# Akhtari Khatoon v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 408
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-02
- **Case number:** Writ A No. 13833 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhtari-khatoon-v-state-of-u-p-ors-51819
- **Pages:** 12

## Headnote

Civil Law - Uttar Pradesh State Electricity
Board Recruitment of Dependants of
Board's Servants Dying in Harness Rules,
1975 - Rule 2(c)(3) - Uttar Pradesh
Recruitment
of
Dependants
of
Government Servants Dying in Harness
Rules,
1974
-
Rule
2(c)(iii)
-
Compassionate
Appointment
-
Family
Pension - Married Daughter - Dependency
- Succession Certificate
The petitioner, Akhtari Khatoon, a divorced
daughter of the deceased employee Nasir
Ahmad, sought compassionate appointment and
family pension, claiming dependency on her
father after her alleged divorce in 2008,
supported by a Talaqnama. She also obtained a
succession certificate for her father's retiral
dues, which were paid, but her pension was
stopped. The respondents argued that the
petitioner, as a married daughter, was not
eligible under Rule 2(c)(3) of the Rules of 1975,
and her divorce was not substantiated by a
court decree.
Held: (1) The petition was dismissed. (2) The
petitioner was not entitled to compassionate
appointment, as Rule 2(c)(3) of the Rules of
1975, applicable to the respondents, excludes
married daughters, and its vires were not
challenged, distinguishing Smt. Vimla Srivastava
Vs St. of U.P. (3) The petitioner failed to prove
dependency on her deceased father or provide
details of other dependents, such as her father's
widow or minor children, to justify her claim. (4)
The Talaqnama lacked authenticity, and no
court decree verified the divorce, undermining
her claim of dependency. (5) At 50 years of age,
the petitioner was presumed to have settled and
was ineligible for appointment due to age limits.
(6) The claim for family pension was untenable,
as no specific rule or statutory provision was
cited to establish eligibility. (7) The Executive
Engineer's failure to comply with the court's
prior order dated 21.10.2019 to pass a reasoned
order was admonished, with directions to
convey this to the Chairman, U.P. Power
Corporation.

List of Cases cited:

1.Smt. Vimla Srivastava Vs St. of U.P. & anr.,
2016 (1) ADJ 21 (DB);

## Text

_Characters 0–39,990 of 40,628. This is a partial read: ask again with offset=39990 for what follows._

408 INDIAN LAW REPORTS ALLAHABAD SERIES
stigmatic or not is, if the temporary
government servant had a right to the post
or rank, and, secondly, if he has been
visited with 'evil consequences', in the
words of their Lordships. It has been held
that if either of the two conditions exists,
the order of termination relating to a
temporary government servant must be
held penal in nature. It has also been
clarified that termination of services of a
temporary
government
servant
in
accordance with the terms and conditions
of service do not entail evil consequences,
as held by the Constitution Bench in case
of Parshotam Lal Dhingra v. Union of
India, AIR 1958 SC 36.

15. In this case, the petitioner, as
already remarked, is not remotely a
temporary employee. He is an employee,
whose services are entirely contractual.
Once that is the case, even if he has been
selected through some kind of a mechanism
to select under a Government Order and
appointed on contract, he has no right to the
post. There is no lien. In fact, that is
precisely the petitioner's case that the Rules
of 1956 and the Act would not apply to him
because he is not an employee of the Nagar
Palika, governed by those statutes or
statutory rules. His terms of service are
governed by the contract alone.

16. If then that is the case, the
petitioner's rights are governed exclusively
by a contract that does not have any
statutory flavour. It is a purely contractual
appointment accepted by the petitioner
dehors the rules and without a lien on any
post. The issue whether the termination is
in accordance with the contract or contrary
to it in the absence of violation of any
statute or statutory rules, or at least a
statutory contract, is not fit to be
determined by this Court in the exercise of
our writ jurisdiction under Article 226 of
the Constitution.

17. The dispute between the petitioner
and the Nagar Palika arises out of a
contract of service simpliciter, which
cannot be determined in the present
proceedings. The determination of the
petitioner's employment in terms of the
contract of service or in violation thereof,
given the terms of the contract and its
nature, does not involve any arbitrariness,
as may make it fall foul of the petitioner's
right under Article 14 or 16 of the
Constitution.

18. If the petitioner thinks that his
services have been determined in violation
of the contract between him and the Nagar
Palika, or otherwise the Nagar Palika have
indulged in any unfair labour practice in
dispensing with the petitioner's services, it
would be open to the petitioner to raise an
industrial dispute under the Uttar Pradesh
Industrial Disputes Act, 1947. No relief,
however, can be afforded to the petitioner
in the present writ petition.

