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Allahabad High Court · body

2025 DIGILAW 1205 (ALL)

Sheela Dubey v. State of U. P.

2025-10-06

J.J.MUNIR

body2025
JUDGMENT : J.J. MUNIR, J. 1. This writ petition is directed against an order dated 28.01.2023, rejecting the petitioner's claim for grant of family pension. By amendment made to the writ petition under orders of this Court, the petitioner seeks a writ in the nature of certiorari to quash the Uttar Pradesh Palika (Centralized) Services Rules, 1966 (for short, 'the SERVICE RULES of 1966') to the extent that these do not provide similar treatment in the matter of grant of family pension to employees of the Nagar Nigam, Kanpur Nagar, on one hand, and members of the centralized service, on the other. A further writ, order or direction in the nature of certiorari is prayed to quash the amendments made vide Notification dated 11.01.1988 (for short, ‘the Amendment of 1988’), published in the Gazette, to the extent it repeals Regulation 6 of the Kanpur Nagar Mahapalika Employees Pension and General Provident Fund Regulation s, 1962 (for short, 'the Regulations of 1962'). 2. Smt. Sheela Dubey, the petitioner, is a widow. She is the daughter of Saraswati Narayan Tiwari, who was a Class-III employee with the Nagar Nigam, Kanpur Nagar (for short, 'the Nigam'). It is not in dispute that Saraswati Narayan Tiwari retired from the service of the Nigam in the year 1992, earning a retirement pension, amongst other post retiral benefits. There is also no cavil about the fact that Saraswati Narayan Tiwari received his retirement pension until his demise on 18.11.2013. After he passed away, his widow, Smt. Katyayani Tiwari claimed and was paid a family pension in accordance with rules. Katyayani Tiwari received her retirement pension until her demise on 23.07.2016. This course of nature would not have brought misfortune for the petitioner, but for the fact that the petitioner's husband, Anil Kumar, pre-deceased both his father-in-law and mother-in-law, exiting this mortal world on 11.05.2012. 3. Whatever the late Anil Kumar’s financial affairs be, it is not in dispute that the petitioner, after her husband’s demise, came over to her parents’ house and lived with them. After her father’s demise, she stayed on with her mother. It is her case that the only source of income, after her husband’s demise, was her father’s retirement pension, till he was alive, and, after his death, the family pension that her mother received for her father’s services. After her father’s demise, she stayed on with her mother. It is her case that the only source of income, after her husband’s demise, was her father’s retirement pension, till he was alive, and, after his death, the family pension that her mother received for her father’s services. The petitioner claimed a family pension, after her mother’s demise, for her father’s services, she being a widowed daughter, who had become a widow before her father’s demise and was entirely dependent upon his pension for her sustenance. 4. In order to support her claim to receive a family pension, on account of her father’s demise, being a widowed daughter, dependent upon him, and after him her mother, the petitioner relied upon Government Orders dated 03.12.2012, 20.05.2014, 11.11.2019 and 07.04.2022. She said that these Government Orders entitled a widowed daughter, circumstanced as she was, to receive a family pension for her father’s services, rendered with the Nigam. We would make necessary allusion to the last mentioned Government Orders, four in number, during the course of this judgment. She put forward her claim to family pension, annexing all relevant documents, which included a certificate of family members of the deceased, besides the Government Orders, on which she relied. This claim was made before the Nagar Ayukt of the Nigam. There was a repetition and reminder of the claim before the Nagar Ayukt, but to no avail. There is on record a communication dated 16.04.2022 from the Nigam to the Director, Local Body, U.P., Lucknow, seeking guidance regarding the petitioner’s claim. 