# Rajesh Kumar v. State of U.P. & Ors

- **Citation:** (2022) 1 ILRA 674
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-18
- **Case number:** Writ A No. 14216 of 2021
- **Bench:** Surya Prakash Kesarwani, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-v-state-of-u-p-ors-47494
- **Pages:** 7

## Headnote

A. Service Law - Pension - Constitutional
Validity - GO dated 08.12.2008: Clause
7(3)(gha) - Entitlement of life time family
pension is neither an unfettered nor a
fundamental
right,
as
the
same
is
governed by the statutory enactments so
issued from time to time and in vogue.
Nobody has right to receive family pension
except otherwise provided by the Rules and the
Schemes in that regard. (Para 12, 22)

B. Article 15(1) of the Constitution of
India is not attracted in the present case
and there is no violation of the same as the
Government Order dated 8.12.2008 does not
discriminate between same class of persons.
Instead it protects interest of the petitioner to
get family pension till the age of 25 years. (Para
18)

C. Concept of Valid Classification - Valid
discrimination
-
Article
16
of
the
Constitution
of
India
permits
a
valid
classification. A valid classification is based on a
just objective. A classification to be valid must
necessarily satisfy two tests. Firstly,
the
distinguishing rationale has to be based on a
just objective. And secondly, the choice of
differentiating one set of persons from another
1 All. Rajesh Kumar Vs. State of U.P. & Ors.
675
must have a reasonable nexus to the objective
sought to be achieved. Legalistically, the test for
a valid classification may be summarized as, a
distinction based on a classification founded on
an intelligible differentia, which has a rational
relationship with the object sought to be
achieved. (Para 23)

Classification made in the Government Order
dated 8.12.2008 is a valid classification founded
on an intelligible differentia which has a rational
relationship with the object sought to be
achieved. (Para 24)

There is nothing on record to suggest as to
what is the educational qualification of the
petitioner and whether he is working anywhere
or not. It is hardly inconceivable that a person
(male) who is aged about 46 years is not
working anywhere to sustain himself and rather
dependent upon the family pension of the
deceased (mother). (Para 26)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

674 INDIAN LAW REPORTS ALLAHABAD SERIES
ignorance, illiteracy, in articulation or
poverty, are unable to approach the court,
and a person, who has no personal agenda,
or object, in relation to which, he can grind
his own axe, approaches the court, then the
court may examine the issue and in
exceptional circumstances, even if his
bonafides are doubted, but the issue raised
by him, in the opinion of the court, requires
consideration, the court may proceed suomotu, in such respect."

14. This Court has gone through the
entire petition and no such averment has
been made anywhere in the entire petition
that the actual aggrieved persons because
of ignorance, illiteracy, in articulation or
poverty are unable to approach the Court
and in those circumstances the petitioner
has approached this Court. Thus, the
present
case
would
not
stand
the
exceptional circumstances as have been
spelt out by the Apex Court in the cases of
Ayaaubkhan Noorkhan Pathan (supra)
and Dharm Raj (supra).

15. Accordingly, we find that the
petitioner prima facie has no locus to file
the present writ petition challenging the
appointment of respondent no. 3, who is
working on the post of C.T.Grade Teacher.
The petitioner is also not an aggrieved
person nor he is complainant nor has filed
any
complaint
before
the
authority
concerned challenging the appointment of
respondent no.3. The objection raised by
the learned Standing counsel appears to be
justified regarding locus of the petitioner.

16. Accordingly, keeping in view the
aforesaid discussion, the writ petition is
dismissed.
----------
(2022)01ILR A674
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ A No. 14216 of 2021

Rajesh Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Akhilesh Kumar Pandey, Sri Punya Sheel
Pandey

Counsel for the Respondents:
C.S.C.,

A. Service Law - Pension - Constitutional
Validity - GO dated 08.12.2008: Clause
7(3)(gha) - Entitlement of life time family
pension is neither an unfettered nor a
fundamental
right,
as
the
same
is
governed by the statutory enactments so
issued from time to time and in vogue.
Nobody has right to receive family pension
except otherwise provided by the Rules and the
Schemes in that regard. (Para 12, 22)

