# Mahendra Kumar Srivastava v. Sri Ajai Kumar Srivastava-I, Registrar General, Allahabad High Court & Ors

- **Citation:** (2021) 11 ILRA 46
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-22
- **Case number:** Contempt Application (Civil) No. 7438 of 2019
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-kumar-srivastava-v-sri-ajai-kumar-srivastava-i-registrar-general-46579
- **Pages:** 6

## Headnote

A. Civil Law - Contempt of Courts Act,1971Section 12-the retired employee would not
have any right of redetermination of his
pension but only in cases where salary is
revised with retrospective effect, the retired
employee gets the benefit of additional pension
and that too in certain cases-the present case
is not exception for redetermination of pension
using
upgraded
pay
scale
by
desired
retrospective effect-even though they retired
prior to the upgradation of pay scale of
PPS/HPS, they would be given benefit of the
upgraded pay scale that was made applicable
to such class of employees who were in service
subsequent to the retirement of the applicants
only because they retired as officiating Deputy
Registrars-Thus, three employee who were
wrongly given benefit of upgraded pay scale
necessary correction in their records have
already been made-Besides that there can be
no claim of equality even if a similarly placed
employee is given higher pay scale which
would not have been admissible in law-no
ground to give benefit to the applicant on the
basis of parity otherwise every pensioner
would stand entitled to a consolidated pension
at par ignoring the years of qualifying serviceThus, no cause survives for the applicants to
maintain
this
contempt
application
any
further.(Para 1 to 20)

The application is disposed off. (E-6)

List of Cases cited:

## Text

46 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)11ILR A46
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.09.2021

BEFORE

THE HON'BLE AJIT KUMAR, J.

Contempt Application (Civil) No. 7438 of 2019
&
Contempt Application (Civil) No. 7418 of 2019

Mahendra Kumar Srivastava ...Applicant
Versus
Sri Ajai Kumar Srivastava-I, Registrar General,
Allahabad High Court & Ors.
 ...Opposite Parties

Counsel for the Appellant:
Sri Anoop Kumar Srivastava

Counsel for the Respondent:
Sri Ashish Mishra, Sri Mata Prasad (S.C.)

A. Civil Law - Contempt of Courts Act,1971Section 12-the retired employee would not
have any right of redetermination of his
pension but only in cases where salary is
revised with retrospective effect, the retired
employee gets the benefit of additional pension
and that too in certain cases-the present case
is not exception for redetermination of pension
using
upgraded
pay
scale
by
desired
retrospective effect-even though they retired
prior to the upgradation of pay scale of
PPS/HPS, they would be given benefit of the
upgraded pay scale that was made applicable
to such class of employees who were in service
subsequent to the retirement of the applicants
only because they retired as officiating Deputy
Registrars-Thus, three employee who were
wrongly given benefit of upgraded pay scale
necessary correction in their records have
already been made-Besides that there can be
no claim of equality even if a similarly placed
employee is given higher pay scale which
would not have been admissible in law-no
ground to give benefit to the applicant on the
basis of parity otherwise every pensioner
would stand entitled to a consolidated pension
at par ignoring the years of qualifying serviceThus, no cause survives for the applicants to
maintain
this
contempt
application
any
further.(Para 1 to 20)

The application is disposed off. (E-6)

List of Cases cited:

1. Exide industries Ltd. Vs. U.O.I. & ors. (2015) II AD
SC 635

2. St. of W.B. & ors. Vs. W.B. Govt. Pensioners
Association & ors. (2002) AIR SC 538

3. Sudhir Kumar Consul Vs Allahabad Bank (2011) 3
SCC 486

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Anoop Kumar Srivastava, learned
counsel for the petitioner, Sri Kamlesh Kumar
Yadav, learned counsel for the petitioners in
Contempt Application (Civil) No. 7418 of 2019. Sri
Mata Prasad, learned Standing Counsel for State
respondent nos. 1 & 2 and Sri Ashish Mishra, learned
counsel for newly impleaded opposite party no. 3.

2. By means of this contempt application filed
under Section 12 of the Contempt of Courts Act,
1971 non-compliance of the order dated 24.05.2019
passed in Writ - A No. 61048 of 2016 is complained
of.