5. The petitioner’s claim was not decided for a considerable period of time, compelling her to institute Writ-A No.10569 of 2022, seeking necessary directions to the Nigam. This Court vide order dated 29.07.2022 disposed of the writ petition, granting liberty to the petitioner to move a fresh representation before the Nigam, within two weeks of the date of the order made in the writ petition, and the Nigam was directed to decide the petitioner’s representation, within six weeks of the date of submission thereof, along with a certified copy of this Court’s order. Though, a representation dated 08.08.2022 was filed afresh by the petitioner before the Nagar Ayukt of the Nigam, her claim was not considered or decided, as directed by this Court. Though, a representation dated 08.08.2022 was filed afresh by the petitioner before the Nagar Ayukt of the Nigam, her claim was not considered or decided, as directed by this Court. This led the petitioner to institute Contempt Application (Civil) No.6887 of 2022, which was again disposed of by this Court vide order dated 18.11.2022, saying that though a prima facie case of willful disobedience was made out, no notice was being issued to the contemnor at that stage. Instead, two months’ further time was granted to the Nagar Ayukt to comply with the order dated 29.07.2022 passed by this Court in the Writ Petition. It was after this much of toil that the Nagar Ayukt moved his pen and rejected the petitioner’s representation by means of the impugned order dated 28.01.2023. We would advert to the reasons that the Nagar Ayukt has assigned to decline the petitioner’s claim and the soundness thereof, again, later in this judgment. 6. Aggrieved, this writ petition has been instituted. 7. Pending the writ petition, the petitioner applied to incorporate pleas, amending it. She also sought amendments to bring in further reliefs. The relief, challenging the vires of the SERVICE RULES of 1966 to the extent that these do not provide for family pension to members of the non-centralized service as violative of Articles 14 and 16 of the Constitution, was also incorporated. In addition, a challenge was laid to the Amendment of 1988, to the extent that it deletes Regulation 6 of the Regulations of 1962, which provided for grant of family pension to the widowed daughter, subject to the conditions enumerated there and the order of priority given. It must be remarked here that whereas the vires of the SERVICE RULES of 1966 was challenged on the ground of their constitutionality, alleging a violation of Articles 14 and 16 of the Constitution, the Amendment of 1988 to the Regulations of 1962, was limited in scope to the amendment being ultra vires Section 548 (1)(f) of the Uttar Pradesh Municipal Corporation Act, 1959 (for short, 'the Act of 1959'). 8. When this petition was instituted way back in the year 2023, a notice of motion was issued and parties exchanged affidavits. These affidavits were exchanged on unamended pleadings. Nevertheless, the parties having exchanged affidavits, on 06.09.2023 the writ petition was admitted to hearing, which commenced forthwith. It was heard on a number of dates. 8. When this petition was instituted way back in the year 2023, a notice of motion was issued and parties exchanged affidavits. These affidavits were exchanged on unamended pleadings. Nevertheless, the parties having exchanged affidavits, on 06.09.2023 the writ petition was admitted to hearing, which commenced forthwith. It was heard on a number of dates. Midway during hearing, the petitioner moved an application to seek those amendments that we have spoken of already. The amendment application, which was moved in Court on 16.12.2023, was granted and so was time to the Nigam to file a supplementary counter affidavit to the amended pleas. A supplementary counter affidavit dated 01.05.2024 and a supplementary rejoinder affidavit dated 13.05.2024 were then filed. 9. Heard Mr. Aditya Prakash Verma, learned Counsel for the petitioner and Mr. Yashwant Singh, learned Counsel appearing on behalf of respondent Nos. 1 and 2. 10. We have carefully considered the submissions advanced by learned Counsel on both sides and perused the record. 11. The reasoning given by the Nagar Ayukt in writing the impugned order is that the Mukhya Nagar Lekha Parikshak of the Nigam had expressed opinion that vide Government Order dated 11.11.2019, the entitlement to receive pension/ family pension, as provided vide Government Orders dated 03.12.2012 and 20.05.2014 for the retired employees/ families of deceased employees of the Nigam, had been adopted under Rule 47 of the SERVICE RULES of 1966. It is then remarked that the Regulations of 1962 apply to employees of the non-centralized service of the Nigam, whereas the SERVICE RULES of 1966 apply to members of the centralized service. It is opined by the Nagar Ayukt that the Government Orders, providing for benefit of pension/ family pension, payable to retired employees of the Nigam and their unmarried/ widowed/ divorced daughters, would not be available to such employees, who belong to the non-centralized service of the Nigam. These benefits provided by the Government Orders would be available to employees of the Nigam, governed by the SERVICE RULES of 1966, since the Government Orders had been adopted under the SERVICE RULES of 1966 alone; not under the Regulations of 1962. The claim of the petitioner was, accordingly, denied. The four Government Orders, that are subject matter of all reasoning carried in the impugned order, are dated 03.12.2012, 20.05.2014, 11.11.2019 and 07.04.2022. We have perused these Government Orders that are on record. 