19. Subject to the above liberty, this
petition fails and is dismissed.

20. There shall be no order as to costs.
----------
(2024) 4 ILRA 408
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.04.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 13833 of 2023

Akhtari Khatoon ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
4 All. Akhtari Khatoon Vs. State of U.P. & Ors.
409
Counsel for the Petitioner:
Sri Balendra Deo Misra, Sri Ram Ji Singh

Counsel for the Respondents:
C.S.C., Sri Shrawan Kumar Tripathi

Civil Law - Uttar Pradesh State Electricity
Board Recruitment of Dependants of
Board's Servants Dying in Harness Rules,
1975 - Rule 2(c)(3) - Uttar Pradesh
Recruitment
of
Dependants
of
Government Servants Dying in Harness
Rules,
1974
-
Rule
2(c)(iii)
-
Compassionate
Appointment
-
Family
Pension - Married Daughter - Dependency
- Succession Certificate
The petitioner, Akhtari Khatoon, a divorced
daughter of the deceased employee Nasir
Ahmad, sought compassionate appointment and
family pension, claiming dependency on her
father after her alleged divorce in 2008,
supported by a Talaqnama. She also obtained a
succession certificate for her father's retiral
dues, which were paid, but her pension was
stopped. The respondents argued that the
petitioner, as a married daughter, was not
eligible under Rule 2(c)(3) of the Rules of 1975,
and her divorce was not substantiated by a
court decree.
Held: (1) The petition was dismissed. (2) The
petitioner was not entitled to compassionate
appointment, as Rule 2(c)(3) of the Rules of
1975, applicable to the respondents, excludes
married daughters, and its vires were not
challenged, distinguishing Smt. Vimla Srivastava
Vs St. of U.P. (3) The petitioner failed to prove
dependency on her deceased father or provide
details of other dependents, such as her father's
widow or minor children, to justify her claim. (4)
The Talaqnama lacked authenticity, and no
court decree verified the divorce, undermining
her claim of dependency. (5) At 50 years of age,
the petitioner was presumed to have settled and
was ineligible for appointment due to age limits.
(6) The claim for family pension was untenable,
as no specific rule or statutory provision was
cited to establish eligibility. (7) The Executive
Engineer's failure to comply with the court's
prior order dated 21.10.2019 to pass a reasoned
order was admonished, with directions to
convey this to the Chairman, U.P. Power
Corporation.

List of Cases cited:

1.Smt. Vimla Srivastava Vs St. of U.P. & anr.,
2016 (1) ADJ 21 (DB);

2. St. of U.P. & anr. Vs Madhavi Mishra & ors.,
2021 (9) ADJ 529 (DB);

3. Director of Treasuries in Karnataka & anr. Vs
VS Somyashree, (2021) 12 SCC 20;

4. Sunithakumari Vs K.S.E.B. & ors., 1992 SCC
OnLine Ker 145;

5. U.O.I. & ors. Vs Manjurani Routray & ors.,
(2023) 9 SCC 144;

6. Kanhai Ram & ors. Vs St. of U.P. & ors.,

(Delivered by Hon'ble J.J. Munir, J.)

1. The petitioner's father, the late
Nasir Ahmad, was a Centrifugal Mechanic
in the employ of the Purvanchal Vidyut
Vitran
Nigam
Limited
(short,
'the
Corporation'), and last posted in the
establishment of the Executive Engineer,
Electricity Distribution Phase-III, Malviya
Road, Basti. The petitioner was married to
one Nisar Ahmad, who is said to have
divorced her through a Talaqnama dated
01.01.2008, pronouncing a Talaq upon his
wife, in accordance with the Shariat Law,
applicable
to
parties.
The
divorce,
according
to
the
Talaqnama
was
pronounced in the presence of two
competent witnesses. After the petitioner's
divorce, it is her case that she came back to
her father's house at Village Tilauli, Post
Sohnaag, District Deoria and is living there
since January, 2008. A copy of the
certificate of residence dated 12.04.2010
issued by the Deputy Collector on behalf of
the Collector is on record.

2. The petitioner says that she is the
only legal heir of the late Nasir Ahmad and
410 INDIAN LAW REPORTS ALLAHABAD SERIES
for the said reason, has staked claim to a
compassionate appointment. It is also said
that for the same reason, she has applied for
the payment of her father's retiral dues vide
a representation dated 21.09.2010. The
respondents directed the petitioner to
produce a succession certificate issued by a
Court of competent jurisdiction, entitling
her to the dues. Accordingly, the petitioner
moved the District Judge, Deoria for the
grant of a succession certificate under the
Indian
Succession
Act,
1925.
The
petitioner's petition for succession was
registered as Succession Case No.597 of
2010 and assigned to the Additional
District Judge, Court No.5, Deoria. The
learned Additional District Judge granted a
succession certificate in the petitioner's
favour, holding her entitled to receive from
the
Executive
Engineer,
Electricity
Distribution Division-I, Basti, gratuity in
the sum of Rs.4,02,501/-, leave encashment
in the sum of Rs.84,159/-, an ex gratia sum
of Rs.30,000/-, besides dues
on account of GPF in the sum of
Rs.1,73,559/-,
totalling
a
figure
of
Rs.6,90,219/-.

3. The petitioner points out that the
Executive
Engineer,
Electricity
Distribution Division Phase-I, District
Basti, sought legal opinion in the matter
and the Corporation's Counsel at Basti vide
his opinion dated 31.12.2014, opined that
all the documents produced by the
petitioner have been verified from the Civil
Court at Deoria as well as the Collectorate,
which are genuine. It was further opined
that the petitioner is entitled to all dues on
account
of
the
deceased
employee's
services, which she claims.