B. Article 15(1) of the Constitution of
India is not attracted in the present case
and there is no violation of the same as the
Government Order dated 8.12.2008 does not
discriminate between same class of persons.
Instead it protects interest of the petitioner to
get family pension till the age of 25 years. (Para
18)

C. Concept of Valid Classification - Valid
discrimination
-
Article
16
of
the
Constitution
of
India
permits
a
valid
classification. A valid classification is based on a
just objective. A classification to be valid must
necessarily satisfy two tests. Firstly,
the
distinguishing rationale has to be based on a
just objective. And secondly, the choice of
differentiating one set of persons from another
1 All. Rajesh Kumar Vs. State of U.P. & Ors.
675
must have a reasonable nexus to the objective
sought to be achieved. Legalistically, the test for
a valid classification may be summarized as, a
distinction based on a classification founded on
an intelligible differentia, which has a rational
relationship with the object sought to be
achieved. (Para 23)

Classification made in the Government Order
dated 8.12.2008 is a valid classification founded
on an intelligible differentia which has a rational
relationship with the object sought to be
achieved. (Para 24)

There is nothing on record to suggest as to
what is the educational qualification of the
petitioner and whether he is working anywhere
or not. It is hardly inconceivable that a person
(male) who is aged about 46 years is not
working anywhere to sustain himself and rather
dependent upon the family pension of the
deceased (mother). (Para 26)

Writ petition dismissed. (E-4)

Precedent followed:

1. Smt. Violet Issac & ors. Vs U.O.I. & ors. 1991
(62) FLR (Para 19)

2. Nitu Vs Sheela Rani & ors. (2016) 16 SCC 229
(Para 20)

3.
Kallakkurichi
Taluk
Retired
Officials
Association, Tamil Nadu & ors. Vs State of Tamil
Nadu (2013) 2 SCC 772 (Para 22)

Present petition challenges order dated
16.03.2021, passed by Executive Engineer
P.W.D. Etah.

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Vikas Budhwar, J.)

1. The petitioner herein has filed the
present writ petition seeking following
reliefs:-

"1. Issue a writ, order or
direction in the nature of mandamus by
declaring the Constitutional Validity of rule
7(3) 1⁄4Hk1⁄2 of the Government Order mRrj
izns'k 'kklu] foRr 1⁄4lkekU;1⁄2 vuqHkkx&3]
lk0&3&1508@nl&2008&308&97
y[kuÅ
fnukad 08.12.2008 of U.P. retirement
benefit rules 1967 as well as new Family
Pension Scheme 1965 to declare the part of
G.O. bearig sentence ÞvkfJr ekrk&firk
vfookfgr@rykd'kqnk@fo/kok
iq=h
dh
ikfjokfjd isa'ku thou i;ZUr feysxhAß to
declare it ultra virus as against the
provisions
of
Article
15(1)
of
the
Constitution of India as ultra virus.

2. Issue a writ, order or direction
in the nature of Certiorari quashing the
impugned order dated 16.3.2021 passed by
the Respondent No.2 upon the complaint
no.40020121002680
preferred
by
the
petitioner."

2. We have heard Sri Punya Sheel
Pandey, learned counsel for the petitioner
and Sri Girish Vishwakarma, learned
Standing Counsel for the State-respondents.
With the consent of the parties the present
writ petition is being disposed of at the
admission stage itself.

3. Admittedly as per case set out by
the petitioner in the present writ petition,
his father late Madan Mohan (since
deceased) was an employee of respondent
no.2 Public Works Department (In short
P.W.D.) who expired. The mother of the
petitioner Smt. Vidya Devi was conferred
with the benefit of family pension and she
was continuously paid family pension till
her death i.e. 18.12.2020. Consequent to
the death of his mother, the petitioner is
before this Court seeking relief for
declaring the part of the Government Order
676 INDIAN LAW REPORTS ALLAHABAD SERIES
being Clause 7(3) (kha) (gha) bearing No.
lk0&3&1508@nl&2008&308&97
dated
8.12.2008 to be violative of Article 15 of
the Constitution of India as it creates a
discrimination
between
son/daughter
(including
widow
daughter)
married/remarried or on attainment of age
of 25 years vis-a-vis the dependent father,
mother,
unmarried/divorcee/widow
daughter, who have been made entitled to
life time family pension.

