# Arun Malik v. State of U.P. & Ors

- **Citation:** (2026) 3 ILRA 287
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-03-11
- **Case number:** Writ A No. 10291 of 2025
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arun-malik-v-state-of-u-p-ors-54346
- **Pages:** 7

## Text

3 All. Arun Malik Vs. State of U.P. & Ors.
287
it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government
from time to time for repayment of long-term deposits, as that Government may by notification
specify. It further provides that no such interest shall be payable if the delay in payment is due to
the fault of the employee, and the employer has obtained permission in writing from the controlling
authority for the delayed payment on this ground. In the present case, there is no plea before us
that the appellants had sought any permission in writing from the controlling authority. As to the
delay on the part of the employee, it has come on the record that he made representations,
whereafter he filed a suit in respect of withheld amount of gratuity and pension. In Y.K. Singla v.
Punjab National Bank [Y.K. Singla v. Punjab National Bank, (2013) 3 SCC 472 : (2013) 1 SCC
(L&S) 640] , this Court, after discussing the issue relating to interest payable on the amount of
gratuity not paid within time, directed that interest @ 8% p.a. shall be paid on the amount of
gratuity."

18. The Coordinate Bench of this Court in the case of Mahendra Singh Chauhan vs. State of
U.P. and Others, 2025 (43) LCD 2453, in paragraph 10 has held as under:-

"10. In view of aforesaid discussion, it being evident that impugned order dated
22.06.2023 being unsustainable is hereby quashed by issuance of a writ in nature of Certiorari. A
further writ in nature of Mandamus is issued commanding the opposite parties to ensure payment
of gratuity and leave encashment to petitioner within a period of six weeks from the date a certified
copy of the order is served upon competent authority. Petitioner is also entitled for interest at the
rate of 6% per annum with effect from the date of superannuation till the date of actual payment."

19. Thus, in view of the aforesaid precedents of the Hon'ble Supreme Court as well as the
judgment of this Court, and considering the inordinate delay in making payment of post-retiral dues
such as leave encashment, gratuity and regular pension, it is directed that simple interest at the rate
of 7% per annum shall be paid to the petitioner from the date of superannuation till the date of
actual payment on the amounts of regular pension, leave encashment and gratuity, etc. within a
period of two months from the date of production of a certified copy of this order.
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(2026) 3 ILRA 287
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.03.2026

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ A No. 10291 of 2025

Arun Malik ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Issue(s) for consideration
288 INDIAN LAW REPORTS ALLAHABAD SERIES
 Whether petitioner would be entitled for inclusion under old pension scheme or in the new pension scheme
w.r.t. the date of death of his father and the date of application for compassionate appointment or as on the
date of appointment in July 2005?

Headnotes
A. Service Law - For purposes of appointment on compassionate ground, the policy prevalent at
the time of death of deceased employee only is required to be considered and not the
subsequent policy. Petitioner's father admittedly expired prior to the advent of New Pension Scheme with
application for compassionate appointment also being submitted prior to the cut-off date of 1st April 2005.
(Para 9, 13)

B. A rule of interpretation which produces different results, depending upon what the individuals
do or do not do, is inconceivable.

In case a benefit is required to be granted to an employee or the heir of deceased employee with
two dates being material, with one date being fixed and the other being variable depending
upon acts or omissions of the parties concerned, it is the fixed date which will have precedence
over the date which is variable. Therefore it is held that petitioner would be covered by the Old Pension
Scheme.

