# Rafat Naaz & Anr v. State of U.P. & Ors. 600 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 11 ILRA 599
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-29
- **Case number:** Writ A No. 6031 of 2024
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rafat-naaz-anr-v-state-of-u-p-ors-600-indian-law-reports-allahabad-series-51117
- **Pages:** 11

## Headnote

C.S.C.,
Rakesh
Kumar
Yadav,
Shishir
Kumar Tiwari

A.
Service
Law
-
Compassionate
appointment
-
Succession
-
Indian
Succession Act,1925- Section 372 - Uttar
Pradesh Recruitment of Dependents of
Government Servants Dying in Harness
Rules, 1974.

Nature of the right conferred by a
succession certificate - The grant of a
certificate does not establish title of the
grantee as the heir of the deceased, but
only furnishes him with authority to
collect his debts and allows the debtors to
make payments to him without incurring
any risk. In order to succeed in the
succession application the applicant has to
adduce cogent and credible evidence in
support of the application. All that the
succession certificate purports to do is to
facilitate the collection of debts, to regulate the
administration of succession and to protect
persons
who
deal
with
the
alleged
representatives of the deceased persons. Such a
certificate does not give any general power of
administration on the eSt. of the deceased. The
respondents can oppose grant of succession
certificate. It is for the parties to place evidence
in support of their respective claims and
establish their stands. DNA test is not to be
directed as a matter of routine and only in
deserving cases such a direction can be given.
(Para 16)

A nomination in the service records and a
succession certificate granted by the
Court u/s 372 of the Indian Succession
Act are at par; neither confers any
beneficial interest upon the recipient of
the proceeds. A person who asserts title or
beneficial interest in moneys or movable
property received by another under a
succession certificate, or for that matter, a
nomination can always institute a suit for
declaration
or
other
appropriate
consequential relief in order to establish
his beneficial interest or entitlement. At
the same time, once there is a nomination
left by the deceased in his service records
in favour of a person, who is his wife,
there is no reason for the respondents or
any employer to withhold payment of the
post retiral benefits in favour of the
nominee in the service records. It is for the
other person, not so nominated, to establish
his/her claim through suit.

In the present case, the fifth respondent is
certainly not a nominee of the deceased in any
of the service records. Her name does not
appear in those records as the deceased's wife.
Before this Court she has filed a photostat copy
of a Nikahnama dated 01.05.2016 and a
photostat copy of the certificate issued by the
Gram Pradhan, without occasion, about the
deceased and the fifth respondent living
together as man and wife. (Para 19)

There is not a shred of evidence produced by
the fifth respondent w.r.t. the divorce between
the first petitioner and the deceased. The
evidence about the fifth respondent's marriage
to the deceased at this stage is not of a kind,
upon which this Court in the exercise of writ
jurisdiction may act to accept her case even
prima facie, defeating the first petitioner's claim
founded on a nomination entered in the service
records of the deceased. Fifth respondent can
establish her claim to the whole or a share of
the moneys that the first petitioner would be
entitled to receive on account of the nomination
in her favour in the service records, by moving
the competent Court of original civil jurisdiction
through a suit for appropriate relief. But,
respondent Nos.1, 2, 3 and 4 are not entitled to
deprive the first petitioner of the post retiral
benefits, regarding which there is a nomination
in her favour in Rashid's service records. The
fact that the nomination is there is admitted in
para No.5 of the counter affidavit filed by
respondent
Nos.1,
2
and

## Text

11 All. Rafat Naaz & Anr. Vs. State of U.P. & Ors.
599
decision of the trial court as was done by
the Rajya Sabha Secretariat where the
petitioner was appointed as Protocol /
Executive Officer in the Rajya Sabha
Secretariat. The petitioner also relies on the
fact that he is already a member of the
Group - A service under the Central
Government. However, the aforesaid facts
are not sufficient for this Court to hold that
the appointing authority, in the present
case, has wrongly exercised its discretion
rejecting the claim of the petitioner. Two
different public employers may have
different views regarding the suitability of
a candidate for appointment and one
employer is not bound by the decision and
discretion of the other employer. The State
Government cannot be saddled with the
liability to mechanically and slavishly
follow the decision taken by the Central
Government
or
the
Rajya
Sabha
Secretariat. While rejecting the claim of the
petitioner, the State Government has taken
note of the fact that the petitioner is a
claimant for appointment on the post of
Deputy Collector in the Provincial Civil
Services (Executive). The appointment
sought by the petitioner is on a high post,
therefore, in accordance with the judgment
of the Supreme Court in Avtar Singh
(supra), a rigorous scrutiny regarding the
suitability of the petitioner for appointment
cannot be considered as an improper
exercise of discretion. Further, in light of
the judgment of the Supreme Court in
Nazrul Islam (supra), the petitioner cannot
be considered as suitable for appointment
in Provincial Civil Services (Executive) till
the pendency of the criminal case against
him.