12. The claim of the petitioner was, accordingly, denied. The four Government Orders, that are subject matter of all reasoning carried in the impugned order, are dated 03.12.2012, 20.05.2014, 11.11.2019 and 07.04.2022. We have perused these Government Orders that are on record. 12. Government Order dated 03.12.2012 makes elaborate provision as to persons entitled to receive family pension in the event of a serving or retired government employee’s death. It classifies the heirs of a government employee into Category-I and Category-II and details their inter se priority, in terms of which they would be entitled to family pension. In the presence of a family member, placed higher than the other, the one, lower down in order of entitlement, would be excluded. What we notice is that Government Order dated 03.12.2012 makes provision for entitlement to family pension and its regulation for family members or dependents of government employees. It per se does not apply to a local body, like the Nigam, governed by its own Act, to wit, the Act of 1959. 13. Government Order dated 20.05.2014 further issues guidelines for provision of family pension to dependents and family members entitled, but again in relation to government employees. It has nothing to do with employees of the Nigam, whether belonging to the centralized service or the non-centralized service. 14. Then falls for consideration the Government Order dated 11.11.2019, which appears to be decisive, if one were to go by a certain vantage alone, without looking for the tenability of the petitioner’s claim elsewhere. This Government Order dated 11.11.2019 provides that the Government Orders dated 03.12.2012 and 20.05.2014, providing and regulating payment of family pension to dependent family members of a deceased government employee, would stand adopted under Rule 27 into the SERVICE RULES of 1966, the financial burden whereof would be borne by the Local Body concerned and the Government would not extend any additional financial aid. The result would be that the entitlement under the Government Orders dated 03.12.2012 and 20.05.2014 would stand extended to employees, who are governed by the SERVICE RULES of 1966, that is to say, employees of the Nigam, who belong to the centralized service of the Nigam. The Government Orders dated 03.12.2012 and 20.05.2014 would not apply to such employees, who do not belong to the centralized service, like the petitioner’s father. 15. The Government Orders dated 03.12.2012 and 20.05.2014 would not apply to such employees, who do not belong to the centralized service, like the petitioner’s father. 15. There is then a Government Order dated 07.04.2022, which adds to those eligible for a family pension, a widowed daughter. Now, this Government Order, again, is one issued in the context of government employees alone. But, by virtue of Government Order dated 11.11.2019, this too would stand adopted or become applicable under the SERVICE RULES of 1966 to such of the employees of the Nigam, who belong to the centralized service. This Government Order dated 07.04.2022 provides for family pension to such widowed daughters of an employee, where the daughter’s husband has died before the death of the government employee or that of his widow, in case the widow is already receiving a family pension. 16. Therefore, if one were to look at the Government Orders dated 03.12.2012, 20.05.2014, 11.11.2019 and 07.04.2022 alone, the reasoning adopted by the Nagar Ayukt would seem flawless. But, it is not. 17. It is common ground that entitlement of the petitioner to receive family pension is governed by the Regulations of 1962, that apply to dependent relatives of a deceased employee of the Nigam, entitled to receive family pension after his demise, whether in harness, or after the employee’s retirement. It deals with other matters regarding pension and gratuity too. Regulation 6 of the Regulations of 1962, as it originally stood, read: 18. By the Amendment of 1988, the whole of Regulations 6, 6- Ka and 6-Kha were deleted, amongst others. Relevant part of the Amendment of 1988 to the Regulations of 1962 reads: 19. It was argued on behalf of the Nigam by Mr. Yashwant Singh very forcefully that the entitlement to receive family pension under the Regulations of 1962 came to an end in view of the Amendment of 