3. A compliance affidavit has been filed in this
case on behalf of the opposite party no. 3 on
28.01.2020 annexing therewith the order dated
03.09.2019, whereby it is claimed that the pension of
the applicant has come to be revised w.e.f.
01.01.2006, as per recommendation of the 6th Pay
Commission, and thus, it is claimed that the order of
writ Court stood complied with in its letter and spirit.

4. Having heard learned counsel for the
respective parties and their arguments raised
across the bar and having gone carefully through
11 All. Mahendra Kumar Srivastava Vs. Sri Ajai Kumar Srivastava-I, Registrar General, Allahabad High
 Court & Ors.
47
the order of writ Court, I find that the main issue
before the writ Court was as to whether the
applicant who belonged to the cadre of Personal
Assistant and reached to the stage of Principal
Private Secretary/ Head Private Secretary,
though retired while working as Deputy
Registrar on officiating basis only, could have
been denied benefits of 6th pay commission for
the purposes of revision in pension, as
admissible to Principal Private Secretary/ Head
Private Secretary (for short 'PPS/HPS').

5. The writ Court after examining the
relevant rules, held that prior to 2001, the pay
scale of the Deputy Registrars of the High Court
and that of the PPS/HPS was same and
therefore, taking recourse to Rule 20(c)(ii) of the
rules they were permitted to officiate as Deputy
Registrars. It is a case of the applicants that they
retired in the relevant years on attaining age of
superannuation between years 1999 and 2000
respectively while working as Officiating
Deputy Registrars. It is thus, they came to set up
a case that they have been treated to have retired
as Deputy Registrar instead of PPS/ HPS and
consequently they were being denied benefit of
revision in pension as per the recommendation
made by the 6th Central Pay Commission. The
writ Court referred to Rules, 2001, whereby,
Rule 20(c)(ii) of the Rules, 1976 came to be
repealed w.e.f. 15.11.2001 and the pay scale of
PPS/HPS also came to be upgraded. The issue
was raised in the writ petition to set up a claim
to give revised pension of PPS/HPS as per the
recommendation of 6th Pay Commission as if
the applicants were made to retire as Deputy
Registrar and conveyed the impression that since
they had retired as such they were denied pay
scale of PPS/HPS and subsequent revision in
pension. Accordingly, the Court permitted this
to be a pivotal question to be adjudicated upon
in the writ petition by framing the point thus:

"The pivotal question on which the
claim of the petitioners revolve is as to whether
the petitioners were appointed substantively on
the post of Deputy Registrar or in the alternative
whether petitioners continued to have lien on the
post of PPS/HPS upon being appointed on
transfer in officiating capacity to the post of
Deputy Registrar."

6. Thus, the writ Court proceeded to decide
this above question as substantial relief claimed
in the writ petition and after long discussion on
the point of lien of a person working in
officiating capacity and referring to various
authorities and placing substantial reliance upon
them, the writ Court finally held that applicants
who had retired as officiating Deputy Registrar
since were not working in a substantive capacity
as such, so they held their respective lien in their
parent cadre of PPS/HPS even at the time of
retirement. Thus, the applicants were held also
to be entitled to revised pension admissible to
the class of pensioners that retired from the post
of PPS/HPS and it is after holding as above that
the Court proceeded to pass the order for the
Chief Treasury Officer, Collectorate, Prayagraj
to revise pension of the applicants giving benefit
to them of the recommendation of the 6th Pay
Commission w.e.f. 01.01.2006 at par with those
persons of the PPS/HPS cadre as would have
been admissible to them w.e.f. 01.01.2006.

7. Learned counsel for the respective
applicants have argued that since the applicants
in the writ petition were held to have retired as
PPS/HPS, they would be consequently entitled
to the pension as was admissible to the
pensioners of the PPS/HPS cadre and also the
revised pension w.e.f. 01.01.2006.