14. So far as the opinion of the
appointing authority that the post of the
Deputy Collector is more sensitive post
than the post currently held by the
petitioner under the Central Government is
concerned, the comparative assessment of
the sensitivities of different posts lies
within the exclusive domain of the
Executive and the correctness of the
decision regarding the sensitivity and
importance of different posts cannot be
made on the basis of any judicially
manageable and recognized standards. The
said fact is a non-justiciable fact preventing
this Court from exercising its power of
judicial review.

15. The records available with the
Court do not show any improper motive or
mala fide or bias in the competent authority
and any such ground has also not been
pleaded by the petitioner while challenging
the impugned order.

16. There is no error in the opinion of
the appointing authority so as to persuade
this Court to interfere under Article 226 of
the Constitution of India.

17. For all the aforesaid reasons, there
is no error in the impugned order dated
28.02.2024 passed by the Additional Chief
Secretary, Appointment Section - III,
Government of Uttar Pradesh, Lucknow.

18. The writ petition is dismissed.
----------
(2024) 11 ILRA 599
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.11.2024

BEFORE

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

Writ A No. 6031 of 2024

Rafat Naaz & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
600 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Ishir Sripat, Siddharth Agrawal

Counsel for the Respondents:
C.S.C.,
Rakesh
Kumar
Yadav,
Shishir
Kumar Tiwari

A.
Service
Law
-
Compassionate
appointment
-
Succession
-
Indian
Succession Act,1925- Section 372 - Uttar
Pradesh Recruitment of Dependents of
Government Servants Dying in Harness
Rules, 1974.

Nature of the right conferred by a
succession certificate - The grant of a
certificate does not establish title of the
grantee as the heir of the deceased, but
only furnishes him with authority to
collect his debts and allows the debtors to
make payments to him without incurring
any risk. In order to succeed in the
succession application the applicant has to
adduce cogent and credible evidence in
support of the application. All that the
succession certificate purports to do is to
facilitate the collection of debts, to regulate the
administration of succession and to protect
persons
who
deal
with
the
alleged
representatives of the deceased persons. Such a
certificate does not give any general power of
administration on the eSt. of the deceased. The
respondents can oppose grant of succession
certificate. It is for the parties to place evidence
in support of their respective claims and
establish their stands. DNA test is not to be
directed as a matter of routine and only in
deserving cases such a direction can be given.
(Para 16)

A nomination in the service records and a
succession certificate granted by the
Court u/s 372 of the Indian Succession
Act are at par; neither confers any
beneficial interest upon the recipient of
the proceeds. A person who asserts title or
beneficial interest in moneys or movable
property received by another under a
succession certificate, or for that matter, a
nomination can always institute a suit for
declaration
or
other
appropriate
consequential relief in order to establish
his beneficial interest or entitlement. At
the same time, once there is a nomination
left by the deceased in his service records
in favour of a person, who is his wife,
there is no reason for the respondents or
any employer to withhold payment of the
post retiral benefits in favour of the
nominee in the service records. It is for the
other person, not so nominated, to establish
his/her claim through suit.

In the present case, the fifth respondent is
certainly not a nominee of the deceased in any
of the service records. Her name does not
appear in those records as the deceased's wife.
Before this Court she has filed a photostat copy
of a Nikahnama dated 01.05.2016 and a
photostat copy of the certificate issued by the
Gram Pradhan, without occasion, about the
deceased and the fifth respondent living
together as man and wife. (Para 19)

There is not a shred of evidence produced by
the fifth respondent w.r.t. the divorce between
the first petitioner and the deceased. The
evidence about the fifth respondent's marriage
to the deceased at this stage is not of a kind,
upon which this Court in the exercise of writ
jurisdiction may act to accept her case even
prima facie, defeating the first petitioner's claim
founded on a nomination entered in the service
records of the deceased. Fifth respondent can
establish her claim to the whole or a share of
the moneys that the first petitioner would be
entitled to receive on account of the nomination
in her favour in the service records, by moving
the competent Court of original civil jurisdiction
through a suit for appropriate relief. But,
respondent Nos.1, 2, 3 and 4 are not entitled to
deprive the first petitioner of the post retiral
benefits, regarding which there is a nomination
in her favour in Rashid's service records. The
fact that the nomination is there is admitted in
para No.5 of the counter affidavit filed by
respondent
Nos.1,
2
and
3.
Also,
the
information posted on the Manav Sampada
Sansadhan Prabandhan Pranali Portal carries a
nomination in favour of the first petitioner
relating to the General Provident Fund, Gratuity
and Pension in the event of Rashid's death and
shows her relationship to Rashid as his wife.
None of these postings on the official portal
11 All. Rafat Naaz & Anr. Vs. State of U.P. & Ors.
601
disclose the fifth respondent's name, even by
remote mention. (Para 20)

