# Dr.(Mrs.) Abha Agarwal v. Vice Chancellor, Allahabad University, Allahabad

- **Citation:** (2003) 2 ILRA 580
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-07-25
- **Case number:** Civil Misc. Writ Petition No.3818 of 2001
- **Bench:** A.K. Yog, Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-mrs-abha-agarwal-v-vice-chancellor-allahabad-university-allahabad-40132
- **Pages:** 4

## Headnote

Constitution of India- Article 226-Service
Law- whether dearness Allowance can
be granted to the family pensioner who
is already employed in any office of the
State?

Held- Yes- Petition allowed.

Held- Para 10

We find that the Act of the respondent
no.4
in
deducting
the
amount
Rs.44,824.55 from the account of the
petitioner on the alleged ground of her
being
in
employment
was
illegal,
arbitrary and without jurisdiction or
justification. Otherwise also no such
deduction
should
have
been
made
without giving notice or opportunity to
the petitioner. We deprecate one sided
action of Respondent no.4.
Case Law discussed:
2000 (87) FLR 435

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2003
580

10. The writ petition succeeds and is
allowed. The order of the Labour Court
dated 12th January, 1998 (Annexure '12'
to the writ petition) is quashed and the
application filed by the workman under
Section 33-C (2) of the Act is held to be
not maintainable. However, it will be
open to the workman to take such
recourse of law as are open to him. There
will be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.7.2003

BEFORE
THE HON'BLE A.K. YOG, J.
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No.3818 of 2001

Dr.(Mrs.) Abha Agarwal
...Petitioner
Versus
Vice Chancellor, Allahabad University,
Allahabad

 ...Respondents

Counsel for the Petitioner:
Sri R.B. Singhal

Counsel for the Respondents:
Sri Dr. R.G. Padia
Sri P. Padia
Sri R.G. Tripathi
S.C.

Constitution of India- Article 226-Service
Law- whether dearness Allowance can
be granted to the family pensioner who
is already employed in any office of the
State?

Held- Yes- Petition allowed.

Held- Para 10

We find that the Act of the respondent
no.4
in
deducting
the
amount
Rs.44,824.55 from the account of the
petitioner on the alleged ground of her
being
in
employment
was
illegal,
arbitrary and without jurisdiction or
justification. Otherwise also no such
deduction
should
have
been
made
without giving notice or opportunity to
the petitioner. We deprecate one sided
action of Respondent no.4.
Case Law discussed:
2000 (87) FLR 435

(Delivered by Hon'ble A.K. Yog, J.)

1. Petitioner before us, Dr.(Mrs.)
Abha Agarwal, has filed this petition
under Article 226, Constitution of India
claiming following reliefs :-

(i) issue a writ, order or direction in the
nature of mandamus directing the
respondents to pay on Family Pension
to the petitioner payable on the basis
of death of her husband, Dr. D. C.
Agarwal, including DA and other
adhoc reliefs w. e. f. 7.7.1992.

(ii) issue a writ, order or direction in the
nature of mandamus directing the
respondents to refund Rs.44,824.55
deducted from the Bank Account of
the petitioner on the basis of excess
payment being given to the petitioner
in the form of DA on the Family
Pension being paid to the petitioner
along with interest of 18% per annum.

(iii)issue a writ, order or direction in the
nature of Mandamus directing the
respondents to pay 18% interest on the
amount which has been withheld by
the respondents in the form of DA and
other adhoc reliefs from the date it
falls due to the petitioner.

(iv) Issue any other writ, order or direction
which this Hon'ble Court may deem it
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2 All] Dr. (Mrs.) Abha Agarwal V. Vice Chancellor, Allahabad University and others
581
fit and proper in the circumstances of
the case.

(v) Allow the cost of the petition to the
petitioner.