8. Learned Standing Counsel has submitted
that admissibility of pension has to be judged in
a particular cadre as a pensioner on the date he
retired because pension has to be calculated on
the basis of the pay last drawn by the employee.
He submits that if the applicants' had retired
prior to the upgradation of pay scale in PPS/HPS
48 INDIAN LAW REPORTS ALLAHABAD SERIES
cadre, though they might have been mentioned
as officiating Deputy Registrar at the time of
superannuation but technically they had retired
as PPS/HPS only and in the pay scale that was
also of the PPS/HPS at that point of time. He has
argued further that revised pension as has been
directed to be paid to the applicants giving them
benefit
of
the
6th
Pay
Commission's
recommendation w.e.f. 01.01.2006, was never
an issue for the simple reason that the pension
has to be revised on the basis of pension drawn.
Learned Standing Counsel has submitted that
before the writ Court, the respondents might
have taken the defence that the applicants were
rightly retired as Deputy Registrar but that does
not change the situation either, the pay scale of
the Deputy Registrar and the PPS/HPS on the
date of such retirement being the same. Learned
Standing Counsel submitted that writ Court has
also held that a pension is calculated only on the
basis of last pay drawn.

9. Testing the arguments advanced by
learned counsel for respective parties on the
testing anvil of service jurisprudence qua
employer and employee relationship, I find that
the admissibility of the pension of any employee
would be dependant upon two factors: (i)
pension as admissible to the class of service; and
(ii) the requisite period of qualifying service for
such pension is attained, as per the rules. Both
these factors are governed under rules framed.
So far fixation of pension is concerned, it is
dependent upon the salary last fixed and drawn
as admissible under the relevant rules framed for
such purposes. Any upgradation of pay scale
admissible to a class of employee, if made after
a cut off date, such an upgradation cannot be
made applicable/ admissible to employees who
ceased to be employees of the establishment
before the cut off date either by virtue of
superannuation or resignation or termination/
removal, if such termination and removal has
attained finality, unless and until such rules are
given retrospective operation. So unless and
until such rules are held to be ultra vires and are
struck down by giving it retrospective effect, an
employee while in service will governed in the
matter of payment of pay scale and so also after
retirement
the
procedure
provided
for
computation of pension under such rules only. In
the case of Exide Industries Ltd. vs. Union of
India and others 2015 II AD (S.C.) 635, the
Supreme Court has very clearly observed that:

"In normal circumstances when an
employee retires from service, his relationship
with the employer comes to an end. It is also
well settled that after retirement, normally no
disciplinary action can, be initiated against the
concerned employee. Similarly, the retired
employee would not have any right of
redetermination of his pension but only in
cases where salary is revised with retrospective
effect, the retired employee gets the benefit of
additional pension and that too in certain
cases." (emphasis added)

10. Applying the above principle, I do not
find that the applicants' case can be taken as an
exception for redetermination of pension using
upgraded pay scale by desired retrospective
effect. In the entire judgment, non compliance of
which is complained of in this contempt
application, I do not find any finding returned in
favour of the petitioners/ applicants that even
though they retired prior to the upgradation of
pay scale of PPS/ HPS, they would be given
benefit of the upgraded pay scale that was made
applicable to such class of employees who were
in service subsequent to the retirement of the
petitioners/ applicants only because they retired
as officiating Deputy Registrars. Thus, three
employees who were wrongly given benefit of
upgraded pay scale necessary correction in their
records have already been made. Besides that
there can be no claim of equality even if a
similarly placed employee is given higher pay
scale which would not have been admissible in
law. In the case of State of West Bengal and
11 All. Mahendra Kumar Srivastava Vs. Sri Ajai Kumar Srivastava-I, Registrar General, Allahabad High
 Court & Ors.
49
others
vs.
West
Bengal
Government
Pensioners Association and others AIR 2002
SC 538, the Supreme Court has cited with
approval its earlier judgment in the case of K.L.
Rathi vide para 25 which is reproduced
hereunder:

"25. Again in K.L. Rathee v. Union of
India and others, the case of the petitioner was
that following Nakara case he had to be given the
same amount of pension as other employees of his
rank irrespective of the date of retirement. The
Court noted that Nakara did not strike down the
definition of 'emoluments' and held that:

"Nakara case does not lay down that the
same amount of pension must be paid to all
persons
retiring
from
government
service
irrespective of the date of retirement .... Even if
pension is calculated on the basis of the same
formula the basis of calculation has to be the
average of the last ten months emoluments. This
principle of adopting last ten months emoluments
as the basis for calculating of pension must be
uniformly applied to all persons drawing pension
from the Central Government. This was also that
was laid down in Nakara case. It, however, did not
lay down that the quantum of emoluments drawn
during the last ten months of service of each
government employee must be taken to be the same
for this purpose ....

