# Pushpa Singh v. G.M. Baroda U.P. Gramin Bank, GKP. & Ors

- **Citation:** (2023) 2 ILRA 462
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-31
- **Case number:** Writ-A No. 8973 of 2022
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pushpa-singh-v-g-m-baroda-u-p-gramin-bank-gkp-ors-49681
- **Pages:** 9

## Headnote

A. Civil Law - Family Pension - Pension
Regulations, 2018 - Regulation 38(6)(d) -
Regulation 38(6)(d) (i) Where family
pension is payable to more widows than
one, the family pension shall be paid to
the widows in equal shares - Regulation
38(6)(d)
(iii)
Where
the
deceased
employee or pensioner is survived by a
widow but has left behind eligible child or
children from another wife who is not
alive, the eligible child or children shall be
entitled to the share of family pension
which the mother would have received if
she had been alive at the time of the
death of the employee or pensioner -
Hindu Marriage Act, Ss 5, 11 - A Hindu,
cannot have two widows living at the
same time, as the second marriage by
virtue of S. 5 & S. 11 is a void marriage -
Regulation
38(6)(d)
would
not
be
applicable in the case of Hindus unless the
said person has married before the
enactment of the Hindu Marriage Act -
Regulation
38(6)(d)
of
the
Pension
Regulations, 2018 was enacted keeping in
mind that the employee can be other than
Hindu also where the second marriage is
not
a
void
marriage
by
virtue
of
applicability
of
personal
laws
-
Interpretation - a provision cannot be
interpreted so as to violate any other
statutory enactment - in the present case
being the Hindu Marriage Act - Literal
interpretation is to be avoided where it
leads to consequences which are not
contemplated by a central enactment
being the Hindu Marriage Act. (Para 12,
13, 15)

B. Claim of the petitioner for payment of
family pension - Petitioner was the first
wife of Late Tilak Dhari Singh who once
again married during the lifetime of the
petitioner with another lady namely Uma
Devi - petitioner was called upon to obtain
a Succession Certificate in respect of the
claim of the family pension - Bank argued
that the children born out of a void
marriage would be legitimate and would
be entitled to succeed to the estate - Held
- Once the second marriage of a Hindu is a
void marriage, the person married to such
a person - in the present case Uma Devi -
shall not qualify as a widow, thus, the
eligible child from the second marriage
would not get the benefit of 'family
pension'
in
equal
proportion
as
is
proposed to be argued by learned counsel
for the respondents/Bank (Para 16)

Allowed. (E-5)

List of Cases cited:

## Text

462 INDIAN LAW REPORTS ALLAHABAD SERIES
opposite party no.3 submitted his reply on
the show cause notice dated 17.4.2007.
Vide order dated 29.6.2007, resolution for
dismissal of opposite party no.3 was
passed. Subsistence allowance after being
placed under suspension, was not paid.
Vide order dated 10.2.2009, the District
Inspector of Schools disapproved the
proposed punishment of dismissal. The
Committee of Management filed Writ
Petition No.2495(SS) of 2009 which was
disposed of with direction to D.I.O.S. to
hear the Committee of Management again.

The D.I.O.S. fixed dates for hearing
on 18.5.2009, 26.5.2009 and 27.5.2009.
After considering, D.I.O.S. has again
disapproved the proposed punishment of
dismissal. The Committee of Management
has to pass the final punishment order of
dismissal from service only when the prior
approval is given by the District Inspector
of Schools, which on the contrary in the
present was refused. No final order of
punishment
can
be
passed
by
the
appointing authority i.e. Committee of
Management as there is no provision
contained in the Regulations under the
Intermediate
Education
Act,
1921
providing for passing punishment order
after the employee attains the age of
superannuation. In this view of the matter,
the law-report cited by learned counsel for
the petitioner is fully applicable to the
present facts and circumstances of the case.

25. In the various judgments of the
Hon'ble Apex Court as well as this Court, it
has been repeatedly held that prior approval
in case of dismissal of non-teaching staff is
necessary and if such prior approval is not
taken before termination of the services, the
termination is illegal and prior approval of
Inspector
or
Regional
Inspectree
is
necessary.

