KAMLA SHARMA Vs. STATE

JUDGEMENT

(1.) This petition under Article 226 of the Constitution has been filed by Smt. Kamla Sharma, widow of late Shri Sita Ram, against the State of Himachal Pradesh, Secretary Finance to the Government of Himachal Pradesh, Director of Education and Accountant General, Himachal Pradesh.

(2.) Briefly stated the facts are as follows. The husband of the petitioner, late Shri Sita Ram, was discharging his duties as Shastri at Government Middle School, Losar in Lahaul and Spiti District. Late Shri Sita Ram proceeded on leave on 1 -6 -1983 and he was supposed to reach home within two or three days The family of Shri Sita Ram was anxiously waiting, but unfortunately he never reached home and consequently an F.I.R. was filed before the Police Station Theog on 25 -7 -1983 vide F.I.R. No.5 of 1983. The petitioner approached the respondent Government for family pension and also for appointment on compassionate grounds. She was appointed as a Peon on 13 -8 -1988 in the office of the Project Officer (Adult Education), Shimla. The petitioner was also granted family pension due to non -existence of her husband with effect from 29 -8 1986, The petitioner claims that she is entitled to such pension with effect from 1 -6 -1983 The petitioner has not been paid dearness relief on family pension and, therefore, it has been prayed that the respondents be directed to pay dearness allowance with effect from 13 -8 -1988. It may be stated that according to the petitioner she is entitled to ex -gratia payment of Rs. 16,000 and she has claimed this amount with interest at the rate of 18 per cent. The General Provident Fund was paid on 31 -8 -1992 and according to the petitioner she is entitled to get this payment with effect from 1 -6 -1983. Therefore, she has claimed interest on this amount It may be stated that under the Government rules persons working in remote areas are entitled to draw advance salary and accordingly late Shri Sita Ram also drew some advance salary and now the respondents have directed that the advance salary paid to the husband of the present petitioner may be recovered. Therefore, the petitioner has claimed that this amount may not be recovered from her and has also prayed that the amount already recovered may be refunded to her with interest at the rate of 18 per cent.

(3.) In the reply affidavit filed on behalf of the State, Government and its officials, it has been stated that the petitioner earlier approached the State Administrative Tribunal by filing a petition which was registered as O.A No. 921 of 1992 and by order dated 10 -3 -1993 the Tribunal disposed of the said petition with the direction that the said petition may be treated as a representation to the Government and, therefore, directed the State Government to consider the application on merits in accordance with law within a period of four months. However, liberty was granted to the applicant to approach the Tribunal again on the same cause of action, if aggrieved. According to the respondents as the petitioner had already approached the State Administrative Tribunal the present petition is not maintainable. It may be stated that as per the directions of the State Administrative Tribunal the matter was considered and the result was duly communicated by the Director of Education to the Deputy Director (Legal Cell), Directorate of Education, Shimla vide letter dated 16 7 -1993 vide Annexure R -1 to the reply affidavit. It has been stated that in view of the above direction of the Administrative Tribunal and the action taken by the respondents, the present petition is not maintainable and is liable to be dismissed. According to the respondents as per the report of the Headmaster of the school, tote Shri Sita Ram was missing from June, 1983. Copy of the said report has been annexed as Annexure R -2 It has also been stated that request was made to the Station House Officer Theog to confirm whether F.I.R. No. 5 was registered in the police station on 25 -7 -1993 or not. But the Station House Officer informed by his letter dated 30 -12 -1981 that the record in question has been destroyed and, therefore, he was unable to supply the requisite information. The copy of the letter of the Station House Officer has been annexed as Annexure R -3, According to the respondents in the absence of the copy of the F.I.R, the petitioner could not have been appointed on compassionate grounds as Class IV employee. However, keeping in view the poor plight she was appointed as Grade IV employee on 10 -8 -1986 on compassionate grounds. In reply to the allegation of the petitioner that she is entitled to get family pension with effect from 1 -6 -1983 it has been stated that detailed instructions have been laid down by the Government by letter dated 16 -5 -1991 and 15 -6 -1993 and as such the petition of is not entitled to get family pension from that date. In this behalf the latter of the Government of India dated 25 -1 -1991 has also been referred to and it has been stated that this letter was circulated/adopted by the Government of Himachal Pradesh vide office memo dated 16 -5 -1991. Regarding date of drawal of family pension reference has also been made to the letter of the Senior Deputy Accountant General dated 16 -3 -1992 and a copy of which has also been enclosed as Annexure R -4 to the reply. It has been stated that though family pension in such cases could be granted only on receipt of the copy of the F.I.R. but out of pity and because of the miserable condition of the petitioner it was so granted without the copy of the F.I.R Regarding ex -gratia payment to the petitioner it has been stated that she is not entitled to get it in view of the letter of the Government of Himachal Pradesh in the Finance Department dated 4 -11 -1988. The copy of the letter has been annexed as Annexure R -5 According to the respondents the ex -gratia payment is granted in case of death only and not otherwise. Regarding advance payment of salary it has been stated that as a policy decision the State Government, give the advance in the tribal areas, but the same is always subject to adjustment in successive months. Therefore, it cannot be said that the amount should not be recovered from the petitioner as other relief was granted to the dependents of the missing employee. According to the respondents recovery of the advance cannot be termed as harsh/oppressive and inequitable. Regarding delayed payment of General Provident Fund it has been stated that a sum of Rs. 4018 was paid on 31 -8 -1992 and Rs. 6,760 was paid as interest upto 31 -10 -1993. Therefore, the petitioner cannot have any claim regarding interest and it was paid in time. Respondent No.3, that is Accountant General, has filed an affidavit through the Deputy Accountant General. In the reply affidavit filed on behalf of respondent No 3 it has been specifically stated that the family pension was allowed in tetras of the office memo of the Government of India dated 29 8 -1986, incorporated as decision No. 10 under Rule 54 read with Government of Himachal Pradesh letters dated 16 -5 -1991 and 15 -6 -1993 and a copy has been enclosed as Annexure R -4. It has been categorically stated that the petitioner is not entitled to family pension from 1 -6 -1983 because the conditions/rules for regulating the family pension in case of missing personnel came in existence with, effect from 29 -8 -1986 and the Government of Himachal Pradesh has categorically stated in their letter dated 16 -5 -1991 that the family pension in such a case would be admissible from 29 -8 -1986, According to the Accountant General family pension was given as per the instructions given by the Government of Himachal Pradesh. The point raised by the Accountant General is that the instructions of the Government of India will not be applicable automatically to the State Government unless it is adopted by the State Government. Regarding General Provident Fund it has been stated that the application for final payment of the G.P. Fund was submitted by the petitioner on 20 -5 -1992 which was forwarded to the Headmaster of the School vide Annexure R -10 and the reply was received by the respondent No.3 on 22 -6 -1992. On scrutiny of the case it was observed that the indemnity bond was not enclosed with the final application. Therefore, the respondent made a reference vide letter dated 14 -7 -1992 vide Annexure R -11 to the petitioner asking her to file the indemnity bond which was furnished by her on 12 -8 -1992. Thereafter the authority was issued for payment of the amount by letter dated 31 -8 -1992 vide Annexure R -12 It has been stated that the interest was allowed upto May 1984 and thereafter higher authority was moved and the sanction was conveyed on 19 -10 -1993 and thereafter the interest of Rs. 6,760 was paid with effect from June 1984 to October 1993 by letter dated 22 -10 -1993. Copy of the letter has been annexed as Annexure R -13. Under these circumstances it has been urged by respondent No. 3 that interest was paid upto October 1993 and therefore, the petitioner is not entitled to get any more interest.