JUDGMENT : 1. Rejoinder affidavit filed today, is taken on record. 2. Heard learned counsel for the petitioner, Sri Govind Narayan Srivastava, learned standing counsel for respondent no. 1 and Sri Iqbal Hussain, learned counsel for respondent nos. 2 to 4. 3. Present petition has been filed to issue a writ of mandamus for a direction upon the Municipal Commissioner Nagar Nigam, Varanasi to grant/ release the pension in favour of petitioner. 4. With the consent of the parties, petition is being decided at the admission stage itself without calling for counter affidavit. 5. Learned counsel for the petitioner submitted that petitioner is legally wedded wife of deceased Sanjay Kumar Sonkar, who was working on the post of Sanitary Supervisor, Health Department, Nagar Nigam, Varanasi and died on 5.10.2020. After his death, petitioner is fully entitled for all terminal benefits. 6. Case was heard on 12.01.2023 and Court had directed the Municipal Commissioner, Nagar Nigam, Jhansi-respondent no. 2 to file personal affidavit as to why petitioner's pension as admissible under the Rules has not been paid to her. Upon which, personal affidavit of respondent no. 2 has been filed with the specific averment that in service book of deceased employee, nomination has been made in favour of his son, for the purpose of appointment on compassionate ground and brother, for other terminal benefits. It is also mentioned in the service book that deceased employee is having legal dispute with his wife. 7. Today, learned counsel for the petitioner submitted that terminal benefits of petitioner is governed by the provisions of U.P. Retirement Benefit Rules, 1961 (in short "Rules, 1961"), which clearly provides that for the purpose of family pension, nomination can be made only in favour of one or more family members and beyond family members, no nomination can be made. He next submitted that as per the definition given in Rules, 1961, brother below the age of 18 years is entitled for terminal benefits at Serial No. (5) as provided in Rule 3(v) of Rules, 1961 in the order of hierarchy. In the present case, undisputedly, petitioner is wife of deceased employee placed at Serial No. 1 as provided in Rule 3(i) of Rules, 1961 also having a son and she has never been legally separated. In the present case, undisputedly, petitioner is wife of deceased employee placed at Serial No. 1 as provided in Rule 3(i) of Rules, 1961 also having a son and she has never been legally separated. In support of his contention, he relied upon certain judgments of Apex Court, this Court as well as other Court on the same issue. Lastly, he submitted that a direction may be issued to respondents to pay all terminal benefits to the petitioner forthwith. 8. Sri Khalid Mahmood, advocate holding brief of Sri Iqbal Hussain, learned counsel for respondent nos. 2 to 4 reiterated that in service book, nomination of deceased employee has been made in favour of his son for the purpose of appointment on compassionate ground and brother for other terminal benefits, but about legal submission, he could not dispute the same. 9. I have considered the rival submissions raised by learned counsel for the parties and perused the record as well as judgment relied upon. 10. Before dealing with the aforesaid issue, it would be useful to reproduce certain definitions as given in Rules, 1961 for proper adjudication of the case. 11. Rule 3 deals with Family and reads as under; "(3) "Family" means the following relatives of an officer: (i) wife, in the case of any male officer; (ii) husband, in the case of a female officer; (iii) sons (including step-children and adopted children) (iv) unmarried and widowed daughters. (Including step-children and adopted children) (v) brothers below the age of 18 years and unmarried and widowed sisters (including step-brothers and step-sisters); (vi) father; (vii) mother; (viii) married daughters (including step-daughters), and (iv) children of a pre-deceased son" 12. Rule 5 deals with Death-cum-retirement Gratuity and reads as under; “(1) ..... (2) if an officer dies while in service a gratuity, the amount of which shall, subject to a minimum of 12 times and a maximum of 16½ times the emoluments, be an amount equal to one-fourth of the emoluments of the officer multiplied by the total number of six monthly periods of qualifying service, shall be paid to the person or persons on whom the right to receive the gratuity is conferred under sub-rules (1) to (8) of Rule 6 and if there is no such person, it shall be paid in the manner indicated in sub-Rule (9) of that rule.” 13. Rule 6(1) deals with the nomination and reads as under; “Nomination-(1). A Government servant shall, as soon as he acquires or if he already holds a lien on a permanent pensionable post, make a nomination conferring on one or more persons the right to receive any gratuity that may be sanctioned under sub-rule (2) or sub-rule (3) of the rule 5 and gratuity which after becoming admissible to him under sub-rule (1) of that rule is not paid to him before death. Provided that if at the time of making the Notification the officer has a family the nomination shall not be in favour of any person other than one or more of the members of his family.” 