26. It is the admitted position that the
opposite
party
no.3
has
retired
on
30.6.2002
on
attaining
the
age
of
superannuation, therefore there is no
provision for conducting a disciplinary
enquiry after his retirement and nor any
provision stating that in case misconduct is
established, a deduction could be made
from retiral benefits.

27. Considering in totality of facts
and circumstances of the case, respondent
no.3 is entitled for the payment of salary
applicable to the post of clerk of the
institution inasmuch as the arrears of
salary w.e.f. the date found due. Therefore,
District Inspector of Schools is directed to
ensure entire payment inasmuch as arrears
of salary to the respondent no.3 within a
period of three months from the date of
production of a certified copy of this
order.

28. In the result, the writ petition is
finally disposed of.
----------

(2023) 2 ILRA 462
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.01.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-A No. 8973 of 2022

Pushpa Singh ...Petitioner
Versus
G.M. Baroda U.P. Gramin Bank, GKP. &
Ors. ...Respondents

Counsel for the Petitioner:
Ravi Shankar Mishra, Shiv Kumar Soni

Counsel for the Respondents:
Prashant Kumar Srivastava
2 All. Pushpa Singh Vs. G.M. Baroda U.P. Gramin Bank, GKP. & Ors.
463
A. Civil Law - Family Pension - Pension
Regulations, 2018 - Regulation 38(6)(d) -
Regulation 38(6)(d) (i) Where family
pension is payable to more widows than
one, the family pension shall be paid to
the widows in equal shares - Regulation
38(6)(d)
(iii)
Where
the
deceased
employee or pensioner is survived by a
widow but has left behind eligible child or
children from another wife who is not
alive, the eligible child or children shall be
entitled to the share of family pension
which the mother would have received if
she had been alive at the time of the
death of the employee or pensioner -
Hindu Marriage Act, Ss 5, 11 - A Hindu,
cannot have two widows living at the
same time, as the second marriage by
virtue of S. 5 & S. 11 is a void marriage -
Regulation
38(6)(d)
would
not
be
applicable in the case of Hindus unless the
said person has married before the
enactment of the Hindu Marriage Act -
Regulation
38(6)(d)
of
the
Pension
Regulations, 2018 was enacted keeping in
mind that the employee can be other than
Hindu also where the second marriage is
not
a
void
marriage
by
virtue
of
applicability
of
personal
laws
-
Interpretation - a provision cannot be
interpreted so as to violate any other
statutory enactment - in the present case
being the Hindu Marriage Act - Literal
interpretation is to be avoided where it
leads to consequences which are not
contemplated by a central enactment
being the Hindu Marriage Act. (Para 12,
13, 15)

B. Claim of the petitioner for payment of
family pension - Petitioner was the first
wife of Late Tilak Dhari Singh who once
again married during the lifetime of the
petitioner with another lady namely Uma
Devi - petitioner was called upon to obtain
a Succession Certificate in respect of the
claim of the family pension - Bank argued
that the children born out of a void
marriage would be legitimate and would
be entitled to succeed to the estate - Held
- Once the second marriage of a Hindu is a
void marriage, the person married to such
a person - in the present case Uma Devi -
shall not qualify as a widow, thus, the
eligible child from the second marriage
would not get the benefit of 'family
pension'
in
equal
proportion
as
is
proposed to be argued by learned counsel
for the respondents/Bank (Para 16)

Allowed. (E-5)

List of Cases cited:

1. Smt Violet Issaac & ors. Vs U.O.I. & ors.;
(1991) 1 SCC 725

2. Nitu Vs Sheela Rani & ors.; (2016) 16 SCC
229

3. Rameshwari Devi Vs St. of Bihar & ors.; AIR
2000 SC 735

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Shri Ravi Shankar Mishra,
learned counsel for the petitioner and Shri
Prashant
Kumar
Srivastava,
learned
counsel for respondents/Bank.