4. It is the petitioner's case that in
order to delay processing of her claim for
compassionate appointment, the Executive
Engineer
last
mentioned
sought
information once again vide letter dated
21.03.2018, addressed to the petitioner, to
the effect if the petitioner made her claim
for compassionate appointment within five
years of death of the employee, and,
secondly, if the Talaqnama produced has
been authenticated or verified by an
institution, recognized by the Government
of India or the State Government, or
established by the said Governments. The
petitioner says that she has the liability of
three unemployed sons on her shoulders
and there is no other source of income for
the family to survive. This Court must
remark that it has not been clarified in
paragraph No.14 of the writ petition if the
responsibility of 'unemployed sons' spoken
of, refers to the petitioner's sons or those of
her deceased father's sons, to wit, her
brothers.

5. The petitioner says that for one she
is entitled to receive post retiral dues on
account of her father's services, a fact
authenticated by orders made by the
Additional
District
Judge
granting
a
succession certificate in her favour. She
further says that she is entitled to a
compassionate appointment, inasmuch as
by virtue of the law now declared, 'married
daughters'
are
also
entitled
to
compassionate appointment under Rule
2(c)(iii) of the Uttar Pradesh Recruitment
of Dependants of Government Servants
Dying in Harness Rules, 1974 (for short,
'the Rules of 1974'). The petitioner further
avers in paragraph No.17 that though she
has been paid her father's retiral dues and
also her pension in the year 2019-20 for
some period of time, it has been stopped
without any rhyme or reason.

6. Accordingly, the petitioner has
moved this Court, seeking family pension
4 All. Akhtari Khatoon Vs. State of U.P. & Ors.
411
for herself on account of her deceased
father's services and also a direction to the
respondents to offer her a compassionate
appointment.

7. A counter affidavit has been filed
on behalf of respondents Nos.2 and 3
jointly, to which the petitioner has filed a
rejoinder.

8. This petition was admitted to
hearing on 04.10.2023, which proceeded
forthwith. Judgment was reserved.

9. Heard Mr. Balendra Deo Misra,
learned Counsel for the petitioner, Mr.
Shrawan Kumar Tripathi, learned Counsel
appearing on behalf of respondent Nos. 2
and 3, and Ms. Monika Arya, learned
Additional
Chief
Standing
Counsel
appearing
on
behalf
of
the
State,
respondent No.1.

10. This Court must remark at the
outset that the petitioner had earlier
approached this Court by means of Writ-A
No.16500 of 2019, which was disposed of
by an order dated 21.10.2019, ordering the
respondents in the following terms:

"As the claim of the petitioner
has yet not been considered by the
competent authority, without expressing
any opinion as to the merits of claim of the
petitioner, the present writ petition is being
disposed of with the direction to the
respondent no. 2 namely the Excutive
Engineer,
Purvanchal
Vidyut
Vitaran
Nigam Ltd., Electricity Distribution PhaseIII, District Basti to decide the claim of the
petitioner both for grant of family pension
and
other
retiral
dues
and
for
compassionate
ground
being divorced
daughter of the deceased employee, by
passing a reasoned and speaking order, in
accordance with law, preferably, within a
period of two months from the date of
submission of certified copy of this order,
after completion of necessary formalities."

11. It appears that out of the claims
directed to be decided by this Court vide
order dated 21.10.2019, the respondents
have paid post retiral dues on account of
the petitioner's father's services, authorized
by
the
succession
certificate
dated
27.07.2014, issued by the Additional
District Judges, Deoria. The directions
carried
in
this
Court's
order
dated
21.10.2019 about consideration of the
petitioner's
claim
for
compassionate
appointment and her entitlement to receive
family
pension,
has
decidedly
been
observed in breach in the sense that the
Executive
Engineer,
Electricity
Distribution Phase-III, Basti has not passed
any reasoned and speaking orders, deciding
the petitioner's claim for the grant of family
pension or compassionate appointment, as
ordered by this Court. There is an averment
in paragraph No.1 of the writ petition,
specifically to the effect that the orders of
this Court dated 21.10.2019, passed in
Writ-A No. 16500 of 2019, directing the
Executive Engineer aforesaid to pass orders
on the petitioner's claim for the grant of
family pension as well as compassionate
appointment, has been knowingly flouted.
In the counter affidavit filed on behalf of
respondent Nos.2 and 3, which is an
affidavit
by
Kedarnath
Mishra,
the
incumbent Executive Engineer, Electricity
Distribution Phase-III, Basti, it is averred in
paragraph No.4, in answer to paragraph
No.1 of the writ petition:

"4. That the contents of paragraph
No.1 of the writ petition being matter of
record which can verify there from, in reply
there to it is respectfully submitted that
412 INDIAN LAW REPORTS ALLAHABAD SERIES
allegation made in paragraph is wrong
hence denied, retire benefits has been paid
to the petitioner, for other benefit petitioner
is not entitle, petitioner has not given
necessary documents, which is require
under the law therefore representation of
the petitioner has not been decided."

12. It is one thing to say that the
petitioner is not entitled to the family
pension, she claims, or the compassionate
appointment, and quite another, not to
pass orders in regard to these claims,
despite a mandamus by this Court to
decide those claims by reasoned and
speaking orders. Ex facie, the Executive
Engineer has acted in disobedience of this
Court's orders dated 21.10.2019 passed in
Writ-A No. 16500 of 2019, by failing to
pass a speaking order, deciding the
petitioner's claim in regard to family
pension and compassionate appointment.