1988, deleting Regulation 6. He submits that the Government Orders, on which the petitioner relies, have been adopted under the SERVICE RULES of 1966, but not under the Regulations of 1962. The SERVICE RULES of 1966 apply to employees of the centralized service, serving the Nigam, but not the non-centralized employees, like the petitioner’s father. According to Mr. He submits that the Government Orders, on which the petitioner relies, have been adopted under the SERVICE RULES of 1966, but not under the Regulations of 1962. The SERVICE RULES of 1966 apply to employees of the centralized service, serving the Nigam, but not the non-centralized employees, like the petitioner’s father. According to Mr. Yashwant Singh, therefore, there is no basis for the petitioner to urge her claim for a family pension, which she appears to do on the basis of Government Orders not at all applicable. 20. We assume that the petitioner bases her claim upon the Regulations of 1962, but again it is trite for the respondents to say that Regulation 6 of the Regulations of 1962 has been omitted by the Amendment of 1988, excluding from the Regulations, the provision for grant of a family pension to the dependents of a deceased employee of the Nigam. The Regulations of 1962 no doubt had made elaborate provisions for the order of entitlement to family pension amongst the dependents of a deceased employee and the petitioner’s case would seem to figure there. No person, entitled under the Regulations of 1962 to a superior claim to family pension, on account for the deceased’s services, ever came forward, after the deceased’s widow’s demise. But, this is all besides the point since Regulation 6 of the Regulations of 1962 has been omitted by the Amendment of 1988. 21. What, however, seems to have escaped attention of the respondents is the fact that the Amendment of 1988 was not a measure of denial of family pension altogether. It simply introduced a new regime about that entitlement. The Amendment of 1988 made applicable all provisions relating to grant of family pension and its revision from time to time, on the same terms as that admissible to government employees. For the purpose, the Amendment of 1988 provided that the Uttar Pradesh Retirement Benefit Rules, 1961 (for short, ‘the Rules of 1961’), together with all amendments thereto made from time to time, would apply for the purpose of grant, regulation and rate of family pension. The Government Orders issued for government employees, again from time to time, prescribing increments to family pension etc., would ipso facto apply to employees of the Nigam, which means employees other than those, who are members of the centralized service, governed by the SERVICE RULES of 1966. The Government Orders issued for government employees, again from time to time, prescribing increments to family pension etc., would ipso facto apply to employees of the Nigam, which means employees other than those, who are members of the centralized service, governed by the SERVICE RULES of 1966. The relevant part of the Amendment of 1988, which escaped the Nagar Ayukt’s attention, while passing the order impugned, is that Clauses (1) to (9) of Regulation 7, were omitted and substituted by very different provisions, numbered as Clauses (1), (2), (3), (4) and (5), which read: 22. In place of Regulation 12(2) of the Regulations of 1962, the following Regulation was substituted: 23. Under the Rules of 1961, the entitlement to family pension is governed by Rules 6 and 7, which read: “ PART III FAMILY PENSION 7. Family Pension. —(1) A 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. Notes.—(1) Government may, in exceptional circumstances, consider at their discretion the award of family pension of the family of an officer who may die before completing 20 years' qualifying service but after completing not less than 20 years' qualifying service. (2) In cases where the qualifying service is less than the prescribed minimum the deficiency should not be condoned by invoking the provisions of Article 423 (1) of the Civil Service Regulations. (3) The amount of family pension will be— (a) in the event of death while in service, one-half of the superannuation pension which would have been admissible to the officer had he retired on the date following the date of his death, and (b) in the event of death after retirement, one-half of the pension sanctioned to him at the time of retirement : Provided that the amount of family pension will be subject to a maximum of Rs. 150 per mensem and a minimum of Rs. 150 per mensem and a minimum of Rs. 30 per mensem : Provided further that the minimum pension will not in any case, exceed the full amount of the pension sanctioned to the deceased officer at the time of his retirement or, in case he dies while in service, the pension that would have been admissible to him if he had retired on a superannuation pension on the date following the date of his death. Note.