2. Present petition has been filed
stating that the husband of the petitioner
was working with the respondents - Bank
on a Class - IV post as a Peon and died on
23.11.2017. Subsequent to the death, the
petitioner moved an application for release
of the retiral dues, however, the same has
been denied and the petitioner was called
upon to obtain a Succession Certificate. In
pursuance to the said condition, the
petitioner filed proceedings before Civil
Judge (Junior Division), Pratapgarh being
M.N.R. No.48 of 2019. The said suit
considered the fact that the petitioner was
the first wife of Late Tilak Dhari Singh
who once again married during the lifetime
of the petitioner with one lady called Uma
Devi.
The
M.N.R.
No.48
of
2019
considered the respective claims of the
petitioner as well as the children of Uma
Devi and gave a categorical finding with
464 INDIAN LAW REPORTS ALLAHABAD SERIES
regard to the dues holding that the
petitioner alongwith the children born out
of the marriage of Late Tilak Dhari Singh
and Uma Devi would be entitled to the
retiral dues in the proportion as determined
by the Court.

3. The dispute, subsequent to the
filing of the suit, has arisen on account of
claim of the petitioner for payment of
family pension. The respondents/Bank, on
a claim being made by the petitioner,
refused to grant the relief of payment of
family pension to the petitioner solely on
the ground that in the M.N.R. No.48 of
2019, the issue with regard to family
pension was not decided by the Court and
thus, placing reliance on provisions of
Regulation 38(6)(d) of Baroda U.P. Bank
(Employees') Pension Regulations, 2018
(hereinafter referred to as 'the Pension
Regulations, 2018'), the petitioner was
called upon to obtain a fresh Succession
Certificate in respect of the claim of the
family
pension.
The
petitioner
has
challenged the said decision of the
petitioner.

4.

Learned
counsel
for
the
respondent/Bank after having obtained
instructions argues that the payment of
family pension is to be determined in terms
of the guidelines as provided under
Regulation
38(6)(d)
of
the
Pension
Regulations, 2018. He further argues that
the children born out of a void marriage
would be legitimate and would be entitled
to succeed to the estate as has been
determined
through
the
litigation
in
between the parties.

5. Learned counsel for the petitioner
rebuts the said argument by arguing that
the law with regard to second marriage is
fairly well settled and the second
marriage of Uma Devi with the husband
of the petitioner was null and void by
virtue of Section 5 and Section 11 of the
Hindu Marriage Act.

6. In the light of the said
submission, this Court is to decide the
import of Regulation 38(6)(d) of the
Pension Regulations, 2018. Regulation 38
of the Pension Regulations, 2018 framed
by the Bank provides for the manner of
payment of family pension. Regulation
2(n) of the Pension Regulations, 2018
defines 'family', which reads as under:

"2.
Definitions.-
(1)
In
these
regulations, unless the context otherwise
requires,-

"........

(n)"family"
in
relation
to
an
employee means,-

(i) wife in the case of a male
employee or husband in the case of a
female employee (whether the marriage
took place before or after retirement);

(ii) a judicially separated wife or
husband, such separation not being
granted on the ground of adultery and the
person surviving was not held guilty of
committing adultery;

(iii)
(A)
unmarried
sons
or
unmarried daughters (born before or
after retirement including those adopted)
who have not attained the age of twentyfive years;

(B) unmarried sons or unmarried
daughters suffering from any disorder or
disability of mind or physically crippled;

(iv) widowed daughters or divorced
daughters
(born
before
or
after
retirement) without any age restriction;

(v)
parents
who
were
wholly
dependent on the employee when such
employee was alive, subject to the
following conditions:
2 All. Pushpa Singh Vs. G.M. Baroda U.P. Gramin Bank, GKP. & Ors.
465

(A) the deceased employee had left
behind neither a widow or widower nor an
eligible son or daughter or a widowed or
divorced daughter and that the earnings of
the parents is less than two thousand five
hundred and fifty rupees per month.

(B) where the deceased employee has
left behind a childless widow, they become
eligible for family pension only after the
death of childless widow or when her
independent income from all other sources
becomes equal to or higher than two
thousand five hundred and fifty rupees per
month;"

7. Regulation 38(6)(d) with which the
issue raised in the present case is
concerned, is quoted herein below:

38. Payment of family pension.-

"(6)..............

(d) (i) Where family pension is
payable to more widows than one, the
family pension shall be paid to the widows
in equal shares.

(ii) On the death of a widow, her share
of the family pension shall become payable
to her eligible child:

Provided that if the widow is not
survived by any child, her share of the
family pension shall not lapse but shall be
payable to the other widows in equal
shares, or if there is only one such other
widow, in full, to her.