13. This Court is of opinion that by
the aforesaid act of disobedience, apart
from the question of contempt, with
which we are not concerned in this
petition,
the
Executive
Engineer,
respondent No.2, has forced the writ
petitioner to move this Court again for a
writ of mandamus to consider those very
claims, regarding which he is under a
command to decide. This is an act of
causing unnecessary litigation to be
generated, taxing both the petitioner and
the public exchequer. For the said reason,
we are of opinion that irrespective of the
event in this case, which we propose to
decide finally on merits, the Executive
Engineer, Electricity Distribution Phase-III,
Basti ought to be admonished for his action
in disobeying the earlier orders of this
Court. The admonition will be conveyed to
the concerned incumbents in the office of
the
Executive
Engineer,
through
the
Chairman,
U.P.
Power
Corporation,
Lucknow.

14. The respondents have resisted the
petitioner's claim to receive both the family
pension on account of her father's services
as well as the compassionate appointment
due to his demise in harness. We could
have sent back the matter to the third
respondent, compelling him to comply with
the earlier directions and decide those
claims, but in view of the stand taken in the
counter affidavit, we think that it would be
a wasteful expenditure of the parties'
resources as well as those of the Court. The
matter, therefore, ought to be determined
finally now, which we proceed to do
hereby.

15. It is not in dispute that the
petitioner is a married daughter of the
deceased employee, Nasir Ahmad. She
claims a divorce sometime in the year
before her father's death. The deceased
employee's widow is not alive and no other
family members of the deceased has
applied. The petitioner says that she is
entitled to a consideration of her claim,
because this Court in the case of Smt.
Vimla Srivastava v. State of U.P. and
another, 2016 (1) ADJ 21 (DB) has struck
down Rule 2(c)(iii) of the Rules of 1974 to
the extent that it has excluded married
daughters from the definition of the family
as violative of Articles 14 and 15 of the
Constitution. It is pointed out that it has
been done by striking down the word
'unmarried' in Rule 2(c)(iii) of the Rules of
1974, so that the expression that survives in
Rule 2(c)(iii) is 'daughter' without any
qualification as to marital status.

16. The learned Counsel for the
petitioner submits that once the word
'unmarried' has been struck down in Rule
4 All. Akhtari Khatoon Vs. State of U.P. & Ors.
413
2(c)(iii) of the Rules of 1974, the stand of
the respondents taken in the counter
affidavit that the petitioner is not entitled,
cannot be countenanced. On the other hand,
the learned Counsel for the respondents
submits that the Rules of 1974 are not
applicable to the Corporation and they are
governed
by
their
own
rules
and
regulations framed by the Board of
Directors. The attention of this Court in this
regard has been invited to the amended
provisions of Rule 2 of the Uttar Pradesh
State Electricity Board Recruitment of
Dependants of Board's Servants Dying in
Harness Rules, 1975 (for short, 'the Rules
of 1975'), amended on 5th July, 2012. The
said amendment has been carried out in
keeping with the amendment to the Rules
of 1974, then made by the 9th Amendment
in the year 2011. Amended Rule 2 as well
as the pre-amended provisions of the said
Rule would indicate, according to the
learned Counsel for the respondents, that it
is the unmarried daughters, including
unmarried adopted daughters, widowed
daughters and widowed daughters-in-law,
who qualify as members of the family
under Rule 2(c) of the Rules of 1975 (as
amended in the year 2012).

17. It is also submitted by the learned
Counsel for the respondents that the
various circumstances pointed out in the
counter affidavit indicate that the petitioner
was not at all a dependent of her father at
the time of his demise. It is urged that the
factum of her divorce is not established
because she has not produced any decree of
divorce from a Court of competent
jurisdiction. It is also said that the
petitioner was aged 34 years in the year
2010 and would now be 47 years of age.
Now, the presumption is that she is capable
of earning for herself and not entitled for
the said reason to family pension.

18. The learned Counsel for the
respondents, Mr. Shrawan Tripathi and Ms.
Monika Arya, learned Additional Chief
Standing Counsel have placed reliance in
support of their case upon a Bench
Decision of this Court in State of U.P. and
another v. Madhavi Mishra and others,
2021(9) ADJ 529 (DB), where following
the
Supreme
Court
in
Director
of
Treasuries in Karnataka and another v.
V. Somyashree, (2021) 12 SCC 20 and
the
Kerala
High
Court
in
V.
Sunithakumari v. K.S.E.B. and others,
1992 SCC OnLine Ker 145, it has been
held that a married daughter is not included
in the definition of 'family' under the Rules
of 1975. It is also submitted by the learned
Counsel appearing for the respondents that
the petitioner is not entitled to claim
compassionate appointment as a matter of
right, specially when she has deliberately
omitted to mention her mother's eligibility
to receive family pension.

19. We have carefully considered the
submissions advanced on behalf of learned
Counsel appearing for the parties and
perused the record.