In case the service benefit such as compassionate appointment is required to be conferred upon the heir of
deceased employee, the conflict of opinion revolving around two dates namely (i) date of death of employee
and (ii) date of consideration of application of dependant, it has been held that it is the date of death alone
which is a fixed factor, that does not change and therefore consideration should not be as per date of
consideration of application since it is variable and is dependent on various factors. (Para 11, 15, 22)

C. Reasoning for rejection of petitioner's application (for inclusion under the Old Pension
Scheme) on the ground that no advertisement for the vacancy was issued prior to the cut-off
date of 1st April 2005 (as required under the GO), it is clearly unreasonable. The counter affidavit
does not advert to any aspect or rule and there is no such provision even in the Rules of 1974, whereunder
compassionate appointment is required to be made only after advertisement of the vacancy that has occurred
due to passing away of the substantively appointed employee. (Para 16, 17, 18)

D. Benefit can be granted to the opposite parties for their own delay. A perusal of the GO dated 28th
June 2024 particularly paragraph 4 thereof also is indicative of the fact that for inclusion under the Old
Pension Scheme, the post or vacancy on which appointment has been made should have been
advertised/notified prior to 28th March, 2005 with actual appointment and joining being made on or after Ist
April, 2005. (Para 19)

Admittedly vacancy has occurred on account of demise of father of petitioner prior to 1st April 2005 and since
admittedly there is no provision for compassionate appointment only after issuance of advertisement, the
relevant condition of vacancy having occurred prior to the cut-off date of 1st April 2005 stands satisfied. (Para
20)

Appointment of petitioner subsequent to the cutoff date of 1st April 2005 was a variable at the instance of
opposite parties who have not furnished any cogent explanation for not issuing appointment letter to the
petitioner prior to the cut-off date when the application for appointment was made admittedly prior to the
said cut-off date, no such benefit can be granted to the opposite parties for their own delay. (Para 14, 21)

Writ petition allowed. (E-4)

Case Law Cited
1. State of Madhya Pradesh and others Vs. Ashish Awasthi, (2022) 2 SCC 157 (Para 5)
3 All. Arun Malik Vs. State of U.P. & Ors.
289
2. Secretary to Government Department of Education (Primary) and others Vs. Bheemesh alias Bheemappa,
(2021) 20 SCC 707 (Para 5)
3. Indian Bank and others Vs. Promila and another, (2020) 2 SCC 729 (Para 5)

List of Acts
 UP Retirement Benefits Rules, 1961; General Provident Fund (Uttar Pradesh) Rules, 1985.

List of Keywords
 compassionate appointment, pension, salary, service, department, harness, death, employee, scheme,
benefit.

Appearances for Parties
For Petitioner(s): Arun Pratap Verma, Surya Mani Singh
For Respondent(s): C.S.C.

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Surya Mani Singh learned counsel for petitioner and learned state counsel for
opposite parties.

2. Petition has been filed challenging order dated 2nd June 2025 whereby his application for
being included in the old pension scheme has been rejected. Further prayer has also been made for
a direction to opposite parties to include petitioner under provisions of the UP Retirement Benefits
Rules, 1961 and the General Provident Fund (Uttar Pradesh) Rules, 1985 with a further prayer
being made for a direction to opposite parties to adjust the amount deducted from salary of
petitioner in the new pension scheme for adjustment in the old pension scheme.

3. Learned counsel for petitioner submits that petitioner's father late Ravi Pal Singh was a
substantive employee in the Department of Cane and Sugar, Government of UP and passed away in
harness on 5th March 2005 on the post of Cane Supervisor whereafter petitioner submitted an
application for compassionate appointment on 14th March 2005 which was processed with
appointment order being issued on 27th July 2005 whereafter he joined on 5th August 2005.

4. It is submitted that since death of petitioner's father took place prior to the advent of the new
pension scheme by means of government order dated 28th March 2005 and application for
compassionate appointment also being submitted prior to the cut-off date of 1st April 2005,
petitioner is entitled to be considered under the old pension scheme and the opposite parties can not
take benefit of their own wrong in issuing delayed appointment to petitioner after the cutoff date.

