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2024 DIGILAW 521 (ALL)

Kamar Jahan v. State Of U. P.

2024-02-20

J.J.MUNIR

body2024
JUDGMENT : 1. This writ petition has been instituted by the petitioner praying that a mandamus be issued commanding the respondents to grant family pension to her along with arrears with effect from 09.11.2012, besides due interest. 2. The facts of the case are that the petitioner's husband, the late Mustafa, was appointed a Safai Karmchari on 31.12.2002 with the Nagar Panchayat, Machhlishahr, District Jaunpur. He was a compassionate appointee and died in harness. He rendered good services to the Nagar Panchayat. The petitioner's husband died on 08.11.2012, leaving behind him his widow, three sons and a daughter as his heirs and legal representatives. 3. It is the petitioner's case that the deceased employee’s heirs and legal representatives are his dependent family members. The death-cum-retirement benefits payable were paid to the petitioner in installments which include gratuity and dues on account of leave encashment. It is pleaded that gratuity paid was a sum of Rs. 38,800/- and leave encashment a sum of Rs. 1,47,000/-. The petitioner says that the family pension, however, was not paid to her and when she asked for it, the same was denied verbally by the respondents saying that the petitioner's husband had not put in qualifying service to earn a retirement pension for himself and a fortiori, family pension for the family after his demise. It is the petitioner's case that the service conditions of the petitioner who was a class IV employee are governed by the U.P. Nagar Palika Non-Centralized Services Retirement Benefit Regulation, 1984 (for short, 'the Regulation of 1984'). 4. Learned Counsel for the petitioner has drawn the attention of the Court to the Circular dated 18.04.2016, which says that in compliance with the order dated 28.01.2016 passed by the Lucknow Bench of this Court in Writ Petition No. 1685 (S/S) of 2016, the benefit of Article 468 of the U.P. Civil Service Regulations is to be extended to employees for the purpose of reckoning their qualifying service. It is mentioned in the said circular that in calculating the length of service, fractions of a half year equal to three months and above shall be treated as a completed half year and reckoned as qualifying service. 5. It is mentioned in the said circular that in calculating the length of service, fractions of a half year equal to three months and above shall be treated as a completed half year and reckoned as qualifying service. 5. It is submitted by the learned Counsel for the petitioner that under Regulation 7(1) of the Regulations of 1984, an employee, who has completed 20 years qualifying service before retirement or has completed 20 years of such service and dies while in service, would entitle his family to family pension. It is further pointed out that vide Note (1) appended to Regulation 7(1) of the aforesaid Regulations, the Pension Sanctioning Authority may, in exceptional circumstances in his discretion, award family pension to the family of an official, who dies before completing 20 years qualifying service, but after completing not less than ten years. 6. It is argued by the learned Counsel for the petitioner that applying the provisions of Article 468 of the U.P. Civil Service Regulations, which have been adopted uniformly for application in all cases of reckoning 10 years qualifying service for purposes of pension in all departments of the Government and Offices, the petitioner would be entitled to reckon the deceased's services of 9 years, 10 months and 7 days as a completed half year, and, therefore, 10 years. 7. The further submission advanced by the learned Counsel for the petitioner is that once the deceased's service is regarded as 10 years, the Pension Sanctioning Authority, under Regulation 7(1) of the Regulations of 1984 in accordance with Note (1), must exercise his discretion reasonably on objective parameters. 8. In the personal affidavit filed on behalf of the Commissioner, Varanasi Division, Varanasi, which is being treated as a counter affidavit, the stand taken is that the U.P. Nagar Palika Centralized Service Retirement Benefit (5th Amendment) Regulations came into force in the year 2016 and the petitioner cannot claim benefit of the amendment made to the Regulations of 1984 by the 5th Amendment, inasmuch as the petitioner's husband, the deceased employee here, died on 08.11.2012 much before the enforcement of the amended Regulations. It is urged that the petitioner's rights would be governed by the pre-amended Regulations of 1984, that is to say, without reference to the 5th Amendment, 2016. 9. It is urged that the petitioner's rights would be governed by the pre-amended Regulations of 1984, that is to say, without reference to the 5th Amendment, 2016. 