20. It is no doubt true that in Rule 2(c)
(iii) of the Rules of 1974, the word
'unmarried' qualifying the word 'daughter'
has been struck down as unconstitutional
by the Court in Smt. Vimla Srivastava
(supra). But, that by itself would not entitle
the petitioner to a striking down of Rule
2(c) (3) of the Rules of 1975, which apply
to the respondents' establishment. The
respondents are not governed by the Rules
of 1974, but their own rules, to wit, the
Rules of 1975, as amended. The petitioner
has not challenged the vires of Rule 2(c)
(3) of the Rules of 1975, where the Court
could have gone into the issue if the said
Rule was ultra vires Articles 14 and 15 of
414 INDIAN LAW REPORTS ALLAHABAD SERIES
the Constitution. Howsoever extendable in
its logic, the principle laid down in Smt.
Vimla Srivastava, cannot of itself result in
the striking down of another rule without
its vires being properly challenged. In Smt.
Vimla Srivastava the vires of Rule 2(c)
(iii) of the Rules of 1974 was under
challenge, which is not the case here. The
Rules of 1975 have been amended on 5th
of July, 2012 by a memo of the said date
issued by the Director of the Corporation
acting under an order of the Corporation's
Board. The amended and the pre-amended
Rule 2 of the Rules of 1975, which no
doubt has followed the amendment then
made to Rule 2 of the Rules of 1974, is
being quoted in extenso:

"सिंख्या-2018-औस/ 2012-27-एफ0 /80

सदनािंक 5 जुलाई, 2012
कार्ाालर् ज्ञाप

उत्तर प्रदेश सरकार का असिसूचना
सिंख्या-6/12/73/कासमथक-2/ 2011-टी0सी0-IV,
सदनािंक 22.12.2011 द्वारा उत्तर प्रदेश सेवाकाल
में मृत सरकारी सेवकोिं के आसश्रतोिं की भती
(नवााँ सिंशोिन) सनयमावली 2011 के सनयम-2 में
सकये गये सिंशोिन को अिंगीकार सकये जाने का
पावर कारपोरेशन ने सनणथय सलया है।

उपरोक्त असिसूचना अिंगीकृत सकये
जाने के फलस्वरूप एतद्द्वारा उ0प्र0 राज्य
सवद्युत पररर्द सेवाकाल में मृत सेवकोिं के
आसश्रतोिं की भती सनयमावली 1975 (यर्ा
सिंशोसित) के सनयम- 2 में नीचे स्तम्भ-1 में सदये
गये वतथमान खण्ड (ग) के स्र्ान पर स्तम्भ-2 में
सदया गया खण्ड प्रसतस्र्ासपत सकया जाता है:-

स्तमभ-1
विद्यमान खण्ड
(ग) कुर्ुमब के अन्तगजत मृत
सरकारी
सेिक
के
धनमनधिम्खत
समबन्िी
िोगें:-
स्तमभ - 2
एतद्द्द्वारा प्रधतस्र्थावपत खण्ड
(ग) कुर्ुमब के अन्तगजत मृत
सरकारी
सेिक
के
धनमनधिम्खत
समबन्िी
िोगें:-
1. पत्नी या पधत,
2. पुर्त्र
3. अवििाहित पुवर्त्रयां तर्था
विििा पुवर्त्रयां,
4. मृत सरकारी सेिक पर
आधश्रत
अवििाहित
भाई,
अवििाहित बिन और विििां
माता यहद मृत सरकारी
सेिक अवििाहित र्था।
परन्तु यहद मृत सरकारी
सेिक के उपररउम्लिम्खत
समबम्न्ियों में से हकसी से
समबम्न्ित
कोई
व्यवि
उपिब्ि निीं िै या िि
िारीररक और मानधसक रूप
से अनुपयुि पाया जाय और
इस प्रकार सरकारी सेिा में
धनयोजन के धिये अपार्त्र िो
तो केिि ऐसी म्स्र्थधत में
िब्द "कुर्ुमब" के अन्तगजत
मृत
सरकारी
सेिक
पर
आधश्रत पौर्त्र और अवििाहित
पौवर्त्रयााँ भी सम्ममधित िोगीं।

1. पत्नी या पधत
2. पुर्त्र / दत्तक पुर्त्र
3.
अवििाहित
पुवर्त्रयां
अवििाहित दत्तक पुवर्त्रयां,
विििा पुवर्त्रयां और विििा
पुर्त्र ििुएाँ,
4. मृत सरकारी सेिक पर
आधश्रत
अवििाहित
भाई.
अवििाहित बिन और विििा
माता यहद मृत सरकारी
सेिक अवििाहित र्था।
5. ऐसे िापता सरकारी
सेिक,
म्जसे
सक्षम
न्यायािय द्वारा 'मृत' के रूप
में घोवषत हकया गया िै, के
उपररउम्लिम्खत समबन्िी,
परन्तु यहद मृत सरकारी
सेिक के उपररउम्लिम्खत
समबम्न्ियों में से हकसी से
समबम्न्ित
कोई
व्यवि
उपिब्ि निीं िै या िि
िारीररक और मानधसक रूप
से अनुपयुि पाया जाय और
इस प्रकार सरकारी सेिा में
धनयोजन के धिए अपार्त्र िो
तो केिि ऐसी म्स्र्थधत में
िब्द "कुर्ुमब" के अन्तगजत
मृत
सरकारी
सेिक
पर
आधश्रत पौर्त्र और अवििाहित
पौवर्त्रयााँ भी सम्ममधित िोंगी।