—The amount of family pension will be reduced by the amount of pension commuted, if any, by the pensioner before his death. For example, if the ordinary pension was Rs. 90 per mensem and an amount of Rs. 30 out of this had been commuted, the amount of family pension will be Rs. 90/2-30=Rs. 15 per mensem. (3) No pension shall be payable under this Part— (a) to a person mentioned in clause (b) of sub-rule (4) below, unless the pension sanctioning authority is satisfied that such person was dependent on the deceased officer for support; (b) to an unmarried female member of the family, in the event of her marriage; (c) to a widowed female member of the family, in the event of her remarriage; (d) to a brother of the deceased officer on his attaining the age of 18 years; and (e) to a person who is not a member of the deceased officer's family. (4) Except as may be provided by a nomination under sub-rule (5) below: (a) a pension sanctioned under this Part shall be granted— (i) to the eldest surviving widow, if the deceased was a male officer or to the husband, if the deceased was a female officer; (ii) failing the widow or husband, as the case may be, to the eldest surviving son; (iii) failing (i) and (ii) above, to the eldest surviving unmarried daughter; (iv) these failing, to the eldest widowed daughter; and (b) in the event of the pension not becoming payable under clause (a) the pension may be granted— (i) to the father; (ii) failing the father, to the mother; (iii) failing the father and mother both, to the eldest surviving brother below the age of 18; (iv) these failing, to the eldest surviving unmarried sister; (v) these failing (i) to (iv) above, to the children of a predeceased son in the order it is payable to the children of the deceased officer under clause (a) (ii), (iii) and (iv), above. Note.—The expression "eldest surviving widow" occurring in clause (a) (i) above, should be construed with reference to the seniority according to the date of marriage with the officer and not with reference to the age of surviving widows. (5) A Government Servant shall immediately after his confirmation, make a nomination in Form "E" indicating the order in which a pension sanctioned under his part should be payable to the members of his family, and to the extent it is valid, the pension will be payable in accordance with such nomination provided the nominee concerned is not ineligible, on the date on which the pension may become payable to him or her to receive the pension under the provisions of sub-rule (3). In case the nominee concerned is or has become ineligible to receive the pension under the said sub-rule, the pension shall be granted to the person next lower in the order in such nomination. The provisions of sub-rules (5) (b), (7) and (8) of Rule 6 shall apply in respect of nominations under this sub-rule. (6) (a) A pension awarded under this part shall not be payable to more than one member of the deceased officer's family at the same time. The provisions of sub-rules (5) (b), (7) and (8) of Rule 6 shall apply in respect of nominations under this sub-rule. (6) (a) A pension awarded under this part shall not be payable to more than one member of the deceased officer's family at the same time. (b) If a pension awarded under this part ceases to be payable before the expiry of the period mentioned in the proviso to sub-rule (1) on account of death or marriage of the recipient or any other cause, it will be regranted to the person next lower in the order mentioned in sub-rule (4) or to the person next lower in the order shown in the nomination under sub-rule (5), as the case may be, who satisfies the other provisions of this part. (7) A pension sanctioned under this part will be tenable in addition to any extraordinary pension, gratuity or compensation that may be granted to the members of an officer's family under the existing Rules or Acts. (8) Future good conduct of the recipient is an implied condition of every grant of pension under this part. Government reserves to themselves the right of withholding or withdrawing such pension or any part thereof, if the recipient be convicted of serious crime or be guilty of grave misconduct. Decision of the Government in such matters shall be final.” [** extracted from Service Laws in Uttar Pradesh by Nitin Chopra, published by Manav Law House 1 st Edition] (emphasis by Court) 24. As we read Clauses (1), (2), (3), (4), (5) and (6) of Regulation 7 of the