4. The Government Order No.
lk0&3&1508@nl&2008&308&97
dated
8.12.2008 has been filed as annexure-1 at
page 13 of the paper book. Its alleged
offending Clause 7(3) (gha) is quoted
below:-

7-(3) ikfjokfjd isa'ku dh vuqeU;rk gsrq
ifjokj dks fuEu izdkj oxhZd`r fd;k tk;sxkA

oxZ&A

1⁄4d1⁄2 fo/kok@fo/kqj] vtUe vFkok iquZfookg]
tks Hkh igys gks]

1⁄4[k1⁄2 iq=@iq=h 1⁄4fo/kok iq=h lfgr1⁄2 dks
fookg@iquZfookg vFkok 25 o"kZ dh vk;q rd vFkok
thfodksiktZu dh frfFk] tks Hkh igys gks] rdA

oxZ&AA

1⁄4x1⁄2 vfookfgr@fo/kok@rykd'kqnk iq=h]
tks mijksDr oxZ&1 ls vkPNkfnr ugha gS] dks
fookg@iquZfookg rd vFkok thfodksiktZu dh frfFk
vFkok e`R;q dh frfFk rd tks Hkh igys gks]

Þ1⁄4Ä1⁄2 ,sls ekrk&firk tks ljdkjh lsod ij
mlds thoudky esa iw.kZr% vkfJr jgs gks rFkk e`r
ljdkjh lsod us vius ihNs dksbZ fo/kok@fo/kqj vFkok
cPps ugha gksrh gSA

vkfJr
ekrk&firk
vfookfgr@rykd'kqnk@fo/kok iq=h dks ikfjokfjd
isa'ku thou i;ZUr feysxhAß

5. After going through the pleadings
and arguments canvassed by the petitioner
and the Standing Counsel, who appears for
respondents No. 1 to 3, it is clear that the
State Government has issued Government
Order lk0&3&1508@nl &2008&308&97
dated
8.12.2008
wherein
provisions
relating to the grant of family pension has
been provided classifying the dependents,
who are conferred with the benefit of
family pension.

6. Learned counsel for the petitioner
has argued that the Government Order
dated 8.12.2008, as referred to above,
creates discrimination and it is in violation
of Article 15 of the Constitution of India as
the benefit of life time family pension has
been made admissible to dependents i.e.
mother,
father,
unmarried/divorcee
daughter/widow daughter but the same has
been denied to son/daughter (inclusive of
widow daughter) married/remarried or
attainment of age of 25 years or till survival
whichever is earlier.

7. In nutshell, what is being sought to
be argued by the learned counsel for the
petitioner is that the petitioner being the
son of the deceased employee is entitled to
the benefit of family pension for life time
and same cannot be restricted till the
attainment of the age of 25 years.

8. Per contra, learned Standing
Counsel has argued that the Government
Order dated 8.12.2008, as referred to
above, in so far as it pertains to Clause-7(3)
as a whole, is intra vires and it needs no
interference as no individual has an
unfettered right to get family pension till
his death as the same is to be governed by
the statutory enactments issued from time
to time and in vogue.
1 All. Rajesh Kumar Vs. State of U.P. & Ors.
677

9. Learned Standing Counsel has also
drawn attention of this Court at page 46 of
the paper book being an order dated
16.3.2021 which has also been challenged
whereby the claim set up by the petitioner
for grant of life time family pension has
been denied on the ground that the
petitioner at the time of passing of the order
dated 16.3.2021 was aged about 45 years.

10. Having gone through the pleadings
and the arguments canvassed by the learned
counsel for the parties, it is undisputed that the
grant of family pension is to be regulated and
governed by the statutory enactments. So far
as Government Order dated 8.12.2008 is
concerned, it admittedly provides that in case
of a son/daughter (including widow daughter)
after marriage/remarriage, they are entitled to
grant of family pension till attaining the age of
25 years or till survival whichever is earlier.
They cannot be placed on same footing vis-avis
dependents
being
father,
mother,
unmarried daughter/widow daughter, as they
form a separate class and merely because they
are being granted the benefit of life time
family pension that cannot be a ground to
grant life time family pension to the petitioner.