सनयमावली के अन्य प्रासविान यर्ावत्
रहेगें।
सनदेशक मण्डल की आज्ञा से,
सनदेशक (का0प्रब0 एविं प्रशा0)

सिंख्या: 2018- (1) औस/2012 -
तदसदनािंक

प्रसतसलसप सूचनार्थ एविं आवश्यक
कायथवाही हेतु सनम्नसलखखत को प्रेसर्त :-

1- प्रबन्ध सनदेशक, पूवाथन्चल /
पसश्चमािंचल / मध्यािंचल / दसक्षणािंचल सवद्युत
4 All. Akhtari Khatoon Vs. State of U.P. & Ors.
415
सवतरण सनगम सलसमटेड, वाराणसी / मेरठ /
लखनऊ / आगरा एविं केस्को, कानपुर।

2- सनदेशक (आपरेशन), उ0प्र0
पावर टरािंसमीशन कारपोरेशन सलसमटेड़ शखक्त
भवन सवस्तार, लखनऊ।

3- मुख्य असभयन्ता (जल-सवद्युत)/
अध्यक्ष, सवद्युत सेवा आयोग/ ज च ससमसत,
उ0प्र0 पावर कारपोरेशन सल0।

4- समस्त मुख्य असभयन्ता सवतरण
क्षेत्र एविं पारेर्ण क्षेत्र, उ0प्र0 पावर कारपोरेशन
सल0।

5- समस्त अिीक्षण असभयन्ता /
असिशासी असभयन्ता, उ0प्र0 पावर कारपोरेशन
सलसमटेड।

6- समस्त मुख्य महाप्रबन्धक (लेखा)
/ महाप्रबन्धक (लेखा) / उप महाप्रबन्धक
(लेखा) / उप मुख्य लेखासिकारी, उ0प्र0 पावर
कारपोरेशन सलसमटेड।

7- समस्त उप महाप्रबन्धक (औस)/
वररि कासमथक असिकारी/ कासमथक असिकारी,
उ0प्र0 पावर कारपोरेशन सल0।

8- उपससचव (सवसनयम), उ0प्र0
पावर कारपोरेशन सल0, शखक्त भवन, लखनऊ।

9- समस्त अनुभाग असिकारी / सनजी
ससचव, प्रशाससनक एविं लेखा स्कन्ध्र, उ0प्र0
पावर कारपोरेशन सल0।

10- असिशासी असभयन्ता (वेब), कक्ष
सिंख्या-407, शखक्त भवन को इस अनुरोि के
सार् प्रेसर्त सक वे वेबसाइट www.uppcl.org
पर लोड करने हेतु।

11- कम्पनी ससचव, उ0प्र0 पावर
कारपोरेशन सलसमटेड, शखक्त भवन, लखनऊ
को सनदेशक मण्डल की बैठक नब्बे( 28 ) / 12,
सदनािंक 15.06.2012

12- कट फाइल।
ह0 अपसठत
(कौशल चन्द्र सक्सेना)
उप महाप्रबन्धक (औस)"

21. It would be important to note that
neither under the pre-amended Rules nor
post amendment, married daughters have
been included in the definition of family
under Rule 2(c) (3) of the Rules of 1975.
The principle that unless the provisions of a
statute or statutory rule is challenged
through a duly framed writ petition, it
cannot be struck down by the Court, is well
settled in view of the law laid down in
Union of India and others v. Manjurani
Routray and others, (2023) 9 SCC 144.
In Manjurani Routray (supra), it was
observed:

"10. After hearing the learned
counsel for the parties and considering the
prayer made in the writ petition, it is
luculent that Respondent 1 did not set out
any grounds to declare Rule 4(b) of the
Rules as ultra vires. No such relief was
even prayed for in the writ petition.
Respondent 1 in the writ petition merely
sought a writ in the nature of certiorari to
set aside the order of CAT. Therefore in the
given facts, there was no occasion for the
High Court to declare Rule 4(b) as ultra
vires.

11. While hearing the learned
counsel appearing for the parties, we asked
Shri B.H. Marlapalle, learned Senior
Counsel along with Shri Shibashish Mishra
appearing on behalf of the respondents and
intervenors, as to how, in absence of any
pleading setting out grounds challenging
the vires of Rule 4(b) and in the absence of
seeking any relief to that effect, the High
Court
was
justified
in
exercising
jurisdiction to declare Rule 4(b) as ultra
vires? In response, the learned Senior
Counsel has fairly stated that it is a defect
in the pleadings as well as in the relief
sought before CAT and in the writ petition.
But still, they made an unsuccessful
attempt to satisfy this Court that the said
416 INDIAN LAW REPORTS ALLAHABAD SERIES
rule appears to be discriminatory and
therefore the High Court has rightly
exercised the jurisdiction while passing the
impugned order. It is a trite law that for
striking down the provisions of law or for
declaring any rules as ultra vires, specific
pleading to challenge the rules and asking
of such relief ought to be made, that is
conspicuously missing in the present case.
In the absence of such a pleading, the
Union of India did not have an opportunity
to rebut the same. The other side had no
opportunity to bring on record the object, if
any, behind the Rules that were brought
into force. We are also of the considered
view that, in the writ petition seeking a writ
of certiorari challenging the order of CAT,
the High Court ought not to have declared
Rule 4(b) as ultra vires in the above fact
situation. Therefore, the High Court was
not justified to declare Rule 4(b) as ultra
vires."