The emoluments have to be calculated
according to the government rules in force at the
time of retirement of the employees."

11. In the case of Sudhir Kumar Consul
vs. Allahabad Bank (2011) 3 SCC 486, the
Supreme Court reaffirmed its earlier judgment
passed in the case of State of Punjab vs. Boota
Singh, Ex Services League vs. Union of India
and K.L. Rathi (supra) vide para 15 thus:

"15. ... We are of the view that the
retired employees (respondents), who had
retired from service before 1- 7-1986 and those
who were in employment on the said date,
cannot be treated alike as they do not belong to
one class. The workmen, who had retired after
receiving all the benefits available under the
Contributory Provident Fund Scheme, cease to
be employees of the appellant-Board w.e.f. the
date of their retirement. They form a separate
class."

16) In State of Punjab v. Boota Singh
case, (2000) 3 SCC 733, this Court has held that
the benefit conferred by the notification dated 97-1985 can be claimed by those who retire after
the date stipulated in the notification and those
who have retired prior to the stipulated date in
the notification are governed by different rules.
They are governed by the old rules, i.e., the rules
prevalent at the time when they retire. The two
categories of persons are governed by different
sets of rules. They cannot be equated. The grant
of additional benefit has financial implications
and the specific date for the conferment of
additional
benefits
cannot
be
considered
arbitrary. This Court held:

"In the case of Indian Ex-Services
League v. Union of India (1991) 2 SCC 104 this
Court distinguished the decision in Nakara case
(1983) 1 SCC 305 and held that the ambit of that
decision cannot be enlarged to cover all claim
by retirees or a demand for an identical amount
of pension to every retiree, irrespective of the
date of retirement even though the emoluments
for the purpose of computation of pension be
different. We need not cite other subsequent
decisions which have also distinguished Nakara
case (1983) 1 SCC 305. The latest decision is in
the case of K.L. Rathee v. Union of India (1997)
6 SCC 7 where this Court, after referring to
various judgments of this Court, has held that
Nakara case (1983) 1 SCC 305 cannot be
interpreted to mean that emoluments of persons
who retired after a notified date holding the
same status, must be treated to be the same. The
respondents are not entitled to claim benefits
which became available at a much later date to
retiring employees by reason of changes in the
rules relating to pensionary benefits."
50 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Thus, So far as the post and its cadre is
concerned, the writ Court rightly observed that
one who has been confirmed in service and has
been appointed in a substantive capacity in a
particular cadre would continue to belong such
cadre until his cadre is changed by giving him
substantive appointment either by transfer or by
promotion and a mere officiating charge would
not deny lien to an employee against his original
post in a cadre and so the applicants were rightly
held to have retired as PPS/HPS. But so far the
question of admissibility of pay scale is
concerned, an employee continues to be in a
regular cadre and the pay scale, so long as he is
in the employment, as admissible to him, would
be the pay scale that has been prescribed for
such employment against the post occupied. The
terms and conditions of payment of salary under
the Rules would operate in respect of an
employee so long as he is in employment and
after employee ceases to be an employee and
becomes a pensioner, he is shifted to a different
class from those working in a regular cadre. For
the purpose of pension, his last pay drawn is
taken into account and merely because an
employee has retired as PPS/HPS, he would not
become entitle to any pay scale which might
have been revised or upgraded after his attaining
the
age
of
superannuation
because
the
admissibility of pay scale is to be commensurate
to a person's status of holding a particular post
while in employment.

13. The applicants have set up a claim that
since they were treated to have retired as
PPS/HPS, they would be entitled to the revised
pension on the last pay drawn in the upgraded
pay scale by an employee of their cadre in the
year 2001.

14. This above argument cannot be
accepted. The applicants have been held to have
retired as PPS/HPS but the writ Court has not
directed that the upgraded pay scale of the
PPS/HPS after the superannuation of the
applicants would also be applicable to them.