9. It is pleaded that under Regulations 7(1) of the Regulations of 1984, the Pension Sanctioning Authority is entitled to sanction in exceptional circumstances, in his discretion, pension upon completion of a minimum service of 10 years, in a case where the employee died before completing 20 years. It is said in paragraph no. 5 of the Commissioner's affidavit that since the total length of service of the petitioner's husband was less than 10 years at the time of his demise, family pension cannot be sanctioned for him. It is averred in paragraph no. 6 of the affidavit filed on behalf of the Commissioner that by notification dated 16.12.2016 issued by the Department of Urban Development, Regulations 6 and 7 of the Regulations of 1984 were amended and under the Amended Regulation vide Note (1) to paragraph 7(1), provision is made to extend the benefit of family pension after completion of less than 10 years service in case of a deceased employee, but that would not apply to the petitioner's case because her husband died prior to notification of the Amended Regulations on 16.12.2016. In paragraph no. 1(2) of the notification through which the amendment to the Regulations have been enforced, it is stipulated that the amendment would come into force with effect from the date of its publication in the gazette. It is urged that the notification was published in gazette on 16.12.2016, and, therefore, the amended Regulations of 2016 would not apply to the petitioner, whose husband died way back on 08.11.2012. In paragraph no. 7 of the affidavit filed by the Commissioner, it is said that the Circular dated 18.04.2016 issued by the Government regarding Article 468 of the U.P. Civil Service Regulations, which provides for reckoning of fractions of half a year equal to three months and above to be a completed half year for the purpose of qualifying service, would also not apply to the petitioner's case since the clarification about Article 468 was issued by the Government on 18.04.2016, whereas the petitioner's husband died on 08.11.2012. 10. There is, a further personal affidavit filed on behalf of the Deputy Director, Local Fund Audit Department, Varanasi Division, Varanasi. 10. There is, a further personal affidavit filed on behalf of the Deputy Director, Local Fund Audit Department, Varanasi Division, Varanasi. The Deputy Director has taken the same stand as the Divisional Commissioner. The Commissioner is the competent Pension Sanctioning Authority. 11. Mr. S.K. Srivastava, learned Counsel for the Nagar Panchayat, Machhlishahr, District Jaunpur, who are arrayed as respondent nos. 3 and 4, has waived opportunity to file a counter affidavit on behalf of the said respondents. Thus, the petitioner's case as against respondent nos. 3 and 4 is unrebutted. 12. Upon hearing the learned Counsel for the parties, this Court finds that it would be apposite to quote verbatim the provisions of Regulation 7(1) of the Regulations of 1984, including the amendments brought about by the amended Regulations of 2016 with effect from 16.12.2016. Regulation 7(1) pre and post amendment reads: ^^fofu;e&7 dk la'kks/ku 5& mDr fofu;ekoyh esa fofu;e&7 esa] uhps LrEHk&1 esa fn;s x;s mifofu;e¼1½ ds LFkku ij LrEHk&2 esa fn;k x;k mifofu;e j[k fn;k tk;sxk] vFkkZr LrEHk&1 fo|eku mifofu;e 7¼1½ ,sls in/kkjh ds] ftldh pkgs lsokfuo`Rr ds i'pkr ;k de ls de chl o"kZ dh vgZdkjh lsok iwjh djus ds i'pkr lsok esa jgrs gq, e`R;q gks tk;] ifjokj dks nl o"kZ dh vof/k ds fy, ikfjokfjd isa'ku nh tk ldrh gS] ftldh /kujkf'k mifofu;e¼2½ esa fofufnZ"V /kujkf'k ls vf/kd u gksxhA fVIi.kh%& ¼1½ isa'ku&Lohd`fr izkf/kdkjh] vkiokfnd ifjfLFkfr;ksa esa] Lofoosdkuqlkj fdlh ,sls in/kkjh ds ifjokj dks] ftudh e`R;q chl o"kZ dh vgZdkjh lsok iwjh djus ds iwoZ fdUrq de ls de nl o"kZ dh vgZdkjh lsok iwjh djus ds i'pkr gks tk;] ikfjokfjd isa'ku fn;s tkus ij fopkj dj ldrk gSA ¼2½ ,sls ekeyksa esa] tgk¡ vgZdkjh lsok fofgr U;wure ls de gks] ogka bl deh dks ekQ ugha fd;k tkuk pkfg, LrEHk&2 ,rn~}kjk izfrLFkkfir mifofu;e 7¼1½ ikfjokfjd isa'ku ,sls in/kkfj;ksa ds ifjokjksa dks vuqeU; gksxh] ftudh e`R;q lsokdky esa vFkok lsokfuo`fRr ds i'pkr gq;h gks] c'krsZ fd e`rd in/kkjh bl fofu;ekoyh ds v/khu izfrdkj] v'kDr] lsokfuo`fRr ;k vf/kof"kZrk isa'ku izkIr dj jgks gks vFkok izkIr fd;s tkus dk gdnkj FkkA ,sls in/kkjdksa ds ifjokj Hkh ftudh bl fofu;ekoyh ds v/khu isa'ku dk gdnkj gksus ds iwoZ lsokdky esa e`R;q gks x;h gks] ikfjokfjd isa'ku ds gdnkj gksaxs] c'krsZ fd e`rd in/kkj.k dh fu;qfDr fu;ekuqlkj dh x;h gksA 13. This Court must notice at once that the stand taken by the Divisional Commissioner in paragraph no. This Court must notice at once that the stand taken by the Divisional Commissioner in paragraph no. 6 of the personal affidavit that his discretion to extend the benefit of family pension, upon the deceased employee completing 10 years service but less than 20 years, has been brought in through the 5th Amendment to the Regulations of 1984 with effect from 16.12.2016, which would not apply to the petitioner's case her husband having died before the date of this amendment is not at all tenable. The reason is that a perusal of the Regulation 7(1) of the Regulations of 1984 in its pre-amended form would show that discretion to sanction family pension after 10 years of qualifying service, but before completion of 20 years is a provision that is there vide Note (1) to Regulation 7(1); post amendment, a different provision has been introduced and the petitioner does not seek benefit thereof at all. 14. The only issue is that the petitioner's husband never completed ten years service and died shy by a month and 23 days of completing ten years service. The issue therefore is, if the petitioner's husband's services rendered for a period of 9 years, 10 months and 7 days can be regarded as 10 years, squaring of the fraction to a unit. In this regard, reference may be made to the provisions of Article 468 of the U.P. Civil Service Regulations that find place in Chapter IX relating to 'Amount of Pensions'. Article 468 of the U.P. Civil Service Regulations reads: "468. The amount of pension that may be granted is determined by length of service. In calculating the length of qualifying service, factions of a half year equal to three month and above shall be treated as a completed one half year and reckoned as qualifying service." 