22. Now, the other question that
remains is if there is so striking a similarity
between the "unconstitutional" provisions
of Rule 2(c) (iii) of the Rules of 1974 and
those of Rule 2(c) (3) of the Rules of 1975,
should this Court not 'read down' the
provisions of Rule 2(c) (3) of the Rules of
1975, to save it from the peril of
unconstitutionality.

23. This Court in Kanhai Ram and
others v. State of U.P. and others,
Neutral Citation No. - 2024:AHC:52835
has referred a question, amongst others, for
consideration by a larger Bench, if the
Court, in the absence of a challenge to the
vires of a statute can 'read down' its
provisions, that appear to be ultra vires. We
would have made a reference of the
question in the present matter also or
awaited answer to the pending reference,
but we do not think that the question really
arises in this case. We have also taken note
of an opinion contrary to that in Smt.
Vimla Srivastava, expressed by another
Division Bench of this Court, later in point
of time, in Madhavi Mishra (supra),
which is expressed in the following words:

"15. It is settled principle of law
that the object of the scheme is not to
provide employment to the unemployed
among the dependent relatives of the
employee, who died in harness, but to
enable one of the dependents to get some
employment so as to eke out a livelihood
for the members of the family of the
deceased. The intention of the scheme can
only be to provide immediate relief to the
family of the deceased employee for their
sustenance. A married daughter is excluded
from that category and the exclusion is not
without reason that married daughter goes
out of the family and is dependent on her
husband of her necessities. The father could
render financial assistance to his married
daughter, if he is in position to give
assistance, but that is not reason to hold
that married daughter still continues to
dependent on her father specially when law
enjoins a duty on the husband to maintain
his wife and enables her to claim alimony
in case he refuses to pay. Therefore, the
dependency on the father ceases the
moment the daughter is given in carriage
and that is the justification for excluding
married daughter from the category of
dependents and to include only unmarried
daughters. This aspect has been considered
by the High Court of Kerala in minutest
details in case of V. Sunithakumari v.
K.S.E.B. and others, 1992 SCC OnLine
Ker 145.

16. Thus, in the light of the law
laid down by Hon'ble Supreme Court in
case of Director of Treasuries in Karnataka
and another (supra) and Kerala High Court
4 All. Akhtari Khatoon Vs. State of U.P. & Ors.
417
in case of V. Sunithakumari (supra), we are
of the opinion that petitioner is not entitled
to compassionate appointment firstly on the
ground that a married daughter is not
included in the definition of a family under
the Regulations of 1995 and secondly
petitioner cannot claim compassionate
appointment as a matter of right specially
when she has deliberately omitted to
mention eligibility of her mother to get
family pension, thus not leaving her in
penury and also not making her dependent
on the present applicant and thirdly because
both as per the law and the tradition, a
married daughter is dependent on her
husband and not on her father."

24. The impact of the decisions of the
Supreme Court would also have to be
considered, as referred to by the Division
Bench in Madhavi Mishra as also certain
other decisions, on which learned Counsel
for the respondents have placed reliance.
This, however, would be necessary if for
the decision of the case, it was imperative
to go into the question about the validity of
Rule 2(c) (3) of the Rules of 1975. That is
neither under challenge nor do we think
that in the facts of the present case, the
question of the rule being suitably 'read
down', necessarily arises in order to decide
the cause. The reason why it is not
necessary to go into the question of vires of
Rule 2(c) (3) of the Rules of 1975, or
exploring the possibility of a 'reading
down' thereof, is that assuming that the
petitioner is entitled to stake her claim for
compassionate appointment, the facts here
do not entitle her to it on reputed criteria to
judge such claims.

25. The petitioner has not shown with
full particulars, how she was dependent
upon her father at the time of his demise.
This case is not about a discrimination on
the ground of sex alone, but something
very different. If in the petitioner's stead, a
son of the deceased, placed in the
circumstances that she is, had applied, his
claim too would not have been accepted. It
is a dependent son, who can claim for
himself and for the benefit of supporting
the deceased's widow and minor children, a
consideration
for
compassionate
appointment. Likewise, if on the date of
demise of the employee in harness, it can
be shown that a married daughter is
dependent upon him, or his widow and
minor family members could be taken care
of by the married daughter, if granted
compassionate appointment, it may be a
case for considering the claim and judging
the validity of the prohibitive rule.

26. Here, the petitioner has not
pleaded material facts and particulars to
show how she was herself dependent on her
deceased father at the time of his demise.
There is a vague allegation that in the year
2008, her husband, Nisar Ahmad has
divorced the petitioner. The evidence
produced in this regard is a Talaqnama,
written in Urdu on a plain paper and dated
1st January, 2008. It purports to have
effected a divorce between the petitioner
and her husband. Another document is a
Hindi transliteration of the Talaqnama,
written on a general stamp worth Rs.10/-.
The Hindi transliteration shows that her
husband has divorced the petitioner by
pronouncing a triple Talaq in accordance
with Shariat Law applicable to parties in
the presence of two competent witnesses.
The document to its face is a surreptitious
one, which does not inspire confidence
with this Court. The document has no
authenticity about its record, even so much
as a postal dispatch to the petitioner or its
service being effected upon her through
some dependable and ascertainable mode.
418 INDIAN LAW REPORTS ALLAHABAD SERIES
It is also not pleaded by the petitioner or
established by the so-called Talaqnama for
how long the petitioner was married, and if
she had children of her own. There is one
telltale circumstance about the deceased's
marital status, which cannot be ignored. In
her affidavit filed in support of the writ
petition she has chosen to describe herself
as wife of Nisar Ahmad, instead of saying
daughter of the late Nasir Ahmad, as said
elsewhere, such as the cause title and her
applications made to the respondents. The
contents of an affidavit signed and sworn
by the petitioner cannot be lightly brushed
aside.