(iii) Where the deceased employee or
pensioner is survived by a widow but has
left behind eligible child or children from
another wife who is not alive, the eligible
child or children shall be entitled to the
share of family pension which the mother
would have received if she had been alive
at the time of the death of the employee or
pensioner:

Provided that on the share or shares
of family pension payable to such a child or
children or to a widow or widows ceasing
to be payable, such share or shares shall
not lapse, but shall be payable to the other
widow or widows or to the other child or
children otherwise eligible, in equal shares,
or if there is only one widow or child, in
full, to such widow or child.

(iv) Where the deceased employee or
pensioner is survived by a widow but has
left behind eligible child or children from a
divorced wife or wives, such eligible child
or children shall be entitled to the share of
family pension which the mother would
have received at the time of death of the
employee or pensioner had she not been so
divorced:

Provided that on the share or shares
of family pension payable to such a child or
children or to a widow ceasing to be
payable, such share or shares, shall not
lapse, but shall be payable to the other
widow or widows or to the other child or
children otherwise eligible, in equal shares,
or if there is only one widow or child, in
full, to such widow or child."

8.

Learned
counsel
for
the
respondents at this stage argues that
Regulation 38(6)(d) deals with the issue,
however, Regulation 49 which deals with
nomination and Regulation 54 which is
residuary provision, would also have some
bearing in the issue raised in the present
petition. Regulation 49 and 54 are quoted
herein below:

"49. Nomination.- (1) The trust shall
allow every employee governed by these
regulations
to
make
a
nomination
conferring on one or more persons the
right to receive the amount of pension
benefits under these regulations in the
event of his death before that amount
becomes payable or, having become
payable, has not been paid and such
466 INDIAN LAW REPORTS ALLAHABAD SERIES
nomination shall be made in such form as
may be specified by the Bank from time to
time.

(2) If any employee nominates more
than one person under sub-regulation (1),
he shall, in his nomination, specify the
amount or share payable to each of the
nominees in such a manner as to cover the
whole of the amount of the pension benefits
that may be payable in the event of his
death.

(3) A nomination made by an
employee may, at any time, be modified or
revoked by him after giving a written notice
to the trust of his intention of doing so in
such form as the Bank may from time to
time specify.

(4) A nomination or its revocation or
its modification shall take effect to the
extent it is valid on the date on which it is
revised by the trust."

"54. Residuary provisions.- In case of
doubt, in the matter of application of these
regulations, regard may be had to the
corresponding provisions of Central Civil
Services Rules, 1972 or Central Civil
Services (Commutation of Pension) Rules,
1981 applicable for Central Government
employees
with
such
exceptions
and
modifications as the Bank, after consultation
with Bank of Baroda being the Sponsor Bank
and the National Bank and with the previous
sanction of the Central Government, may
from time to time, determine."

9. It is well settled that family pension
does not form a part of the estate and is
payable to only the persons who are named
in the regulations/rules governing the grant
of family pension. The said issue was
considered by the Hon'ble Supreme Court
in the case of Smt Violet Issaac & Ors. v.
Union of India & Ors.; (1991) 1 SCC 725
wherein the Hon'ble Supreme Court has
held as under:

4. The dispute between the parties
relates to gratuity, provident fund, family
pension and other allowances, but this
Court
while
issuing
notice
to
the
respondents confined the dispute only to
family pension. We would therefore deal
with the question of family pension only.
Family Pension Rules, 1964 provide for the
sanction of family pension to the survivors
of a Railway employee. Rule 801 provides
that family pension shall be granted to the
widow/widower and where there is no
widow/widower to the minor children of a
Railway servant who may have died while
in service. Under the Rules son of the
deceased is entitled to family pension until
he attains the age of 25 years, an
unmarried daughter is also entitled to
family pension till she attains the age of 25
years or gets married, whichever is earlier.
The Rules do not provide for payment of
family pension to brother or any other
family member or relation of the deceased
Railway employee. The Family Pension
Scheme under the Rules is designed to
provide relief to the widow and children by
way of compensation for the untimely death
of the deceased employee. The Rules do not
provide for any nomination with regard to
family pension, instead the Rules designate
the persons who are entitled to receive the
family pension. Thus, no other person
except those designated under the Rules
are entitled to receive family pension. The
Family Pension Scheme confers monetary
benefit on the wife and children of the
deceased Railway employee, but the
employee has no title to it. The employee
has no control over the family pension as
he is not required to make any contribution
to it. The family pension scheme is in the
nature of a welfare scheme framed by the
Railway administration to provide relief to
the widow and minor children of the
deceased employee. Since, the Rules do not
2 All. Pushpa Singh Vs. G.M. Baroda U.P. Gramin Bank, GKP. & Ors.
467
provide for nomination of any person by
the deceased employee during his lifetime
for the payment of family pension, he has
no title to the same. Therefore, it does not
form part of his estate enabling him to
dispose of the same by testamentary
disposition.