11. The basic idea of grant of life time
family pension is to provide immediate
relief to the widow and children by way of
compensation.

12. As a matter of fact, entitlement of
life time family pension is neither an
unfettered nor a fundamental right, as the
same
is
governed
by
the
statutory
enactments so issued from time to time and
in vogue.

13. Counsel for the petitioner has
drawn our attention towards paragraph 11
of the writ petition which reads as under:-

"11. That the provisions of
Pension Scheme is discriminatory on the
ground of Sex (gender) as only unmarried
daughter is entitled to get the family
pension life time on other hand there is
discrimination with male who are also
unmarried and depend upon the Family
pension which is against the provisions of
Article 15(1) of the Constitution of India."

14. Thus, the challenge made to the
offending provisions of the Government
Order dated 8.12.2008 is with regard to the
fact that the same is in violation of Article
15(1) of the Constitution of India as the
same is discriminatory on the ground of
Sex (gender) that only unmarried daughter
is entitled to get life time family pension.
On the other hand, the petitioner being
male and also unmarried and dependent
upon the family pension, is being denied
family pension after his attainment of age
of 25 years.

15. Article 15(1) of the Constitution
of India is reproduced herein-under:-

"15. Prohibition of discrimination
on grounds of religion, race, caste, sex or
place of birth-(1) The State shall not
discriminate against any citizen on grounds
only of religion, race, caste, sex, place of
birth or any of them."

16. Though the argument raised by
the counsel for the petitioner appears to be
attractive but the same is liable to be
rejected at the threshold as the petitioner
being the son of the dependent forms a
different class vis-a-vis the father, mother,
married/divorcee/widow
daughter.
The
Rule enacting authority have themselves
protected interest of the son of the
dependent of a deceased employee by
678 INDIAN LAW REPORTS ALLAHABAD SERIES
granting benefit of family pension till the
attainment of 25 years.

17. The logic behind the grant of
family pension to a male (son) till the age
of 25 years or till his survival whichever is
earlier, is just in order to provide him
financial support by way of compensation
for untimely death of the deceased
employee and to provide an environment so
as to sustain him during interregnum period
when they become major but also get
educated to seek employment in order to
excel in life.

18. Article 15(1) of the Constitution
of India is not attracted in the present case
and there is no violation of the same as the
Government Order dated 8.12.2008 does
not discriminate between same class of
persons. Instead it protects interest of the
petitioner to get family pension till the age
of 25 years.

19. The Hon'ble Apex Court had the
occasion to consider the issue with regard
to the entitlement of family pension in the
case of Smt. Violet Issac and others Vs.
Union of India and others 1991(62) FLR
and observed as under:-

"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, and
unmarried daughter is also entitled to
family pension till she attains the age of 25
years or gets married, which ever 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 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 monitory benefit on the
wife and children of the deceased Railway
employee, but the employee as no title to
it."

20. Recently, the Apex Court in the
case of Nitu Vs. Sheela Rani and others
(2016) 16 SCC 229 (in para 17) has
observed, 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 the case of Violet Issaac (Smt.) v. Union
of India (1991) 1 SCC 725 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
1 All. Rajesh Kumar Vs. State of U.P. & Ors.
679
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.

21. The law so enumerated by the
Supreme Court in the case of Smt. Violet
Issac and Nitu (Supra) clearly mandates
that
no
other
person
except
those
designated under the Rules/Scheme are
entitled to receive family pension.

22. Thus, the net logical conclusion
which emerges from the proposition of law
as mandated by the Hon'ble Supreme
Court, it is clear that nobody has right to
receive family pension except otherwise
provided by the Rules and the Schemes in
that regard.