2. Petitioner has approached this
Court
pleading,
inter-alia,
that
her
husband Dr. D. C. Agarwal, an eminent
personality in the field of education was
serving as Reader in the Department of
Applied Physics, University of Allahabad,
when he died prematurely on 6th July,
1992 leaving behind his wife (the
petitioner) and two minor daughters.
Petitioner was also working as Lecturer in
the Department of English in an affiliated
college
of
the
University
(called
'Allahabad Degree College, Allahabad')
since July, 1972. She was later promoted
on the post of Reader and working as such
in the said College when her husband
died.
Petitioner
applied
for
family
pension;
University
passed
requisite
orders sanctioning family pension vide
order dated 8th February, 1994 at certain
rates mentioned in the said order
(Annexure-2 to the Writ Petition) at the
rate of Rs.1372/- per month for the period
7.7.1992 to 2.6.1999.

3. All of sudden petitioner found
that an amount of Rs.44,824.55 has been
deducted from the family pension account
in the Bank when she happened to see her
Pass Book of the said bank account.
Petitioner made request for furnishing
copy of the order on the basis of which
said deduction was made. She was later
confronted with Government Order dated
16th May, 1988 (Annexure-4 to the Writ
Petition)
by
the
Treasury
Officer/
Respondent who referred to Clause (iv) of
the said Government order on the basis of
which petitioner was not entitled for
Dearness Allowance on family pension
since she was employed. Petitioner claim
to have come across a news report
published in 'Northern India Patrika,
Sunday dated 20th November, 2000 which
referred to a decision of Supreme Court
holding
that
a
widow
working
independently would not be deprived of
benefit of Dearness Allowances on family
pension
(Annexure-4A
to
the
Writ
Petition). It is contended that
the
petitioner cannot be deprived of benefit of
Dearness Allowance on family pension on
the basis of alleged Government Order in
view of the Supreme Court judgement in
the case of H.S.E.B. and others Versus
Azad
Kaur,
2000(87)
FLR
435
(Annexure-5 to the Writ Petition).

4. On behalf of Respondent nos.1, 2
and 3 Counter Affidavit (sworn by V. K.
Singh, Legal Assistant of the University)
has been filed.

5. The defence of the contesting
respondents is contained in para 7 of the
Counter Affidavit, which refers to the
University letter dated 8.2.1994 issued by
the
Assistant
Registrar
(Accounts),
wherein it is written "In this connection it
is important that in terms of Government
Order
dated
16.5.88,
the
dearness
allowance is not to be granted to such
pensioners/family pensioner who are
employed in any department of the
State/in any office in the State" and
further it is mentioned in the said
paragraph of the Counter Affidavit,
"admittedly,
the
writ
petitioner
is
employed as Reader in the Department of
English,
Allahabad
Degree
College,
Allahabad, from before the death of her
husband and she is working even today in
the said capacity. Thus, she is not entitled
for the benefit of double dearness
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
582
allowance ..... The University regrets that
inadvertently the same was paid to the
petitioner to the extent of Rs.44,824.55
and the said amount has now been
deducted
by
the
Treasury
Officer,
Allahabad being the excess amount paid
by mistake to the petitioner ........"

6. In the Rejoinder Affidavit,
petitioner has refuted the defence taken by
the
respondents-University
in
their
counter
affidavit
relying
upon
the
decision of the Apex Court in the case of
H. S. E.B (supra) and it is argued that
action of the Respondent is arbitrary and
illegal.

7. Heard learned counsel for the
parties and perused the record.

8. Learned counsel for the petitioner
Sri R. B. Singhal, Advocate, has drawn
our notice to the aforementioned Apex
Court judgment in the Case of H.S.E.B
(Supra) and referred to the observations
made in paras 5 & 6 of the said judgment,
which reads: -

"It can have no reference to any
independent employment or any other
independent source of livelihood which
the family members may possess. The
mere fact that the widow is independently
employed is a teacher elsewhere even
prior to the death of her husband, cannot
deprive the family of the benefit of the adhoc relief on family pension."