5. In Jodh Singh v. Union of India
[(1980) 4 SCC 306 : 1980 SCC (L&S)
549], this Court on an elaborate discussion
held that family pension is admissible on
account of the status of a widow and not on
account of the fact that there was some
estate of the deceased which devolved on
his death to the widow. The court observed:

"Where a certain benefit is admissible
on account of status and a status that is
acquired on the happening of certain event,
namely, on becoming a widow on the death
of the husband, such pension by no stretch
of imagination could ever form part of the
estate of the deceased. If it did not form
part of the estate of the deceased it could
never be the subject matter of testamentary
disposition."

The court further held that what was
not payable during the lifetime of the
deceased over which he had no power of
disposition could not form part of his
estate. Since the qualifying event occurs on
the death of the deceased for the payment
of family pension, monetary benefit of
family pension cannot form part of the
estate of the deceased entitling him to
dispose of the same by testamentary
disposition."

10. The said judgment was followed
by the Hon'ble Supreme Court in the case
of Nitu v. Sheela Rani & Ors.; (2016) 16
SCC 229, wherein the Hon'ble Supreme
Court has held as under:

"17. It is pertinent to note that in this
case the pension is to be given under the
provisions of the Scheme and therefore,
only the person who is entitled to get the
pension as per the Scheme would get it.
Similar issue had arisen before this Court
in Violet Issaac v. Union of India [Violet
Issaac v. Union of India, (1991) 1 SCC 725
: 1991 SCC (L&S) 551] and after
considering the relevant provisions, this
Court came to the conclusion that family
pension does not form part of the estate of
the deceased and therefore, even an
employee has no right to dispose of the
same in his will by giving a direction that
someone other than the one who is entitled
to it, should be given the same. In the
instant case, as per the provisions of the
Scheme, the appellant widow is the only
family member who is entitled to the
pension and therefore, the respondent
mother would not get any right in the
pension. Of course, it cannot be disputed
that if there are other assets left by late
Shri Yash Pal, the respondent mother
would get 50% share, if late Shri Yash Pal
had not prepared any will and it appears
that late Shri Yash Pal had died intestate
and no will had been executed by him."

11. Considering the submissions
made at the Bar, Regulation 38(6)(d) of the
Pension Regulations, 2018, on its plain
reading, provides that where the family
pension is payable to more widows than
one, the family pension shall be paid to the
windows in equal shares; Regulation
38(6)(d)(ii) provides that in the event of
death of a widow, her share of the family
pension shall become payable to her
eligible child, and Regulation 38(6)(d)(iii)
provides
that
in
case
the
deceased
employee is survived by a widow and has
left behind eligible child or children from
another wife who is not alive, the eligible
child or children shall be entitled to the
share of family pension which the mother
468 INDIAN LAW REPORTS ALLAHABAD SERIES
would have received if she had been alive
at the time of death of the employee or
pensioner.

12. A plain reading of the provision as
contained in Regulation 38(6)(d) of the
Pension Regulations, 2018 makes it clear
that where there are more widows than one,
they would be entitled to family pension in
equal shares, however, keeping in view the
mandate of the Hindu Marriage Act, it is
not possible that a Hindu after enactment of
the Hindu Marriage Act is survived by
more than one widow as the second
marriage by virtue of Section 5 and Section
11 is a void marriage. It appears that
Regulation
38(6)(d)
of
the
Pension
Regulations, 2018 was enacted keeping in
mind that the employee can be other than
Hindu also where the second marriage is
not
a
void
marriage
by
virtue
of
applicability of personal laws.