5. Learned counsel has placed reliance on judgments rendered by Supreme Court in the cases
of State of Madhya Pradesh and others versus Ashish Awasthi, (2022) 2 Supreme Court Cases 157,
Secretary to Government Department of Education (Primary) and others versus Bheemesh alias
Bheemappa, (2021) 20 Supreme Court Cases 707 and Indian Bank and others versus Promila and
another, (2020) 2 Supreme Court Cases 729 to submit that terms of service as applicable on the
date of death of petitioner's father would be applicable upon petitioner particularly since there is no
provision of issuance of any advertisement with regard to compassionate appointment.
290 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Learned state counsel has refuted submissions advanced by learned counsel for petitioner
and on the basis of counter-affidavit submits that petitioner's father passed away in harness on 5th
March 2005 whereafter application for compassionate appointment was filed on 14th March 2005
whereafter appointment letter was issued on 27th July 2005; after issuance of which petitioner took
charge on 5th August 2005. It is submitted that since petitioner was appointed as a dependant of
deceased employee, no advertisement/notification has been issued and therefore petitioner does not
fall within category for inclusion under the old pension scheme in the light of government order
dated 28th June 2024. It is further submitted that since the government order specifically provides
for appointment prior to 1st April 2005 for inclusion in the old pension scheme, the same not being
applicable upon petitioner, he cannot be included under the old pension scheme.

7. Upon consideration of submissions advanced by learned counsel for parties and perusal of
material on record, the facts as indicated herein above are admitted to the extent that the petitioner's
father was a substantive employee of the department and passed away in harness on 5th March
2005. Admittedly, petitioner submitted an application for compassionate appointment on 14th
March 2005 whereafter appointment order was issued only on 27th July 2005 which is after the
cutoff date of 1st April 2005 indicated in the government order for applicability and inclusion in
the new pension scheme.

8. In view of aforesaid submission, the question requiring adjudication is whether petitioner
would be entitled for inclusion under old pension scheme or in the new pension scheme with regard
to the date of death of his father and the date of application for compassionate appointment or as on
the date of appointment in July 2005?

9. With regard to aforesaid question, learned counsel for petitioner has placed reliance on
judgments rendered in the cases of Ashish Awasthi (supra), Bheemesh (supra), Promila and another
(supra) which pertain to the aspect that for purposes of appointment on compassionate ground, the
policy prevalent at the time of death of deceased employee only is required to be considered and
not the subsequent policy.

10. Although, the aforesaid judgments are on the proposition with regard to applicability of
scheme of compassionate appointment and not with regard to any other aspect pertaining to service
relating to the deceased employee but would require consideration in present scenario.

11. In the case of Bheemesh (supra), the ratio for such proposition has been indicated in
paragraph 20 to the effect that in case the service benefit such as compassionate appointment is
required to be conferred upon the heir of deceased employee, the conflict of opinion revolving
around two dates namely (i) date of death of employee and (ii) date of consideration of application
of dependant, it has been held that it is the date of death alone which is a fixed factor, that does not
change and therefore consideration should not be as per date of consideration of application since it
is variable and is dependent on various factors. It has also been held that a rule of interpretation
which produces different results, depending upon what the individuals do or do not do, is
inconceivable. The relevant paragraph of the judgment rendered in the case of Bheemesh (supra) is
as follows:-
3 All. Arun Malik Vs. State of U.P. & Ors.
291

