs. 7219. Therefore, practically, the impugned part of the Government Instruction is working harsh, irrational and unreasonable to her interests. 13. Petitioner was appointed as a Junior Assistant in pursuance of the Rules providing for appointment on compassionate grounds. Those Rules have a definite object and purpose and are based on the cherished norms of social justice. If the petitioner is deprived of the Dearness Allowance on her Basic Family Pension that would have the effect of converting the benefit extended to her under the aforesaid Rules actually into a severe recurring punishment. That obviously is not the object either of the Family Pension Rules or that of the Rules providing for appointment on compassionate grounds. 14. If the petitioner is deprived of the Dearness Allowance on her Basic Family Pension that would have the effect of converting the benefit extended to her under the aforesaid Rules actually into a severe recurring punishment. That obviously is not the object either of the Family Pension Rules or that of the Rules providing for appointment on compassionate grounds. 14. There is another important aspect of the matter as well. The Rules providing for compassionate appointments envisage appointment of any of the eligible family members of such a deceased Government servant: it can be a son or a daughter; and it need not be necessarily his widow. Cases are again conceivable that children might be either too small or may be interested in completing their higher studies and, on the other hand, the widow may be qualified and eligible for such appointment. In the event of appointment of any eligible family member other than the widow, the restriction as contained in the impugned portion of the Government instruction, obviously, would not be attracted. What is the rationale behind applying such a restriction to the widow alone, who under the Rules becomes the first person entitled to the family pension and may also seek appointment on compassionate grounds, is not comprehendible. The restriction is wholly unreasonable and, therefore, unconstitutional. 15. It may, however, be observed here that petitioner is entitled to the family pension at its present rate or as may be fixed pursuant to Shetty Commission Report only for a maximum period of 7 years. Therefore, for further 7 years, she would be entitled to a family pension equivalent to 50% of the basic pay last drawn by the deceased. After that, the family pension is to be calculated at normal rate under Rule 20-BB. On the other hand her own pay is bound to increase either in the same time scale or in pursuance of revisions that may be ordered by the Government or by her promotion to next higher post. At one stage the rate of Dearness Allowance on her own pay is likely to be more than what would be admissible to her on the family pension. That would again give rise to an anomaly. At one stage the rate of Dearness Allowance on her own pay is likely to be more than what would be admissible to her on the family pension. That would again give rise to an anomaly. To prevent creeping in of such an anomaly, I am of the considered view that, where a Government servant in receipt of his/her pay is also entitled to family pension under the Family Pension Rules, he or she must have the same option with regard to Dearness Allowance as is provided in the first part of Government Instruction No. 1, i.e., he or she must be allowed Dearness Allowance which is higher than the other. 16. However, a person cannot claim or be entitled to two Dearness Allowances, one on pension and another on his/her pay. Dearness Allowance, as already noticed, has relation to cost of living index. Once one Dearness Allowance takes care of such a cost of living, the person becomes disentitled to the Dearness Allowance on the other payment. He or she cannot claim Dearness Allowance on both. 17. In view of the above, second part of Government Instruction No. 1 under Rule 24(c), impugned in the petition, is struck down as being unconstitutional. The petitioner is held to be entitled to similar treatment as is given in the first part of the Government Instruction No. 1 to pensioners, that is, that she would be entitled to Dearness Allowance on her pay or family pension, whichever is higher from time to time. 18. The petition is disposed of in terms of the above. There shall, however, be no order as to costs.