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2015 Supreme(J&K) 259
JAMMU & KASHMIR HIGH COURT AT JAMMU
Muzaffar Hussain Attar, B.S. Walia, JJ.
State of J & K - Appellant
Versus
Nisha Magotra - Resopndent
LPASW No. 201 of 2005 & MP No. 210 of 2005
Decided On : 03-09-2015
For the Appellant : P.S. Chandel, Dy. AG.
For the Respondents:K.S. Johal, Sr. Advocate and Shahla Rafiqui, Advocate.
The judgment established the principle that court's authority is limited to interpreting and enforcing laws, and re-framing instructions is the role of the rule-making authority.
Headnote:
Government Instruction - Interpretation of Jammu and Kashmir Family Pension-Cum-Gratuity Rules, 1964 - Rule 24(c) - Summary of Acts and Sections: Rule 24(c) of the Jammu and Kashmir Family Pension-Cum-Gratuity Rules, 1964 - The judgment discussed the interpretation and constitutionality of Government Instruction No. 1 appended to rule 24(c) of the rules 1964. It also addressed the entitlement to Dearness Allowances on pay or family pension, and the re-framing of the instructions.
Fact of the Case:
The deceased, a member of Higher Judicial Services, was entitled to family pension equal to his last pay drawn. The respondent, appointed on compassionate grounds, raised concerns about the deprivation of Dearness Allowance on the Family Pension, leading to a legal dispute.
Finding of the Court:
The court found the second part of Government Instruction No. 1 unconstitutional, and declared the respondent entitled to similar treatment as pensioners, including Dearness Allowances on pay or family pension, whichever is higher.
Issues: Interpretation and constitutionality of Government Instruction No. 1, entitlement to Dearness Allowances, and re-framing of the instructions.
Ratio Decidendi: The court held that the second part of Government Instruction No. 1 was discriminatory and unconstitutional, and re-framed the instructions, which was beyond its competence.
Final Decision: The appeal was allowed, the impugned judgment was set aside, and the rule-making authority was directed to take steps for re-framing the Government Instruction No. 1.
Muzaffar Hussain Attar, J.:-
1. The Government instruction No. 1 appended to Rule 24(c) of the Jammu and Kashmir Family Pension-Cum-Gratuity Rules, 1964 (for short ‘rules of 1964’) became subject matter of interpretation in SWP No. 2248/2003. The learned Writ Court in terms of impugned judgment dated 23.02.2004 struck down second part of Government Instruction No. 1 appended to rule 24(c) of the rules 1964 as unconstitutional. It further declared that the writ petitioner/respondent would be entitled to similar treatment as is given in the first part of the Government Instruction No. 1 to pensioners. It is also provided that the respondent/writ petitioner would be entitled to Dearness Allowances on the pay or family pension whichever is higher, from time to time. It is this judgment, the State of Jammu and Kashmir is aggrieved of and has challenged the same in this Letters Patent Appeal.
2. Before dealing with the submissions of the learned counsel for the parties, it is deemed appropriate to give brief narration of the facts projected in the writ petition by the respondent/writ petitioner.
3. The respondent/writ petitioner’s husband late Shri R.K. Magotra was a member of Higher Judicial Services and died in harness on 09.06.2003. At the time of his death, he was posted as Principal District and Sessions Judge, Kathua.
4. The respondent/writ petitioner was appointed on compassionate ground as Junior Assistant in the High Court. The facts as emerge from the impugned judgment would show that at the time of his death, the deceased was drawing Rs.13125 as his basic pay and an amount of Rs.7219/- as Dearness Allowance @ 55% was admissible under the relevant Rules.
5. The deceased having died in harness after rendering more than seven years of continuous service was entitled to family pension equal to the last pay drawn by the deceased before his death in view of mandate contained in Family Pension Rules. The Accountant General in terms of Pension Payment Order fixed Pension amount at Rs. 13,125/-from 10.06.2003 to 09.06.2010, Rs.6,563/- from 10.06.2010 to 09.06.2017 and Rs. 3,938/- from 10.06.2017 onwards.
6. The respondent/writ petitioner was appointed on compassionate ground as Junior Assistant and at that point of time was getting emoluments which included basic pay of Rs. 3050.00, DA @ 55% Rs.1678 and other allowances, thus was receiving total salary of Rs.5,302.21. The Dearness Allowance admissible on the amount of family pension of Rs.13,125/- as per pre-revised rate of 55% was calculated at Rs. 7,219/- and as per the revised rate of 59% it would come to Rs.7,744/-.
7. In pursuance to the implementation of the recommendations of Shetty Commission Report, the basic pay of the deceased on the date of his death would undergo change and consequent to this basic Family Pension would be fixed at Rs. 17,950/- and DA admissible on such basic Family Pension at pre-revised rates would be Rs.9,573/- and as per revised rate at Rs.10,591/-.
8. The grievance of the respondent/writ petitioner was that in terms of Government Instruction No. 1 appearing below the rule 24(c) of the rules 1964, she is deprived of the benefit of Dearness Allowance on the Family Pension which was higher than her own salary as she was entitled only to get Dearness Allowance of Rs.1800/- on her own pay. It is in this factual backdrop, the learned Writ Court while considering the Living Cost Index came to the conclusion that the second part of the Government Instruction is unconstitutional. The learned Writ Court while declaring it to be unconstitutional as already stated further declared that the respondent/writ petitioner would be entitled to DA on pay or family pension whichever is higher from time to time.
9. Government Instruction No. 1 as is reproduced in the impugned judgment is taken note of:
“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 c