A mandamus is issued to respondent Nos.1 to 4
to ensure amongst themselves immediate
sanction and payment of family pension and
other benefits to the first petitioner.
A
mandamus is further issued to each of
respondents to ensure amongst themselves
consideration and decision of the second
petitioner's
claim
for
compassionate
appointment. (Para 21)

Writ Petition allowed. (E-4)

Precedent followed:

1. Banarsi Dass Vs Teeku Dutta (Mrs) & anr.,
(2005) 4 SCC 449 (Para 16)

2. C.K. Prahalada & ors. Vs St. of Karn. & ors.,
(2008) 15 SCC 577 (Para 17)

3. Shakti Yezdani & anr.Vs Jayanand Jayant
Salgaonkar & ors., (2024) 4 SCC 642 (Para 18)

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

1. The late Mohd. Rashid was
appointed an Assistant Teacher in the
Education Service of the State way back on
01.01.1990. He went on to hold the
position of the Officiating Principal,
Government
Inter
College,
Kaulsena,
Bulandshahr in course of time. He died in
harness on 14.07.2020. The late Mohd.
Rashid had a dependent family of five
members, to wit, his wife, Rafat Naaz
(petitioner No.1), three sons, namely,
Mohd. Rehan Khan, Mohd. Rakib Khan,
Mohd. Raza Khan (petitioner No.2) and a
daughter Rafia Naaz. Rashid's death left his
family, as they say, facing a huge financial
crisis. They are virtually on the verge of
starvation.

2. Rashid's widow, the first petitioner
made
an
application,
seeking
compassionate appointment for her son,
Mohd. Raza Khan, the second petitioner
under
the
Dying-in-Harness
Rules
applicable. The other dependents of the
deceased tendered their no objection
through an affidavit dated 18.05.2021. This
affidavit was submitted to the District
Inspector of Schools, Bulandshahr (for
short, 'the DIOS'). The District Magistrate,
Bulandshahr issued a certificate dated
30.04.2021, certifying the identities of the
family members of the deceased. The DIOS
sent a letter dated 25.05.2021 to the first
petitioner
saying
that
the
family
membership certificate issued by the
District
Magistrate
is
valid
for
an
entitlement of money up to the sum of
Rs.5000/- and, therefore, the first petitioner
has to get a succession certificate in her
favour from the Civil Court.

3. Anjum Parveen, who claimed
herself to be the second wife of the
deceased Rashid, addressed a letter dated
01.06.2021 to the District Magistrate,
Bulandshahr, saying that Rashid had
divorced the first petitioner in the year
2015. She was no longer his wife. Anjum,
who is impleaded as the fifth respondent to
the writ petition, requested the District
Magistrate to direct the DIOS to stop
proceeding with the first petitioner's claim
for release of family pension or any other
fund in her favour. The DIOS addressed a
letter dated 22.02.2021 to the Principal,
Government
Inter
College,
Kaulsena,
Bulandshahr, saying that no document was
submitted by the fifth respondent, the
deceased's alleged second wife to support
her claim. He further said that petitioner
No.1 also failed to produce a succession
certificate granted by the Civil Court. It
was further remarked in his letter by the
DIOS that in case within 30 days, no
evidence were produced, Rashid's first
wife, that is to say, the first petitioner
602 INDIAN LAW REPORTS ALLAHABAD SERIES
would have to be treated as his successor.
The
Principal
sent
a
letter
dated
24.02.2021, jointly addressed to the first
petitioner and the fifth respondent, Anjum,
saying that till date no document had been
submitted by either of them in support of
their respective cases. In the event no
document were received within 30 days,
further proceedings would have to be
undertaken, treating the first petitioner to
be Rashid's successor. A letter dated
06.07.2021 was then addressed by the
DIOS to the first petitioner, indicating the
estimated figures of post retiral benefits,
payable to her, including the family
pension.