Regulations of 1962, the entire scheme for entitlement, rate of family pension and its revision under the Rules of 1961, would apply to employees of the Nigam, who do not belong to the centralized service, as is the case with the petitioner’s father. If one were to go by the Rules of 1961, the petitioner’s entitlement to receive family pension on account of her father’s services, is clearly made out under Rule 7(4) (iv) of the said Rules. This entitlement would be one under the Regulations of 1962, as amended by the Amendment of 1988, read with the Rules of 1961, applicable to government servants. This entitlement would be one under the Regulations of 1962, as amended by the Amendment of 1988, read with the Rules of 1961, applicable to government servants. In short, the entire regime applicable to government servants regarding entitlement to family pension, for the dependents of a deceased government servant, would now apply to employees of the Nigam, not belonging to the centralized service. 25. It is seen that in place of Clauses (1) to (9) of Regulation 7, completely different Clauses, numbered as (1) to (5), have been substituted in Regulation 7 of the Regulations of 1962. The purport of these clauses brought in by the Amendment of 1988 is clearly that the provisions of the Rules of 1961, relating to government servants, would automatically become applicable to employees of the Nigam, not governed by the SERVICE RULES of 1966. The Rules of 1961 have been made applicable for all purposes relating to pension and family pension, including entitlement to family pension, as these apply to government employees. It has already been noticed that under the Rules of 1961, the petitioner, a widowed daughter, widowed during the lifetime of her father, a retired pensioner, upon whom she was dependent, would be entitled under Rule 7(4) (iv). 26. There is yet another point made by Mr. Verma on the interplay of the rules applicable, which we think favourably bear on the petitioner’s entitlement to receive family pension. Under Regulation 7-A of the Regulations of 1962, it is provided: 27. The Amendment of 1988, as would be seen, omits Regulations 2(2) and (3), 4, 6, 6-Ka, 6-Kha and 7. But, Regulation 7-A has not been omitted and this regulation clearly indicates that in matters of entitlement, wherever there is nothing to the contrary, provisions relating to gratuity, pension, which includes family pension, besides general provident fund, the Rules of 1961, as amended from time to time, would apply. The Government Orders issued regarding these matters, from time to time would also be applicable. 28. Now, if this is the position, we have already noticed that sub- Rule (4) of Rule 7 of the Rules of 1961, clearly provides for the entitlement of a widowed daughter, circumstanced as the petitioner. The Government Orders issued regarding these matters, from time to time would also be applicable. 28. Now, if this is the position, we have already noticed that sub- Rule (4) of Rule 7 of the Rules of 1961, clearly provides for the entitlement of a widowed daughter, circumstanced as the petitioner. Therefore, even if there be some possible debate about the extent of application of the Rules of 1961 to a deceased pensioner’s widowed daughter, and, a fortiori her entitlement to receive family pension under sub-Rule (4) of Rule 7 of the Rules of 1961, Regulation 7-A, which has been left untouched by the Amendment of 1988, clinches the matter in the petitioner’s favour. 29. In the circumstances, we are of opinion that the petitioner is entitled to receive family pension on account of her father’s service after her mother’s demise under Rule 7(4) of the Rules of 1961, which apply to her case. The questions relating to vires need not be gone into, in view of our conclusions regarding the petitioner’s claim under the existing state of Rules. 30. In the result, this writ petition succeeds and is allowed . A mandamus is issued to the Director, Local Body, U.P., Lucknow, the Nagar Ayukt of the Nigam and the Mukhya Nagar Lekha Parikshak in the office of the Nagar Ayukt of the Nigam, to ensure amongst themselves, within six weeks of receipt of a copy of this judgment, sanction and disbursement of family pension to the petitioner together with arrears and interest @ 6% per annum simple; and, further ensure regular payment of family pension to the petitioner in accordance with her entitlement under the Rules. 31. There shall be no order as to costs. 32. Let this judgment be communicated to the Director, Local Body, U.P., Lucknow, the Nagar Ayukt of the Nigam and the Mukhya Nagar Lekha Parikshak in the office of the Nagar Ayukt of the Nigam by the Registrar (Compliance).