13. On the first brush, on a plain
reading of Regulation 38(6)(d), the right of
more than one than one widow is evident,
however, it is well settled that a provision
cannot be interpreted so as to violate any
other statutory enactment - in the present
case being the Hindu Marriage Act. Literal
interpretation is to be avoided where it
leads to consequences which are not
contemplated by a central enactment being
the Hindu Marriage Act.

14. In the present case, without doing
any mischief to Regulation 38(6)(d) of the
Pension Regulations, 2018, the only rule of
interpretation which can be adopted is the
purposive interpretation.

15. As a Hindu, after the enactment of
the Hindu Marriage Act, by virtue of the
statute, cannot have two widows living at
the same time, I have no hesitation in
holding that Regulation 38(6)(d) of the
Pension Regulations, 2018 in respect of
rights of more than one widows would not
be applicable in the case of Hindus unless
the said person has married before the
enactment of the Hindu Marriage Act.

16. Similarly interpreting Regulation
38(6)(d)(iii), the said provision entitles
eligible children of a widow only in the
event that she qualifies to be a 'widow'.
Once the second marriage of a Hindu is a
void marriage, the person married to such a
person - in the present case Uma Devi -
shall not qualify as a widow, thus, the
eligible child from the second marriage
would not get the benefit of 'family
pension' in equal proportion as is proposed
to be argued by learned counsel for the
respondents/Bank.

17. Coming to the provisions of
Regulation
49,
which
provides
for
nomination, it is well settled that a nominee
has a right to receive for benefits of all the
legal heirs and there cannot be any quarrel
with the provision contained in Regulation
49 of the Pension Regulations, 2018. In any
event, in view of the law laid down by the
Hon'ble Supreme Court in the case of Smt
Violet Issaac (supra) and Nitu (supra), no
right of nomination is available in respect
of 'family pension'.

18. As regards Regulation 54, which
provides that in the event of doubt, the
Bank has the option to take a decision and
modify the rules to align the same with the
Central Civil Services Rules, 1972 or
Central Civil Services (Commutation of
Pension), Rules, 1981 with the previous
sanction of Central Government, it is
admitted that no such determination of
applying any of the said two Rules have
been made applicable with the previous
2 All. Pushpa Singh Vs. G.M. Baroda U.P. Gramin Bank, GKP. & Ors.
469
sanction of the Central Government by the
Bank so far.

19. At this stage, learned counsel for
the respondents has placed reliance on an
Office Memorandum dated 27.11.2012
issued by the Government of India,
Ministry of Personnel, P.G. & Pension,
Department of Pension & Pensioners'
Welfare, however, as I have already held
that the Bank has not yet taken any
decision of applying the aforesaid two
Rules on the Bank employees, the said
office memorandum will be of no avail.

20. Coming to the judgments cited by
learned counsel for the respondents in the
case of Rameshwari Devi v. State of Bihar
and Ors.; AIR 2000 SC 735, the Hon'ble
Supreme
Court
was
considering
the
benefits which flow to the children of the
second wife and the Court held that they
would be entitled. However, while doing
so, the Court had referred to the CCS Rules
as well as the Bihar Government Servants
Conduct
Rules
and
had
given
the
interpretation in view of the rules prevalent
there.

21. In the present case, the rules are
different and are not akin to the CCS
Rules or the Bihar Government Servants
Conduct Rules, which prohibit second
marriage and the Court held that no
departmental inquiry was initiated against
the employee while he was surviving on
the basis of the said rules, thus, the said
judgment would have no applicability to
the facts of the present case.

22. Coming to the other judgment
relied upon by the respondents in the case
of Amlawati Devi v. The State of Bihar &
Ors.; MANU/BH/0047/2003 wherein the
Court placing reliance on the judgment of
the Hon'ble Supreme Court in the case of
Rameshwari Devi (supra) has held that the
second wife would be entitled to the share
of family pension.

23. As I have already held that the
facts leading to the judgment in the case
of Rameshwari Devi (supra) would not
be applicable while interpreting the
regulations as framed by the Bank, thus,
the judgment in the case of Amlawati
Devi
(supra)
would
have
no
applicability to the facts of the present
case.