4. The first petitioner appears to have
instituted a petition for the grant of a
succession certificate in the Court of the
Civil Judge (Sr. Div.), Bulandshahr, which
is numbered as Case No.83 of 2020. The
fifth respondent has contested the first
petitioner's case for grant of succession
certificate. It is the case of the first
petitioner that she is the lawfully wedded
wife of Rashid, who had no other wife,
besides her. He never divorced her nor he
ever married Anjum. He resided with the
first petitioner in the same house till his last
breath. The fifth respondent had ulterior
motive to come up with a baseless claim,
saying that she was Rashid's second wife.
The first petitioner has brought on record a
host of representations that Rashid made to
the Additional Director of Education, U.P.,
the Chief Secretary of the State, the Chief
Minister and the Director of Education,
dated 23.12.2016, 06.06.2018, 07.07.2018
and 02.08.2018, respectively, where he
requested for a transfer to his home district
as his wife, the first petitioner was
suffering from cancer and he had to take
care of her. It is then averred by the first
petitioner that she is suffering from cancer
for fifteen years past. It is also pleaded that
Rashid's profile, uploaded on the Human
Resource
Management
Portal
for
Government Employees (Manav Sampada
Sansadhan Prabandhan Pranali Ke Liye
Kaarmik
Vivaran),
shows
the
first
petitioner in column No.90 as Rashid's
nominee to receive the proceeds of his
GPF. She is described as his wife in the
relationship column. Likewise, in column
Nos.92 and 93, the person entitled to
receive pension and gratuity, if the
employee was alive, is Rashid himself and
in the event of his death, it is the first
petitioner, shown to be his wife. Both the
post retiral benefits, that is to say, pension
and gratuity have been indicated to be
payable to the first petitioner in its entirety
in the last column. It must be remarked that
a photostat copy of the said document is on
record.

5. There are then pleadings to the
effect that the first petitioner and the
deceased's dependents are going without
any family pension and other funds for
nearly four years past. They are unable to
pay installments of the housing loan, the
deceased had raised from the LIC Housing
Finance Limited. The first petitioner is
unable to pay her medical bills for the
treatment of her cancer. The family are
going through extreme financial hardship.
The inaction of the respondents in delaying
disbursement of the deceased's death-cumretirement benefits have been castigated as
serious infraction of the first petitioner's
right to life and it is also said that the
respondents have no right to ask the first
petitioner
to
produce
a
succession
certificate, which the service rules do not
mandate.

6. So far as the case of the second
petitioner
is
concerned,
he
claims
11 All. Rafat Naaz & Anr. Vs. State of U.P. & Ors.
603
compassionate appointment under the Uttar
Pradesh Recruitment of Dependants of
Government Servants Dying in Harness
Rules, 1974 (for short, 'the Rules of 1974'),
his father having died while in service. It is
pleaded that the second petitioner is
eligible for appointment on compassionate
ground. He has made an application
through proper channel within time. The
respondents have been loath to consider the
second petitioner's claim and their inaction
calls for a direction. The family are
struggling to meet their basic needs and
placed in dire financial straits.

7. In the face of these facts, this writ
petition
has
been
instituted
by
the
petitioners on two separate causes of action
and for different reliefs, both arising from
Rashid's untimely demise. While the first
petitioner seeks a mandamus to the
respondents to pay her the death-cumretirement benefits admissible under rules
by virtue of being Rashid's widow, the
second petitioner seeks a direction to
consider his claim for appointment to a
suitable post under the Rules of 1974.

8. When this writ petition came up for
admission on 22.04.2024, we directed the
petitioners to implead Anjum as a partyrespondent to the petition.

9. Notice was issued to respondent
Nos.1 to 4 and also to Anjum. The newly
added respondent was directed to be served
by registered post. As it later transpired,
she could not be served through registered
post and the cover was returned with a
remark dated 29.04.2024 that reads:
Incomplete address. Therefore, returned
(translated from Hindi into English). This
Court then directed service of notice upon
the fifth respondent through the learned
Civil Judge (Sr. Div.), Aligarh vide order
dated 29.04.2024. The learned Civil Judge
(Sr. Div.), Aligarh submitted a report to the
Registrar (Compliance) through the learned
District Judge, Aligarh dated 09.05.2024,
saying that the Process Server, who went to
serve the fifth respondent, had reported that
on 03.05.2024, when he went to effect
service, he searched Anjum Parveen
daughter
of
Mohd.
Sharif,
but
her
whereabouts could not be known. He,
therefore, returned the process unserved.
The Civil Judge too failed to secure service
upon the fifth respondent. This Court vide
order dated 09.05.2024 expressed our
disapproval
of
the
Process
Serving
Agency's slackness and issued notice to the
fifth respondent to appear in person,
directing the notice to be served upon her
through the Chief Judicial Magistrate. The
Senior Superintendent of Police was
ordered to ensure that the process routed
through the Chief Judicial Magistrate was
duly served. The learned Chief Judicial
Magistrate, Aligarh vide his report dated
16.05.2024 reported service upon the fifth
respondent at the same address, where the
Postal Agency and the Civil Court's
Process Serving Agencies had failed with
reports
of
'incomplete
address'
or
'untraceable
whereabouts'.
We
have
incorporated these details in order to
emphasize the fact, though very well
known, that one of the biggest challenges
in the commencement of any legal
proceedings before any Court, particularly
when exercising civil
jurisdiction or
something akin to it, is effecting service
upon the defendant/ respondent/ opposite
party. And, even if that is accomplished,
securing the said party's presence or
representation
in
Court
still
poses
difficulties. It is one of the biggest causes
for all the Court's delays at the incipient
stages of any civil proceeding. We must
emphasize that the Process Serving Agency
604 INDIAN LAW REPORTS ALLAHABAD SERIES
of the District Courts, who are sufficiently
staffed by trained men, need to be
galvanized for effective service and Postal
Agencies warned about not casually
dealing with Court processes.