23. The Apex Court in the case of
Kallakkurichi Taluk Retired Officials
Association, Tamil Nadu and others Vs.
State of Tamil Nadu (2013) 2 SCC 772
had the occasion to consider the issue
relating to valid classification and held as
under:-

"33.At this juncture it is also
necessary to examine the concept of valid
classification. A valid classification is truly a
valid
discrimination. Article
16 of
the
Constitution of India permits a valid
classification (see, State of Kerala vs. N.M.
Thomas (1976) 2 SCC 310). A valid
classification is based on a just objective.
The result to be achieved by the just objective
presupposes, the choice of some for
differential
consideration/treatment,
over
others. A classification to be valid must
necessarily satisfy two tests. Firstly, the
distinguishing rationale has to be based on a
just objective. And secondly, the choice of
differentiating one set of persons from
another, must have a reasonable nexus to the
objective
sought
to
be
achieved.
Legalistically,
the
test
for
a
valid
classification may be summarized as, a
distinction based on a classification founded
on an intelligible differentia, which has a
rational relationship with the object sought to
be achieved. Whenever a cut off date (as in
the present controversy) is fixed to categorise
one set of pensioners for favourable
consideration over others, the twin test for
valid classification (or valid discrimination)
must necessarily be satisfied."

24. Counsel for the petitioner has not
been able to point out any legal ground so as
to assail the Government Order dated
8.12.2008 as reproduced herein above.
Classification made in the Government Order
dated 08.12.2008 is a valid classification
founded on an intelligible differentia which
has a rational relationship with the object
sought to be achieved.

25. There is another ground for not
entertaining present writ petition i.e. the
date-of-birth of the petitioner is 1.1.1975.
At the time of filing of the present writ
petition, the petitioner as per the affidavit is
46 years. The petitioner in paragraph 5 of
the writ petition has stated as under:-

"That
the
petitioner
was
completely
depend
upon
the
Family
Pension of his mother and also did not get
680 INDIAN LAW REPORTS ALLAHABAD SERIES
married after the death of his father and
now his marital status is bachelor."

26. There is nothing on record to
suggest as to what is the educational
qualification of the petitioner and whether
he is working anywhere or not. It is hardly
inconceivable that a person (male) who is
aged about 46 years is not working
anywhere to sustain himself and rather
dependent upon the family pension of the
deceased (mother).

27. In the aforesaid factual and legal
backdrop, the prayer made by the petitioner
for declaration of the offending provisions
of the Government Order being violative of
Article 15(1) of the Constitution of India as
well as quashing of the order dated
16.3.2021 denying family pension to the
petitioner, is rejected.

28. No other points have been raised
by the learned counsel for the petitioner.

29.

Hence,
petition
fails
and
accordingly is hereby dismissed.
----------
(2022)01ILR A680
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.12.2021

BEFORE

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

Writ A No. 14833 of 2020

Renu Chaudhary ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Indra Dev

Counsel for the Respondents:
C.S.C., Sri Ram Bilas Yadav

A. Service Law - Maternity leave -
Maternity Benefit Act, 2017: Section 2
or 3(e), 5, 5-A, 5-B, 9, 9-A, 10, 11, 12,
27; U.P. Fundamental Rules, Vol. II
Part
II
to
IV
of
the
Financial
Handbook: Rule 153(1) - In the case of
establishments to which the Maternity
Act
does
not
apply,
there
is
no
question of conflict with the leave
rules
of
the
employers
of
such
establishments and the Maternity Act,
so as to bring in S. 27 of the said Act
that gives it overriding effect. There is
clearly no conflict between the second
proviso to Rule 153 of the Rules and the
Maternity Act, which does not apply to the
establishment of the Basic Education Board
or its maintained schools. The petitioner,
therefore, cannot claim any right founded
on the provisions of the Maternity Act in
derogation of Rule 153 of the Rules. (Para
8, 9, 25)

The petitioner here is an Assistant Teacher,
employed with an institution established
and maintained by the Uttar Pradesh Basic
Education Board. She is governed by the
Service Rules applicable to teachers of
primary schools maintained by the Board
and other rules, including the Rules that
apply, amongst other things, in the matter
of grant of leave. The petitioner is, in no
way, employed in an establishment as
defined in Section 3(e) of the Maternity Act
read
with
Section
2(1)
thereof.
The
petitioner is not an employee of an
establishment to which the Maternity Act
applies. (Para 24)

The
restriction
on
the
Right
to
Maternity
Leave
of
a
female
government servant, with regard to
the birth of her child, would be
reckoned with reference to the number
of children living at the time she
applies
for
maternity
leave,
irrespective of the fact whether the
two children living were born before or
after she entered government service.
(Para 6, 13, 26)