27. This Court is of opinion that in the
circumstances,
the
respondents
were
perfectly justified in asking the petitioner to
produce evidence of her claimed divorce by
a decree of a Court of competent
jurisdiction, or some dependable evidence
about it. If the factum of divorce is not
believable,
the
petitioner
cannot
be
regarded a dependent of the deceased at all.
Still, taking the principle that she is eligible
on assumption, if it was the petitioner's
case fully pleaded and established that the
deceased left behind him his widow and
minor children, whom the petitioner was
willing to support, there might have been a
case worth consideration, of course, subject
to be relevant rule being struck down or
read down in accordance with law. But,
that is not the case here, because the
petitioner
has
not
pleaded
the
full
particulars of the deceased's dependents,
except saying in paragraph No.14 that she
bears the liability of three unemployed sons
on her shoulders. It is not said by even as
much as a hint as to who are the sons
referred to in paragraph No.14. Whether
they are sons of the deceased or the
petitioner's sons, is not at all clear. If they
are the deceased's sons, their ages and
competence to apply for themselves ought
to have been disclosed in order to ascertain
whether it was necessary for the petitioner
to be offered a compassionate appointment
in order to support the deceased's sons, who
would qualify as his dependents. If the
reference is to the petitioner's sons, they are
certainly not the deceased's dependents and
to support them, the petitioner cannot stake
her claim to compassionate appointment on
account of her father's demise in harness.

28. Besides the above facts, the
affidavit filed by the petitioner in support
of this petition shows that she is now 50
years of age. At this age, if she can be
granted
an
appointment
at
all,
compassionate
or
otherwise,
by
the
respondents, has to be answered against
her. The reason is for one that she would no
longer be eligible for appointment in terms
of the maximum age of prescribed. The
other is that by this time, it would be
assumed that she has managed to find her
way in life and settled down, where the
deceased's demise in harness has not
destituted her.

29. So far as the other claim about the
family
pension
is
concerned,
the
respondents have denied it saying that the
petitioner is not eligible under the Rules to
receive family pension on account of
services rendered by the deceased. It is for
the petitioner to establish under what rule
about pension and family pension, she is
eligible. Not a word has been said in the
writ petition or the rejoinder affidavit,
except that it was paid for some time and
then stopped. The right to receive both
pension and family pension has to flow
from some statute, statutory instrument or
rules. Nothing of that kind has been pointed
out by the petitioner in order to entitle her
to receive family pension for her father's
4 All. Shri Pal Vs. State of U.P. & Ors.
419
service. This part of the petitioner's claim
is, therefore, also untenable.

30. In the circumstances, this Court is
of the opinion that no mandamus can be
issued to the respondents either to consider
the petitioner's claim for compassionate
appointment or for the grant of family
pension on account of her deceased father's
services

31. In the result, this writ petition fails
and is dismissed.

32. There shall be no order as to costs.

33. Let this order be communicated to
the Chairman, U.P. Power Corporation
Limited, Lucknow by the the Registrar
(Compliance) with the remark that he will
carry out the direction in paragraph No.13
of this judgment.
----------
(2024) 4 ILRA 419
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.04.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 13858 of 2023

Shri Pal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Agnihotri Kumar Tripathi, Si Rajesh
Kumar Pandey

Counsel for the Respondents:
C.S.C., Sri Pankaj Srivastava

Civil Law - U.P. Municipalities Act, 1916 -
Annual Increment - Retirement - Notional
Increment - Article 14 - Pensionary
Benefits
The petitioner, Shri Pal, a retired Clerk from
Nagar Nigam, Meerut, challenged the Nagar
Ayukt's order dated 28.12.2019, denying his
annual increment for the period 01.07.2018 to
30.06.2019, due on 01.07.2019, post-retirement
on 30.06.2019, citing no government order or
rule permitting post-retirement increments.
Held: (1) The petition was allowed with costs of
Rs. 10,000/-. (2) The impugned order was
quashed as contrary to Director (Admn. HR)
KPTCL Vs C.P. Mundinamani, which held that
denying an increment earned for a year's
satisfactory service due to retirement on 30.06
before the increment date (01.07) is arbitrary
and violates Article 14. (3) The petitioner,
having completed a full year of service, was
entitled to a notional increment for pensionary
benefits. (4) A mandamus was issued to grant
the increment notionally from 01.07.2019,
revise the pension, and pay arrears within eight
weeks with 6% interest for delays. (5) The
Nagar Ayukt's reliance on government orders
over judicial precedents was disapproved,
cautioning against pedantic adherence to rules
conflicting with court rulings. (6) The Nagar
Ayukt's failure to justify the order and improper
affidavit verification were criticized.