10. On the 17th of May, 2024, the fifth
respondent
appeared
in
person
and
instructed Mr. Shishir Kumar Tiwari,
Advocate to appear for her. Mr. Tiwari
identified her on the basis of papers
produced in his chambers. Her personal
appearance was exempted. He sought a
short time to obtain moreful instructions on
that day. On 24.05.2024, to which the cause
was next adjourned, Mr. Shishir Kumar
Tiwari did not appear, because the fifth
respondent had changed Counsel. She had
now instructed Mr. Rakesh Kumar Yadav
to appear on her behalf. He sought further
time to file a counter affidavit. This too is a
practice prevalent amongst litigants in the
State, particularly in the District Courts,
where
adjournments
are
secured
by
repetitively instructing new Counsel and
withdrawing instructions from those earlier
instructed. In this matter, this malpractice
was brought to this Court, since evading
the Court's process for a long time could
not be managed. A counter affidavit on
behalf of respondent Nos.1, 2 and 3 was
filed on 09.05.2024, to which the petitioner
filed a rejoinder dated 31.05.2024. A
counter on behalf of respondent No.5 was
filed on 29.05.2024 after service upon the
petitioners. On 31.05.2024, the parties
having exchanged affidavits, the petition
was admitted to hearing, which proceeded
forthwith. Judgment was reserved.

11. Heard Mr. Siddharth Agrawal,
learned Counsel for the petitioner, Mr.
Pawan
Kumar
Srivastava,
Advocate
holding brief of Mr. Rakesh Kumar Yadav,
learned Counsel appearing on behalf of
respondent No.5 and Mr. R.P. Dubey,
learned Additional Chief Standing Counsel
appearing on behalf of respondent Nos.1, 2
and 3. No one appears on behalf of
respondent No.4.

12. So far as the case of the second
petitioner is concerned, the relief that he
seeks is simple, and, ideally speaking,
should not have been combined in one
petition with the first petitioner, who seeks
an absolutely different relief. The second
petitioner
claims
compassionate
appointment under the Rules of 1974 on
account of his father's death in harness. He
prays that a mandamus be issued to the
respondents to consider his claim under the
Rules of 1974 as he has applied promptly
and within time. He says that he is entitled.
There is no contest apparently to the second
petitioner's claim by the fifth respondent
either. In the circumstances, there is no
impediment
whatsoever
in
issuing
a
direction to the DIOS to consider the
second petitioner's claim, either himself if
he be empowered, or cause it to be laid
before the competent Authority, who would
be obliged to consider and decide the same
in accordance with the second petitioner's
entitlement under the Rules of 1974, or
whatever other rules be applicable.

13. This brings the principal issue to
the fore, that is to say, the first petitioner's
claim to the death-cum-retirement benefits
due on account of the late Rashid's service.
The fifth respondent has contested the first
petitioner's claim, saying that Rashid and
the first petitioner were divorced on
19.12.2015 and the fifth respondent and
Rashid married according to Muslim rites
on 01.05.2016. She has annexed a copy of
the Nikahnama to the counter affidavit as
Annexure No. CA-1. It is also said by the
fifth respondent that she has not only
11 All. Rafat Naaz & Anr. Vs. State of U.P. & Ors.
605
appeared in the petition for grant of a
succession certificate instituted by the first
petitioner before the Civil Judge (Sr. Div.),
Bulandshahr, but filed her counter-claim on
16.09.2022. She has asserted herself to be
the lawfully wedded wife of the late
Rashid, claiming a marriage for herself,
that was solemnized after the deceased's
divorce with the first petitioner. The fifth
respondent has asserted that she has no
children and lives by herself. She has no
source of income of her own. She is
entitled to receive the General Provident
Fund, Group Insurance, Gratuity and
Pension, and not the first petitioner, as she
is a divorced wife of the deceased. The fifth
respondent has also produced and annexed
to the counter affidavit a photostat copy of
the certificate dated 28.10.2022 from the
Village
Pradhan,
Gram
Panchayat,
Hathmabad,
Block
and
District
Bulandshahr, saying that Rashid, who was
the Headmaster of the Government Inter
College, Kaulsena, lived on rent in the
house of Prabha Gupta daughter of Ved
Prakash Gupta, because the College was
close-by, located at a distance of one
kilometer. It is also said that the fifth
respondent, Smt. Anjum wife of Rashid
and Rashid would stay happily together in
the said house. The Village Pradhan has
said that she knew both the husband and
wife very well and so did other natives of
the village. The certificate is also signed by
some other members of the Gram Sabha.