"20. The important aspect about the conflict of opinion is that it revolves around two
dates, namely, (i) date of death of the employee; and (ii) date of consideration of the application of
the dependant. Out of these two dates, only one, namely, the date of death alone is a fixed factor
that does not change. The next date, namely, the date of consideration of the claim, is something
that depends upon many variables such as the date of filing of application, the date of attaining of
majority of the claimant and the date on which the file is put up to the competent authority. There is
no principle of statutory interpretation which permits a decision on the applicability of a rule, to be
based upon an indeterminate or variable factor. Let us take for instance a hypothetical case where
2 government servants die in harness on 1-1-2020. Let us assume that the dependants of these 2
deceased government servants make applications for appointment on 2 different dates say 29-52020 and 2-6-2020 and a modified Scheme comes into force on 1-6-2020. If the date of
consideration of the claim is taken to be the criteria for determining whether the modified Scheme
applies or not, it will lead to two different results, one in respect of the person who made the
application before 1-6-2020 and another in respect of the person who applied after 1-6-2020. In
other words, if two employees die on the same date and the dependants of those employees apply
on two different dates, one before the modified Scheme comes into force and another thereafter,
they will come in for differential treatment if the date of application and the date of consideration
of the same are taken to be the deciding factor. A rule of interpretation which produces different
results, depending upon what the individuals do or do not do, is inconceivable. This is why, the
managements of a few banks, in the cases tabulated above, have introduced a rule in the modified
scheme itself, which provides for all pending applications to be decided under the new/modified
scheme. Therefore, we are of the considered view that the interpretation as to the applicability of a
modified Scheme should depend only upon a determinate and fixed criteria such as the date of
death and not an indeterminate and variable factor."

12. The same reasoning has thereafter been held in the case of Promila and another (supra).
The relevant paragraph of the aforesaid judgment is as follows:-

"20. We have to keep in mind the basic principles applicable to the cases of
compassionate employment i.e. succour being provided at the stage of unfortunate demise, coupled
with compassionate employment not being an alternate method of public employment. If these
factors are kept in mind, it would be noticed that the respondents had the wherewithal at the
relevant stage of time, as per the norms, to deal with the unfortunate situation which they were
faced with. Thus, looked under any Schemes, the respondents cannot claim benefit, though, as
clarified aforesaid, it is only the relevant Scheme prevalent on the date of demise of the employee,
which could have been considered to be applicable, in view of the judgment of this Court in Canara
Bank [Canara Bank v. M. Mahesh Kumar, (2015) 7 SCC 412 : (2015) 2 SCC (L&S) 539] . It is not
for the courts to substitute a Scheme or add or subtract from the terms thereof in judicial review, as
has been recently emphasised by this Court in State of H.P. v. Parkash Chand [State of H.P. v.
Parkash Chand, (2019) 4 SCC 285 : (2019) 1 SCC (L&S) 621] ."

13. Upon applicability of aforesaid judgments in the present facts and circumstances of the
case, it is evident that petitioner's father admittedly expired prior to the advent of New Pension
Scheme with application for compassionate appointment also being submitted prior to the cut-off
date of 1st April 2005.
292 INDIAN LAW REPORTS ALLAHABAD SERIES

14. Once the opposite parties admit that application for appointment was submitted by the petitioner
much prior to the cut-off date, no cogent reason has been indicated in the counter affidavit as to why the
appointment of petitioner was delayed for almost four months with such appointment order being issued on
27th July 2005.

15. As has been enunciated in the aforesaid cited judgments, in case a benefit is required to be granted
to an employee or the heir of deceased employee with two dates being material, with one date being fixed
and the other being variable depending upon acts or omissions of the parties concerned, it is the fixed date
which will have precedence over the date which is variable.

16. In the present facts and circumstances and particularly with regard to reason indicated in the
impugned order for rejecting petitioner's application, it is evident that petitioner's application for inclusion
under the Old Pension Scheme has been rejected only on the ground that no advertisement for the vacant post
was ever issued prior to the cut-off date of 1st April 2005 as required under the Government Order.

17. The counter affidavit does not advert to any aspect or rule whereunder compassionate appointment
is required to be made only after advertisement of the vacancy that has occurred. There is no such provision
even in the Rules of 1974 which require compassionate appointment to be made only after advertisement of
the vacancy which has occurred due to passing away of the substantively appointed employee.

18. As such the reasoning for rejection of petitioner's application on the ground that no advertisement
for the vacancy was issued prior to 1st April 2005, it is clearly unreasonable.