15. In the considered opinion of the Court
also, such above plea is legally not maintainable.

16. Applicants' next submission that they
are not able to draw benefit of the order of writ
Court because they are already drawing revised
pension w.e.f. 01.01.2006 calculated on the basis
of pension that they were drawing on the last
pay drawn and that they have been made to
retire as Deputy Registrar, does not equally hold
any merit. The Court finds no contradiction in
the judgment. The judgment says that the
applicants would be taken to have retired as
PPS/HPS and so orders that they are entitled for
revised pension w.e.f. 01.01.2006 as admissible
to class of pensioners of PPS/HPS. The
applicants have not brought any instance that
any PPS/HPS who had retired prior to year 2001
and whose pay scale was at par with that of the
Deputy Registrar, had been awarded upgraded
pay scale as was made admissible w.e.f. 2001
only. Learned counsel for the applicants further
submitted that three of the PPS/HPS who had
retired like the applicants, were granted higher
pay grade even after retirement and so
consequential benefits were conferred upon
them in the revision of pension w.e.f.
01.01.1986. The applicants are right to the
extent that three such PPS/HPS namely Abdul
Ahad Khan, Lallan Mishra and Prakash Chandra
Gupta
who
had
retired
on
31.12.1984,
31.08.1999 and 31.01.2000 were those who had
been accorded with such benefit. However,
learned Standing Counsel as well as learned
counsel for the High Court have submitted that
this above anomaly later came to be noticed and
has now stood rectified in the order dated
03.09.2019, wherein, they had been accorded
pension at par with the applicants but of course
commensurate to their pay scale that they had
last drawn at the time of retirement.
11 All. Amar Dayal Vs. State of U.P.
51

17. In view of the above therefore, I do not
find any ground to give benefit to the applicants
on the basis of parity either.

18. Furthermore, the issue of admissibility
is always related to the words and expression "in
accordance with law" and so what is legally not
sustainable can also not be legally admissible
and therefore, when the Court directs for
payment of salary or pension, saying as
admissible, meaning thereby it has to be in
accordance with law. When the Court refers to
the words and expression "class of pensioners",
it means class of pensioners with admissibility
of pension, as commensurate to their pay scale
and emoluments lastly drawn, otherwise every
pensioner would stand entitled to a consolidated
pension at par ignoring the years of qualifying
service and the benefits drawn of promotional
pay scale or Acquired Career Progression
scheme respectively. This Court, therefore, finds
that neither opposite parties have acted in
violation of either the mandate contained in the
order of the writ Court, non compliance of
which is complained of, nor the petitionersapplicants' claim could be justified on the
principles governing conferment of benefits of
pension.

19. In view of the above, I find that the
order of revised pension dated 03.08.2019 and
03.09.2019 passed by the Registrar (Accounts),
High Court of Judicature at Allahabad and the
order passed by the Treasury Officer, Prayagraj
dated 13.09.2019 fully comply the order of writ
Court in its letter and spirit. Thus, no cause
survives for the applicants to maintain this
contempt application any further.

20. Contempt application is accordingly
consigned to record.

21. Notices issued, if any, stand
discharged.
----------
(2021)11ILR A51
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.11.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 1197 of 2020

Amar Dayal ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Laxmi Narayan Rathour, Sri Akhilesh Kumar
Khare, Sri Noor Muhammad, Sri Yogesh Kumar
Srivastava

Counsel for the Respondent:
A.G.A.

A. Criminal Law - Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code,
1860-Section 302-challenge to-conviction- the
appellant had inimical relation with his wife as
he had illicit relationship with some other
women-He
used
to
regularly
beat
her-
appellant poured kerosene oil and set her
ablazed-she was 50% burnt and after 11 days
she was succumbed to injuries-cause of death
was found to be septicemia-death of deceased
was a homicidal death-Five witnesses turned
hostile-death caused by the accused was not
premeditated-the
injuries
were
though
sufficient in the ordinary course of nature to
have caused death-Hence, the conviction of the
appellant u/s 302 IPC is converted into
conviction u/s 304 (Part-I) IPC.(Para 1 to 38)

B. Dying declaration can be acted upon as per
the contours laid down by the authoritative
pronouncements, we would like to go by the
the juristic theory regarding acceptability of a
dying declaration is that such declaration is
made in extremity, when the party is at the
point of death and when every hope of this
world is gone, when every motive to falsehood