14. The stand taken in the counter
affidavit filed by respondent No.1, 2 and 3
is that in the late Rashid's GPF Passbook,
the name of his wife recorded is that of the
first petitioner. It is then emphasized that
on 11.09.2020 when the matter relating to
family pension and retiral dues was sent for
verification to the Finance and Accounts
Officer, Secondary Education in the office
of the DIOS, he scrutinized the matter and
by his report dated 11.09.2020 opined that
the parties be required to submit a
succession certificate granted by the Court
of competent jurisdiction. On the basis of
the report of the Finance and Accounts
Officer, the DIOS vide letter dated
16.09.2020 directed the Principal of the
Institution to obtain a succession certificate
from both the adversely claiming parties. In
compliance with the letter of the DIOS, the
Principal of the Institution addressed a
letter dated 20.09.2020, both to the first
petitioner and the fifth respondent to
submit certificates of succession obtained
from the Court of competent jurisdiction.
The further plea taken by the DIOS is that
none of the parties have submitted a
succession certificate from the Court of
competent jurisdiction, as a result of which,
none of them could be given family
pension and other death-cum-retirement
benefits, such as, G.P.F., Gratuity, Group
Insurance due on account of the deceased,
Mohd. Rashid's services.

15. Upon a careful consideration of the
matter, what this Court finds is that while
neither we nor the respondent Education
Authorities, who hold funds of the
deceased in trust for his lawful successors
can decide, who that successor is, as
between the first petitioner and the fifth
respondent, the settled position of the law
is that these benefits must be given to the
nominee in the service records. The
insistence by the DIOS and the other
Education
Authorities
upon
the
first
petitioner or the fifth respondent securing a
succession certificate is of no consequence.
A succession certificate even if granted in
favour of the first petitioner, or for that
matter, the fifth respondent does not create
any beneficial interest in the funds or
moneys paid to either of them by the
606 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent
Authorities.
A
succession
certificate gives valid discharge to a third
party, who holds funds for another, no
more in the mortal world, by certifying the
person entitled to receive the funds or
moneys or other movable properties owned
by the deceased. It does not declare title for
the person in whose favour the succession
certificate is issued. The holder of a
beneficial interest in movable property or
money
received
under
a
succession
certificate would have to establish it, if he
is a person, other than the holder of the
certificate, by establishing that right in a
duly constituted suit. A petition for
succession is by no means a suit; nor the
succession certificate a decree, declaring
title or beneficial interest in favour of the
one, who holds it.

16. In this connection, reference may
be made to Banarsi Dass v. Teeku Dutta
(Mrs) and another, (2005) 4 SCC 449.
The question involved in the appeal by
special leave in Banarsi Dass (supra)
before their Lordships was if a DNA Test
could be directed in proceedings for grant
of a succession certificate under Section
372 of the Indian Succession Act. Dwelling
upon the nature of the right conferred by a
succession certificate, it was held:

"14. The main object of a
succession
certificate
is
to
facilitate
collection of debts on succession and afford
protection to the parties paying debts to the
representatives of deceased persons. All
that the succession certificate purports to
do is to facilitate the collection of debts, to
regulate the administration of succession
and to protect persons who deal with the
alleged representatives of the deceased
persons. Such a certificate does not give
any general power of administration on the
estate of the deceased. The grant of a
certificate does not establish title of the
grantee as the heir of the deceased. A
succession certificate is intended as noted
above to protect the debtors, which means
that where a debtor of a deceased person
either voluntarily pays his debt to a person
holding a certificate under the Act, or is
compelled by the decree of a court to pay it
to the person, he is lawfully discharged.
The grant of a certificate does not establish
a title of the grantee as the heir of the
deceased, but only furnishes him with
authority to collect his debts and allows the
debtors to make payments to him without
incurring any risk. In order to succeed in
the succession application the applicant has
to adduce cogent and credible evidence in
support of the application. The respondents,
if they so choose, can also adduce evidence
to oppose grant of succession certificate.
The trial court erroneously held that the
documents produced by the respondents
were not sufficient or relevant for the
purpose of adjudication and DNA test was
conclusive. This is not a correct view. It is
for the parties to place evidence in support
of their respective claims and establish
their stands. DNA test is not to be directed
as a matter of routine and only in deserving
cases such a direction can be given, as was
noted in Goutam Kundu case [(1993) 3
SCC 418 : 1993 SCC (Cri) 928] . Present
case does not fall in that category. The
High Court's judgment does not suffer from
any infirmity. We, therefore, uphold it. It is
made clear that we have not expressed any
opinion on the merits of the case relating to
succession application."
(emphasis by Court)

17. To the same effect are remarks of
the Supreme Court in C.K. Prahalada and
others v. State of Karnataka and others,
(2008) 15 SCC 577. In C.K. Prahalada
(supra), it has been held:
11 All. Rafat Naaz & Anr. Vs. State of U.P. & Ors.
607

"17. A succession certificate is
granted for a limited purpose. A court
granting a succession certificate does not
decide the question of title. A nominee or
holder of succession certificate has a duty
to hand over the property to the person who
has a legal title thereto. By obtaining a
succession certificate alone, a person does
not become the owner of the property."

