NISHA MANGOTRA Vs. REGISTRAR, HIGH COURT OF J&K

JUDGEMENT

(1.) 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. 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.