14. Rule-7 deals with the Family Pension, which reads as under; “Family Pension -(1). The family pension not exceeding the amount specified in sub-Rule (2) below may be granted for a period of ten years to the family of an officer who dies, whether after retirement or while still in service after completion of not less than 20 years qualifying service. Provided that the period of payment of family pension shall in no case extend beyond a period of five years from the date on which the deceased officer reached or would have reached the age of compulsory retirement.” 15. From the perusal of Rule 6 of Rules, 1961, it is apparently clear that in case, the officer is having a family, nomination shall not be made in favour of any other person except family members. In present case, undisputedly, deceased employee was having his family members and also he has made nomination for compassionate appointment in favour of his son, but for terminal benefits, it has been made in favour of his brother, which is not permissible in case his wife is alive as provided in Rule 3(3) & Rule 6 of Rule, 1961, which defines the family, nomination and hierarchy of entitlement. 16. In the case of (Gangubai Bhagwan Salawade & others vs. Smt. Chimanabai Suryabhan Salawade & others) reported in 2004 Vol. 106(4) Bombay, it has been held that at the time of making nomination, it must be made in favour of one of the members of his family. 16. In the case of (Gangubai Bhagwan Salawade & others vs. Smt. Chimanabai Suryabhan Salawade & others) reported in 2004 Vol. 106(4) Bombay, it has been held that at the time of making nomination, it must be made in favour of one of the members of his family. Relevant paragraph 5 of the judgment reads as under:- "It is no doubt true that once there is a nomination, the amounts must be paid over to the nominee under the Payment of Gratuity Act. A nominee can be any person who belongs to the family of the deceased. Section 6 of the Act makes it clear that if the employee has a family at the time of making nomination, the nomination must be made in favour of one of the members of his family. Any nomination made by the employee in favour of a person who is not a member of his family is void. If the employee at the time of making a nomination has no family but subsequently acquires a family, the nomination made earlier becomes invalid and a fresh nomination must be made by the employee in favour of the members of his family. "Family" has been defined under section 2(h) of the Act. In relation to a male employee the word includes his wife, his children whether married or unmarried, his dependent parents and the dependent parents of his wife and the widow and children of his predeceased son." 17. In Ram Chander Talwar and another vs. Devender umar Talwar and others; 2011 (2) AWC 1576 (SC), the Apex Court, while dealing with Section 45 ZA of the Banking Regulation Act, has held that nominee of depositor has right to receive money lying in account of depositor after his death but he is not owner of money, so received. In this context paragraph 5 of the aforesaid judgment is being reproduced as under:- "Section 45 ZA (2) merely puts the nominee in the shoes of the depositor after his death and clothes him with the exclusive right to receive the money lying in the account. It gives him all the rights of the depositor so far as the depositor's account is concerned. But by no stretch of imagination makes the nominee the owner of the money lying in the account. It gives him all the rights of the depositor so far as the depositor's account is concerned. But by no stretch of imagination makes the nominee the owner of the money lying in the account. It needs to be remembered that the Banking Regulation Act is enacted to consolidate and amend the law relating to banking. It is in no way concerned with the question of succession. All the monies receivable by the nominee by virtue of Section 45 ZA (2) would, therefore, form part of the estate of the deceased depsoitor and devolve according to the rule of succession to which the depositor may be governed." 18. Even, in case of nomination as per law laid down by the Apex Court, which authorized the person to only receive the benefits from such membership in the event of death of the person, who had nominated him. In fact, nomination does not create any right or title in the property and it is only to provide for the interregnum between the death and the full administration of the estate and does not confer any permanent right to the property forming part of estate of the deceased. 