18. These decisions more or less spell
out the nature of rights created in favour of
the recipient of a succession certificate
under Section 372 of the Indian Succession
Act. So far as the rights created by
nomination in favour of a nominee are
concerned, these have been considered
under various statutes by the Supreme
Court in Shakti Yezdani and another v.
Jayanand Jayant Salgaonkar and others,
(2024) 4 SCC 642. In Shakti Yezdani
(supra), the following remarks of their
Lordships elucidate the matter:

"40. In an illuminating list of
precedents, this Court as well as several
High Courts have dealt with the concept of
"nomination" under legislations like the
Government
Savings
Certificates
Act,
1959, the Banking Regulation Act, 1949,
the
Life
Insurance
Act,
1939
(quaereInsurance Act, 1938) and the
Employees'
Provident
Fund
and
Miscellaneous Provisions Act, 1952. It
would be apposite to refer to what the
Court said on nomination, in reference to
these legislations:

Case Law/Precedent Held
Sarbati Devi v. Usha
Devi [Sarbati Devi
v. Usha Devi, (1984)
1 SCC 424]

Nomination
under
Section 39 of the
Insurance Act, 1938
is subject to the
claim of heirs of the
assured under the
law of succession.
Nozer
Gustad
Commissariat
v.
Central
Bank
of
India [Nozer Gustad
Commissariat
v.
Central
Bank
of
India,
1992
SCC
OnLine Bom 481 :
(1993) 1 Mah LJ
228]

Nomination
under
Section 10(2) of the
EPF
&
Miscellaneous
Provisions
Act,
1952
cannot
be
made in favour of a
non-family person.
Relied upon Sarbati
Devi [Sarbati Devi
v.
Usha
Devi,
(1984) 1 SCC 424]
to state that the
principles
therein
were applicable to
the
Employees
Provident
Funds
Act as well and not
merely restricted to
the Insurance Act.
Vishin
N.
Khanchandani
v.
Vidya Lachmandas
Khanchandani
[Vishin
N.
Khanchandani
v.
Vidya Lachmandas
Khanchandani,
(2000) 6 SCC 724]

Nominee entitled to
receive the sum due
on
the
savings
certificate
under
Section 6(1) of the
Govt.
Savings
Certificates
Act,
1959, but cannot
utilise it. In fact, the
nominee may retain
the same for those
entitled to it under
the relevant law of
succession.
Ram
Chander
Talwar v. Devender
Kumar Talwar [Ram
Chander Talwar v.
Devender
Kumar
Talwar, (2010) 10
SCC 671 : (2010) 4
SCC (Civ) 313]

Nomination
made
under
the
provisions
of
Section 45-ZA of
the
Banking
Regulation
Act,
1949 entitled the
nominee to receive
the deposit amount
on the death of the
608 INDIAN LAW REPORTS ALLAHABAD SERIES
depositor.

41. A consistent view appears to
have been taken by the courts, while
interpreting the related provisions of
nomination under different statutes. It is
clear from the referred judgments that the
nomination so made would not lead to the
nominee attaining absolute title over the
subject property for which such nomination
was made. In other words, the usual mode
of succession is not to be impacted by such
nomination. The legal heirs therefore have
not
been
excluded
by
virtue
of
nomination."

19. In substance, a nomination in the
service records and a succession certificate
granted by the Court under Section 372 of
the Indian Succession Act are at par;
neither confers any beneficial interest upon
the recipient of the proceeds. As already
said, a person who asserts title or beneficial
interest in moneys or movable property
received by another under a succession
certificate, or for that matter, a nomination
can always institute a suit for declaration or
other appropriate consequential relief in
order to establish his beneficial interest or
entitlement. At the same time, once there is
a nomination left by the deceased in his
service records in favour of a person, who
is his wife, there is no reason for the
respondents or any employer to withhold
payment of the post retiral benefits in
favour of the nominee in the service
records. It is for the other person, not so
nominated, to establish his/ her claim
through suit. As already said, here the fifth
respondent is certainly not a nominee of the
deceased in any of the service records. Her
name does not appear in those records as
the deceased's wife. Before this Court she
has filed a photostat copy of a Nikahnama
dated 01.05.2016 and a photostat copy of
the certificate issued by the Gram Pradhan,
without occasion, about the deceased and
the fifth respondent living together as man
and wife.