19. A perusal of the Government Order dated 28th June 2024 particularly paragraph 4 thereof also is
indicative of the fact that for inclusion under the Old Pension Scheme, the post or vacancy on which
appointment has been made should have been advertised/notified prior to 28th March, 2005 with actual
appointment and joining being made on or after Ist April, 2005. Relevant paragraph of the government order
is as follows:-

"इस संबंध में न्यायालयों के ननणथयों, केन्र सरकार के उपरोक्त कायाथलय ज्ञाप ददनांक 03.03.2023 और पवसभन्न
अभ्यावेदनों / संदभों के आलोक में राज्य सरकार द्वारा सम्यक पविारोपरान्त यह ननणथय सलया गया है कक उत्तर प्रदेश
सरकार के कासमथकों एवं पररषदीय पवद्यालयों/शासन से सहायता प्राप्त सशक्षण संस्थाओं / राज्य सरकार द्वारा अनुदाननत
स्वायत्तशासी संस्थाओं, जिनमें राज्य कमथिाररयों की पेंशन योिना की भांनत पेंशन योिना लागू रही है और जिनका पवत्त
पोषण राज्य सरकार की समेककत ननचध से ककया िाता है, के ऐसे सभी कासमथकों को उस पद या ररजक्त के सापेक्ष ननयुक्त
ककया गया है, जिसे भती / ननयुजक्त के सलए राटरीय पेंशन प्रणाली की अचधसूिना की तारीख अथाथत ददनांक 28.03.2005 के
पूवथ पवज्ञापपत / अचधसूचित ककया गया था और ददनांक 01.04.2005 को अथवा उसके पश्िात सेवा में कायथभार ग्रहण करने पर
राटरीय पेंशन प्रणाली के अन्तगथत कवर ककया गया है, "उत्तर प्रदेश ररटायरमेन्ट बेननकफट्स रुल्स, 1961 के अधीन कवर ककए
िाने के सलए एक बार पवकल्प ददया िाए।"

20. In the present case, admittedly vacancy has occurred on account of demise of father of
petitioner prior to 1st April 2005 and since admittedly there is no provision for compassionate
3 All. Chandra Choor Singh Vs. State of U.P. & Ors.
293
appointment only after issuance of advertisement, in the considered opinion of this Court, the
relevant condition of vacancy having occurred prior to the cut-off date of 1st April 2005 stands
satisfied.

21. Taking recourse to the judgments of Hon'ble Supreme Court cited herein above, it being
evident that appointment of petitioner subsequent to the cut-off date of 1st April 2005 was a
variable at the instance of opposite parties who have not furnished any cogent explanation for not
issuing appointment letter to the petitioner prior to the cut-off date when the application for
appointment was made admittedly prior to the said cut-off date, no such benefit can be granted to
the opposite parties for their own delay.

22. In view of aforesaid discussion, in the considered opinion of this court, the fixed date i.e.
date of death of petitioner's father would have precedence over the variable date of appointment of
petitioner as per law enunciated in the judgments cited herein above and therefore it is held that
petitioner would be covered by the Old Pension Scheme.

23. In view of aforesaid, the impugned order dated 2nd June 2025 is hereby quashed by
issuance of writ in the nature of Certiorari. Further a writ in the nature of Mandamus is issued
commanding the opposite parties to allow the benefit of Old Pension Scheme under provisions of
U.P. Retirement Benefit Rules, 1961 and the General Provident Fund (Uttar Pradesh) Rules 1985 to
the petitioner. The opposite parties are also directed to adjust the amount deducted from salary for
New Pension Scheme to be adjusted in the Old Pension Scheme in terms of Rules of 1961 and
1985.

24. Consequential orders for compliance of the judgment shall be issued by the concerned
authority expeditiously within a period of three months from the date a certified copy of this order
is served upon concerned authority.

25. Resultantly, the petition succeeds and is allowed. Parties to bear their own costs.
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(2026) 3 ILRA 293
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.03.2026

BEFORE

THE HON'BLE ALOK MATHUR, J.
THE HON'BLE AMITABH KUMAR RAI, J.

Writ A No. 12693 of 2024

Chandra Choor Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Issue(s) for consideration