Again Apex Court had observed that :-

"Our attention is drawn to a
decision of the Division Bench of the
Punjab and Haryana High Court in the
case of Swaran Kaur v. State of Punjab,
1997(I) RSJ 325 (P&H-DB) where the
High Court, after ascertaining that the
petitioner therein had no secured any job
on compassionate grounds on account of
the death of her husband, nor had any
family member done so, held that
dearness allowance on family pension
could not be withheld. It said that the fact
that the widow was in service at the time
when her husband died would not deprive
her of dearness allowance on family
pension when the employment was not on
compassionate grounds. We, therefore,
agree with the reasoning and conclusion
reached by the High Court in the
impugned judgment."

9. We required the learned counsels,
representing
the
respondents
to
distinguish
the
aforesaid
decision.
Learned counsel for the respondents have
not been able to distinguish the judgment
on any score.

The
defence
taken
by
the
respondents has no merit.

10. Relying upon the aforesaid
judgment of the Apex Court H.S.E.B
(supra), we find that the Act of the
respondent no.4 in deducting the amount
Rs.44, 824.55 from the account of the
petitioner on the alleged ground of her
being in employment was illegal, arbitrary
and without jurisdiction or justification.
Otherwise also no such deduction should
have been made without giving notice or
opportunity
to
the
petitioner.
We
deprecate one sided action of Respondent
no.4.

In the result, petition deserves to be
allowed and is hereby allowed.

11. A writ in the nature of
mandamus
is
issued
directing
the
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2 All] Arvind Kumar Rai V. The U.P. Public Service Commission and another
583
respondents to pay the petitioner family
pension month by month in accordance
with law as was being paid on the basis of
the University order dated 8.2.1994
(Annexure-2 to the Writ Petition) and
refund Rs.44,824.55 along with 10%
simple interest per annum from the date it
is being deducted till the date it refunded
within four weeks of receipt of a certified
copy of this order. Further pensionary
benefits shall also be paid month by
month in accordance with law.

No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2003

BEFORE
THE HON'BLE A.K. YOG, J.
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No.31746 of 1997

Arvind Kumar Rai

...Petitioner
Versus
U.P. Public Service Commission and
another

 ...Respondents

Counsel for the Petitioner:
Sri Ajay Sharma

Counsel for the Respondents:
S.C.

Constitution of India Article 226-Service
law selection-deliberate concealment of
criminal
conduct-petitioner
initially
declared
successful-on
complaint-his
candidature cancelled-plea of bonafide
mistake-conduct, projects his ulterior
motive and crafty approach-not fit for
appointment on gazetted post-petition
dismissed.

Held- Para 17 & 18

It is not only that the petitioner had left
to mention the pendency of criminal case
against
him,
but
had
deliberately
concealed the fact that in the said
criminal case he had already been
convicted by the Court of Sessions Judge
and in that connection he was also under
detention in the lock up/jail for some
time. In addition to this deliberate
concealment of fact, he while going to
appear for the interview held for such
merit examination, he gave a deliberate
false certificate in the attestation form.

As a matter of fact, we are convinced
that the petitioner has absolutely no
bona fide in the present matter which
could
entitle
him
to
obtain
a
discretionary relief under Article 226 of
the Constitution of India, against the
impugned
orders
whereby
his
candidature
to
the
Combined
State
Services Examination (Civil) of the year
1991, had been cancelled.
AIR 1999SC page 2326 distinguished

(Delivered by Hon'ble Umeshwar Pandey, J.)

1. The petitioner, Arvind Kumar
Rai,
a
candidate
initially
declared
successful in the Combined State/Upper
Subordinate
Services
(Main)
Examination, 1991, has approached this
Court
under
Article
226
of
the
Constitution of India with a prayer to
quash the orders passed by respondent
no.1, U.P. Public Service Commission
(hereinafter
referred
to
as
the
'Commission')
dated
2.12.1996
(Annexure-5)
and
dated
10.6.1997
(Annexure-7) whereby his candidature to
the aforesaid examination was cancelled
and his representation for review of the
said order was rejected.

2. In short, the facts are that the
petitioner, after having been finally
selected and declared successful as per the
Press
Release
(Annexure-1)
of
the
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