20. So far as divorce between the first
petitioner and the deceased goes, there is
not a shred of evidence produced by the
fifth respondent. The evidence about the
fifth respondent's marriage to the deceased
at this stage is not of a kind, upon which
this Court in the exercise of writ
jurisdiction may act to accept her case even
prima facie, defeating the first petitioner's
claim founded on a nomination entered in
the service records of the deceased. We do
not wish to say that the fifth respondent
cannot establish her claim at all to the
whole or a share of the moneys that the first
petitioner would be entitled to receive on
account of the nomination in her favour in
the service records. She can do that by
moving the competent Court of original
civil jurisdiction through a suit for
appropriate relief. She can also seek
appropriate interim injunctions/ interim
orders. But, so far as respondent Nos.1, 2, 3
and 4 are concerned, they are not entitled to
deprive the first petitioner of the post retiral
benefits, regarding which there is a
nomination in her favour in Rashid's
service
records.
The
fact
that
the
nomination
is
there
is
admitted
in
paragraph No.5 of the counter affidavit
filed by respondent Nos.1, 2 and 3. Also,
the information posted on the Manav
Sampada Sansadhan Prabandhan Pranali
Portal carries a nomination in favour of the
first petitioner relating to the General
Provident Fund, Gratuity and Pension in
the event of Rashid's death and shows her
relationship to Rashid as his wife. None of
these postings on the official portal disclose
the fifth respondent's name, even by remote
mention.
11 All. Punita Bhatt @ Punita Dhawan Vs. B.S.N.L. New Delhi & Ors.
609

21. In the circumstances, this writ
petition succeeds and is allowed. A
mandamus is issued to respondent Nos.1,
2, 3 and 4 to ensure amongst themselves
immediate sanction and payment of
family pension to the first petitioner,
including
arrears,
General
Provident
Fund, Gratuity, Dues on account of Leave
Encashment, Group Insurance and any
other
death-cum-retirement
benefit,
admissible under the Rules. A mandamus
is further issued to each of respondent
Nos.1, 2, 3 and 4 to ensure amongst
themselves consideration and decision of
the
second
petitioner's
claim
for
compassionate
appointment
in
accordance with rules within a period of
eight weeks of the receipt of a copy of
this order.

22. Let a copy of this judgment be
communicated to the Additional Chief
Secretary,
Ministry
of
Education,
Government of U.P., Lucknow through
Civil Judge (Sr. Div.), Lucknow and the
District Inspector of Schools, Bulandshahr,
the Principal, Government Inter College,
Kaulsena, District Bulandshahr through
Civil Judge (Sr. Div.), Bulandshahr by the
Registrar (Compliance).
----------
(2024) 11 ILRA 609
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.11.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ A No. 7862 of 2023

Punita Bhatt @ Punita Dhawan
 ...Petitioner
Versus
B.S.N.L. New Delhi & Ors. ...Respondents
Counsel for the Petitioner:
Pankaj Kumar Tripathi, Bhavini Upadhyay,
Sandhya Dubey

Counsel for the Respondents:
Pratul Kumar Srivastava, Gyanendra Singh
Sikarwar

A.
Service
Law
-
Compassionate
Appointment - Constitution of India,1950
- Articles 14, 15, 16 - Uttar Pradesh
Recruitment
of
Dependents
of
Government Servant (Dying in Harness)
Rules, 1974 - Rule 2(c) - Non- inclusion of
a "married daughter" in the definition of a
"family", Rule 2 (c) of the Rules, 1974,
and in the note below the regulation 104
of the 1975 Regulations, thereby denying
her the opportunity of being considered
for
compassionate
appointment,
even
though,
she
was
dependent
on
the
government servant at the time of his
death, is discriminatory and is in violation
of Article 14, 15 and 16 in Part III of the
Constitution of India and as such read
down the said definition of "family" in
Rule 2 (c) of the Rules, 1974, and in the
note below the regulation 104 of the 1975
Regulations, to save it from being held
unconstitutional. (Para 27)

High Courts have given purposive and
expansive interpretation to the meaning
of the term 'family member' and included
even
married
daughters
within
the
meaning of family of dependent. If a
married son is eligible for compassionate
appointment if he was dependent upon his
father at the time of his death unless he
had his own means of livelihood, then,
there is no reason as to why a married
daughter who is similarly placed, under
the aforesaid scheme. Any distinction in
this
regard
would
be
without
any
reasonable basis and without any link to
the
object
sought
to
be
achieved,
therefore, it would be discriminatory and
hit by Article 14 of the Constitution. (Para
29, 31)

A scheme dated 09.10.1998 has been adopted
by BSNL, in order to bring uniformity and