15. This issue fell for consideration before a learned Single Judge of this Court in Karta Ram vs. State of U.P. and others, 2016 (3) AWC 3076 (LB) . In Karta Ram (supra), it was held: "4. This issue fell for consideration before a learned Single Judge of this Court in Karta Ram vs. State of U.P. and others, 2016 (3) AWC 3076 (LB) . In Karta Ram (supra), it was held: "4. The concerned authority while passing the impugned order dated 05.07.2014 has rightly stated that the services rendered on work charged basis can not be counted for the purposes of calculation of qualifying services, but has omitted to consider the provisions of Regulation 468 of the Civil Service Regulations which provides that the amount of pension that may be granted is determined by length of service. In calculating the length of qualifying service, fractions of a half year equal to three month and above shall be treated as a complete one-half year and reckoned as qualifying service. 5. In the light of the said provision, as the petitioner had put in 9 years 10 months and 5 days in service, fraction of a half year above three months is four months and 5 days, therefore, the case appears to be covered by Regulation 468 and the said period is liable to be treated as complete one-half year, which, if the facts as stated by the petitioner are correct, entitle the petitioner to ten years qualifying service for pension, but this aspect of the matter has not been considered while passing the impugned order." 16. It is acting on the aforesaid remarks of this Court that the circular dated 18.04.2016 was issued by a Secretary to the Government in the Department of Finance, addressed to all Principal Secretaries and Secretaries of various departments in the Government, besides Head of Departments and Heads of Offices in Government Establishments of the State. This circular, a copy of which is annexed as Annexure No. 4 to the writ petition and also relied upon by the Commissioner, appending it to his affidavit, is not constitutive in nature; it is declaratory. It declares the existing position of the law that has always been and does not bring about a change to the law, unlike the 5th Amendment to the Regulations of 1984, about which no issue is involved here. The 5th amendment is, no doubt, amendatory, and, therefore, constitutive. It would apply prospectively from the date of its enforcement and that is the date of its publication. The 5th amendment is, no doubt, amendatory, and, therefore, constitutive. It would apply prospectively from the date of its enforcement and that is the date of its publication. The Commissioner is absolutely wrong in thinking that the Government's circular clarifying the position of the law about how Article 468 of the Civil service Regulations would work to reckon the fraction of less than three months for the purpose of qualifying service, is prospective in nature. The said circular does not bring about any change, as already remarked. 17. This Court, particularly, notices that it is not at all the Commissioner's stand or that of the Deputy Director, Local Fund and Audit Department, Varanasi that Article 468 of Civil Service Regulations does not apply to the Nagar Panchayat Establishment. Rather, the Commissioner says that it does apply in view of the circular dated 18.04.2016, but prospectively. That position of the law, we have already held to be utterly misunderstood by the Commissioner. The result would be that in accordance with Article 468 of the Civil Service Regulation, the petitioner's husband’s period of service which is just short by a month and 23 days of 10 years, would have to be reckoned as a completed one half year because it is more than three months, short of a half year. It would, therefore, have to be reckoned as 10 years. Once it is held that the petitioner has completed 10 years of service, the Commissioner is obliged to consider the petitioner's case for grant of family pension in accordance with Note (1) appended to the unamended Regulation 7(1) of the Regulations of 1984. 18. In the result, this petition succeeds and is allowed. A mandamus is issued to the Divisional Commissioner of Varanasi, ordering him to consider the petitioner's case for sanction of family pension in accordance with Note(1) to Regulation 7(1) of the Regulations of 1984 (unamended) within a month of the receipt of a copy of this judgment in accordance with law and the guidance here. 19. There shall be no order as to costs. 20. Let this order be communicated to the Commissioner, Varanasi Division, Varanasi by the Registrar (Compliance).