19. The similar dispute was again before this Court in Service Single No. 2532 of 2014 (Virendra Kumar Srivastava & Another Vs. The Hon'ble High Court of Judicature at Allahabad Through Re) dealing with the case in detail and Court has dismissed the petition vide order dated 07.04.2015 with following observations; "As far as the appointment under Dying in Harness Rules is concerned, it is established from the documents brought on record by the official respondents that Smt. Vinita Srivastava and Km. Shilpi Srivastava are the wife and daughter of the deceased. Furthermore, the petitioner do not fall within the definition of "family" under the 1974 Rules. Therefore, the action of the official respondents cannot be said to be unreasonable or legally unjustified. It may be added that during the course of arguments, it has been brought to the notice of the court that the petitioners have entered into a compromise with the wife of deceased Arvind Nath Srivastava, who is private respondent in the present proceedings. As per compromise, all post death beneifits of Late Arvind Nath Srivastava shall be paid in equal share to the petitioners. As per compromise, all post death beneifits of Late Arvind Nath Srivastava shall be paid in equal share to the petitioners. The wife-respondent shall receive family pension and the petitioners and other private respondents would have no objection with regard to compassionate appointment to Km.Shilpi Sriavasta. Having examined the matter in the light of the relevant Rules, referred to above, the compromise said to have been entered into between the parties, cannot be said to be a valid document in the eyes of law, as the same is against the provisions of law because in presence of real daughter and wife of the petitioner, the court cannot direct the official respondents to make payment of post death benefits in favour of the petitioners. Needless to say, that the court cannot go contrary to rule to recognize the compromise. In other words, by consent or agreement, parties cannot achieve what is contrary to law and the court is not bound to accept the compromise entered into between the parties to the legal proceedings. In view of the aforesaid detail discussions, the petitioner is not entitled for any relief and the writ petition is hereby dismissed. The official respondents shall make the payment of post death benefits, family pension and dealt the matter of compassionate appointment strictly in accordance with relevant rules." 20. In case of Chandra Kali Vs. State of U.P. and 7 others passed in Writ A No. 3288 of 2017 decided on 31.07.2019, Court has held that pension is to be disbursed as per provisions of Rules, 1961. The Rules clearly states that only eligible persons as defined in definition of “family” shall be entitled to receive family pension and member out of family member as defined in Rules, 1961 is not entitled for pension. Relevant paragraph of aforesaid judgment is quoted below; “As regards, eligibility to family pension, the pension is to be disbursed as per the provisions of the Rules, 1961. The Rules clearly state that only eligible person is entitled to receive family pension but where pension awarded ceases to be payable on the death or marriage of the recipient or for any other reason, it will be regranted to the persons next lower in the order mentioned in sub-rule (4) of Rule 7. The Rules clearly state that only eligible person is entitled to receive family pension but where pension awarded ceases to be payable on the death or marriage of the recipient or for any other reason, it will be regranted to the persons next lower in the order mentioned in sub-rule (4) of Rule 7. The Hindu second wife would not be eligible for family pension as long as the first wife is alive and has not remarried. There is no provision in the Rules for relinquishment of family pension in favour of another person. The eighth respondent would not fall within the definition of ''family' of the employee. The sixth and seventh respondent being sons of the deceased employees brother are also not family of the employee within the definition of ''family' under the Rules, 1961.” 21. In the present case, facts are not disputed. Nomination has been made in favour of brother for Gratuity, Leave Encashment and other terminal benefits, which is not permissible under Rule 3(3), Rule 5(1) & Rule 6 of Rules, 1961 in light of definition of family. Brother below the age of 18 years may be entitled for pensionary benefits in case other members of family mentioned in Rule 3(i)(ii)(iii) & (iv) of Rules, 1961 are not available. Civil Litigation or matrimonial dispute between husband and wife cannot be a ground to exclude the wife from terminal benefits. Even, if nomination has been made in favour of some other person or any reference has been made with regard to a legal or matrimonial dispute with wife in service book, that cannot be a ground for excluding the wife for gratuity, pension & other terminal benefits, unless a valid divorce decree has been passed between husband and wife. No such decree of divorce is on record between deceased employee and his wife, petitioner before this Court. 22. Therefore, after death, gratuity, pension and terminal benefits shall be paid strictly in accordance with Rule 3(3), Rule 5(1) & Rule 6 of Rules, 1961 and any nomination made in service book contrary to the Rules, 1961 cannot be accepted. Petitioner being legally wedded wife is fully entitled for terminal benefits. 23. Accordingly, petition is allowed. 24. A writ of mandamus is issued directing the respondent no. Petitioner being legally wedded wife is fully entitled for terminal benefits. 23. Accordingly, petition is allowed. 24. A writ of mandamus is issued directing the respondent no. 2 Municipal Commissioner, Nagar Nigam, Jhansi to pay all the terminal benefits to the petitioner within a period of two months from the date of production of certified copy of this order after completing all the formalities required under the Rules. 25. No order as to costs.