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2008 DIGILAW 781 (PAT)

Kumud Bala v. State Of Bihar

2008-06-26

S.N.HUSSAIN

body2008
Judgment 1. Heard learned counsel for the petitioner and learned counsel for the State as well as learned counsel for the Account General. 2. This writ petition has been filed on behalf of the petitioner only for payment of Dearness Relief on family pension on the death of the husband of the petitioner as all the other dues have already been admittedly paid to the petitioner. 3. Learned counsel for the petitioner submits that her husband, late Ashok Prasad Singh, was appointed as Sub-Inspector in the Department of Excise on 13.11.1983 and within three years of his appointment, he died on 14.8.1986. He further submits that on 22.8.1987 the petitioner was appointed on compassionate ground as, Clerk in the Department of Excise. But thereafter she appeared in the limited departmental examination and succeeded, whereafter she was appointed on the post of Assistant in the Excise Department on 28.7.1989 and since then she is working on that post. These facts are not disputed. 4. Learned counsel for the petitioner submits that on 28.7.1989 the petitioner was appointed independently and hence in view of the circular of the Finance Department dated 9.5.1991 dearness relief on family pension shall not be made to a person if he/she is emplyed/re-employed in any department or office of the Government. In this regard he relies upon a decision of the Division Bench of this Court in case of Smt. Sharda Devi V/s. The State of Bihar, reported in 2002(3) P.L.J.R. 527 in which it was specificially held that the word "employed or re-employed" as similar to the present provision was a matter of determination and the Apex Court held in the case of H.S.E.B. and Others V/s. Azad Kaur, reported in (2000)2 SCC 277 that if the person is independently employed in that situation the ad hoc relief cannot be denied to the holder of the family pension. 5. On the. 5. On the. other hand, learned counsel for the respondents vehemently opposes the contention of learned counsel for the petitioner and submits that the petitioner was allowed to appear in the limited departmental examination only on the basis of her compassionate appointment and hence her appoinment on 28.7.1989 cannot be held to be an independent appoinment as it was based on a compassionate appoinment of the petitioner on 22.8.1987, hence he submits that the aforesaid decision of the Divison Bench of this Court or the decision of the Honble Apex Court are not applicable to the facts and circumstances of this case and the petitioners case has to be viewed in accordance with the Government circular dated 9.5.1989. 6. Considering the aforesaid facts and circumstances, it is quite apparent that no doubt the petitioner was appointed on compassionate ground on 22.8.1987 but the limited departmental examination held in the year 1991 was not only for the compassionate appointees rather it was open for all the appointees working in the department, irrespective of the fact that they were compassionate appointees or general appointees. 7. In the said circumstances and in view of the specific decisions of the Honble Courts the petitioner does not come under the purview of circular dated 9.5.1991 and hence subsequent appointment of the petitioner on 28.7.1989 is held to be independent appointment and hence she is entitled to dearness allowance on family pension from 28.7.1989 because before that she was working on the basis of compassionate appointment and was not entitled to any such dearness allowance on family pension. 8. In the aforesaid facts and circumstance, this writ petition is allowed, order dated 10.10.2007 issued vide memo No.688 by the office of the Accountant General (A&E), Bihar, Patna is hereby quashed and the authorities are directed to make the entire payment of dearness allowance on family pension as mentioned above to the petitioner within a period of six months from the date of receipt/production of a copy of this order.