24. Coming to the third judgment
cited
by
learned
counsel
for
the
respondents in the case of Indu Devi v.
The State of Bihar & Ors.; Civil Writ
Jurisdiction Case No.7092 of 2016
decided on 14.11.2017 where the High
Court had the occasion to deal with the
circular of the Finance Department dated
06.09.1996 and had held that the second
wife would also be entitled for family
pension. The said judgment has no
applicability to the facts of the present
case as no such circular/provision in the
present case exists.

25. In view of the interpretation as
recorded
above,
the
writ
petition
deserves to be allowed and ordered
accordingly.

26. Order dated 14.10.2022 as
contained in Annexure - 3 is set aside with
direction to the respondents/Bank to pay
the family pension to the petitioner in
accordance with law.

27. The arrears of family pension
shall be paid to the petitioner after its
computation within a period of four
months.
470 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2023) 2 ILRA 470
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.01.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE RAJENDRA KUMAR -IV

Writ A No. 9739 of 2018
with connected cases

Bal Krishana & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Satyaveer Singh, Sri Arun Kumar Yadav, Sri
Ravindra Kumar Patel, Sri Saquib Mukhtar, Sri
Satyaveer Singh, Sri Shri Krishna Mishra, Sri
Thakur Prasad Dubey, Sri Yawar Mukhtar, Sri T.P.
Singh(Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Abhinava Krishna Srivastava, Sri
Anand Kr. Srivastava, Sri Arun Kumar Yadav,
SriAvneesh Tripathi, Sri Bharat Pratap Singh, Sri
M.N. Singh, Sri Tarun Agarwal

A.
Civil
Law
-
Qualification
for
appointment - Assistant Teacher (Men/
Women) Hindi to teach students of Class
9th and 10th in Government Secondary
Intermediate Schools or Colleges - NCTE
(Determination of Minimum qualifications
for persons to be recruited as Education
Teacher and Physical Education Teacher
in
Pre-primary,
Upper
primary,
Secondary, Sr. Secondary or Intermediate
Schools or colleges) Regulation 2014 -
Regulation 4 prescribes graduation in the
subject
as
minimum
educational
qualification for the post of Assistant
Teacher - U.P. Subordinate Educational
(Trained Graduate Grade) Service Rules,
1983, Rule 8(6) - U.P. Subordinate
Education
(Trained Graduates Grade)
Service
(Fourth
Amendment)
Rules,
2016, Rule 8 - educational qualification
for the post of Assistant Teacher (Hindi)
is (i) Bachelor's degree with Hindi and
Intermediate with Sanskrit (ii) B.Ed. -
Grievance of the petitioners was that
they were graduates in Sanskrit and
Hindi & that the respondents cannot deny
eligibility of the petitioners on the ground
that the petitioners are not intermediate
with Sanskrit subject - Held - The point of
dispute is the prescribing of additional
qualification
of
"Intermediate
with
Sanskrit as a subject or equivalent
examination with Sanskrit" under Rule
8(6)(i) - prescribing of Intermediate with
Sanskrit as a subject, in addition to the
minimum qualification prescribed under
Regulation 4 of the NCTE Regulations,
2014 is looking into the syllabus of Class
9th and 10th - the additional qualification
has a direct bearing with the syllabus
prescribed for Class 9th and 10th -
petitioners
who
have
not
passed
Intermediate with Sanskrit as a subject,
but passed the Intermediate with other
subjects and did graduation in Sanskrit,
can not be said to possess higher
qualification as they have not completed
graduation through the channel/faculty
of the prescribed qualification of Sanskrit
as a subject in Intermediate. (Para 24,
20)

B. Civil Law - Constitution of India,1950 -
Article 226 - Judicial Review - Scope -
Qualification for appointment - essential
qualifications for appointment to a post are
for the employer to access, determine and
decide - Court can not in the garb of
judicial review, sit in the chair of the
appointing authority to decide what is best
for the employer - It is for the employer to
determine and decide the relevancy and
suitability of the qualification for any post
and it is not for the court to consider and
assess
it
-
while
prescribing
the
qualifications for a post, the St., as
employer, may legitimately bear in mind
several factors including the nature of the
job, the aptitudes requisite for the efficient
discharge of duties, the functionality of a
qualification and the content of the course
of studies (Para 15, 16)