# Smt. Kamar Jahan v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 599
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-20
- **Case number:** Writ A No. 12827 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kamar-jahan-v-state-of-u-p-ors-51709
- **Pages:** 6

## Headnote

Service Law - U.P. Nagar Palika NonCentralized Services Retirement Benefit
Regulation, 1984 - Regulation 7(1) - Family
Pension - Employee died in harness after 9
years, 10 months, 7 days service - Whether
shortfall of 1 month 23 days disentitles widow.
Held: Article 468, U.P. Civil Service Regulations
mandates rounding of fractions of three months
and above to a completed half year - Thus,
deceased's service period to be reckoned as 10
years - Family entitled to consideration for
pension under Note (1) to Regulation 7(1), even
prior to 2016 amendment. (Paras 14-17)

Pension - Circular dated 18.04.2016 -
Nature.
600 INDIAN LAW REPORTS ALLAHABAD SERIES
Circular clarifying Article 468 is declaratory, not
constitutive - It only affirms existing law, not
prospective in operation - Authorities erred in
denying benefit on ground that husband died
before 2016 amendment/circular. (Paras 16-17)

Public
Authority
-
Duty
to
exercise
discretion.
Once 10 years' qualifying service reckoned
under Article 468, Pension Sanctioning Authority
bound to consider widow's case under Note (1)
to
Regulation
7(1)
of
unamended
1984
Regulations - Discretion must be exercised on
objective parameters. (Paras 7, 17)

Held : Writ petition allowed - Mandamus issued
to Commissioner, Varanasi Division, to consider
and sanction petitioner's family pension under
Note (1) to Regulation 7(1) of 1984 Regulations
(unamended) within one month. (Para 18)

Writ Petition Allowed - Mandamus Issued.

CASE LAW DISCUSSED-

## Text

3 All. Smt. Kamar Jahan Vs. State of U.P. & Ors.
599
of reservation, supplementing the judgment
(delivered by Justice U.U. Lalit, J. as His
Lordship then was), Justice Ravindra Bhatt
observed that "reservations, both vertical
and horizontal, are method of ensuring
representation in public services. These are
not to be seen as rigid ?slots?, where a
candidate?s merit, which otherwise entitles
her to be shown in the open general
category, is foreclosed, as the consequence
would be, if the state?s argument is
accepted. Doing so, would result in a
communal reservation, where each social
category is confined within the extent of
their reservation, thus negating merit. The
open category is open to all, and the only
condition for a candidate to be shown in it
is merit, regardless of whether reservation
benefit of either type is available to her or
him."

16. In such above view of the
matter and legal proposition conceived and
applied as law of reservation, since the
respondents have admitted that they have
adjusted the general category candidate
against the vacancy that remained vacant
even after the main merit panel got
exhausted, despite their marks being lesser
to the OBC category candidate, in my
considered view, it was a wrong that
needed
to
be
rectified
by
offering
appointment to OBC category candidate or
those having higher marks than the general
category candidates in the waiting list.

17. The stand taken by the
selection board and the state respondents,
thus, cannot be sustained in law. No one
can be appointed against rules in public
employment,
may
be
interpreting
it
wrongly or mistakenly and if a wrong has
been done it must be undone. Accordingly,
respondents are directed to prepare panel
afresh in the light of law discussed above
and the observations made to make
adjustments of waiting list candidates
against
available
vacancies
that
got
wrongly allotted vide notification dated
01.09.2023. The respondents shall be
issuing notices to the candidates who have
been notified for the purposes of allotment
on 01.09.2023, if already joined inviting
their objections and thereafter fresh panel
shall be prepared from the waiting list. The
notification dated 01.09.2023 shall abide by
the fresh notification.

18. This petition stands disposed
of in above terms.
----------
(2024) 3 ILRA 599
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.02.2024
BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 12827 of 2023

Smt. Kamar Jahan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manoj Kumar Singh, Sri Abhishekh S.
Mishra

Counsel for the Respondents:
C.S.C., Sri S.K. Srivastava

Service Law - U.P. Nagar Palika NonCentralized Services Retirement Benefit
Regulation, 1984 - Regulation 7(1) - Family
Pension - Employee died in harness after 9
years, 10 months, 7 days service - Whether
shortfall of 1 month 23 days disentitles widow.
Held: Article 468, U.P. Civil Service Regulations
mandates rounding of fractions of three months
and above to a completed half year - Thus,
deceased's service period to be reckoned as 10
years - Family entitled to consideration for
pension under Note (1) to Regulation 7(1), even
prior to 2016 amendment. (Paras 14-17)

Pension - Circular dated 18.04.2016 -
Nature.
600 INDIAN LAW REPORTS ALLAHABAD SERIES
Circular clarifying Article 468 is declaratory, not
constitutive - It only affirms existing law, not
prospective in operation - Authorities erred in
denying benefit on ground that husband died
before 2016 amendment/circular. (Paras 16-17)

Public
Authority
-
Duty
to
exercise
discretion.
Once 10 years' qualifying service reckoned
under Article 468, Pension Sanctioning Authority
bound to consider widow's case under Note (1)
to
Regulation
7(1)
of
unamended
1984
Regulations - Discretion must be exercised on
objective parameters. (Paras 7, 17)

Held : Writ petition allowed - Mandamus issued
to Commissioner, Varanasi Division, to consider
and sanction petitioner's family pension under
Note (1) to Regulation 7(1) of 1984 Regulations
(unamended) within one month. (Para 18)

Writ Petition Allowed - Mandamus Issued.

CASE LAW DISCUSSED-

1. Karta Ram Vs St. of U.P. & ors., 2016 (3)
AWC 3076 (LB)

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

1. This writ petition has been
instituted by the petitioner praying that a
mandamus be issued commanding the
respondents to grant family pension to her
along with arrears with effect from
09.11.2012, besides due interest.

2. The facts of the case are that
the petitioner's husband, the late Mustafa,
was appointed a Safai Karmchari on
31.12.2002 with the Nagar Panchayat,
Machhlishahr, District Jaunpur. He was a
compassionate appointee and died in
harness. He rendered good services to the
Nagar Panchayat. The petitioner's husband
died on 08.11.2012, leaving behind him his
widow, three sons and a daughter as his
heirs and legal representatives.

3. It is the petitioner's case that the
deceased employee's heirs and legal
representatives are his dependent family
members.
The
death-cum-retirement
benefits payable were paid to the petitioner
in installments which include gratuity and
dues on account of leave encashment. It is
pleaded that gratuity paid was a sum of Rs.
38,800/- and leave encashment a sum of
Rs. 1,47,000/-. The petitioner says that the
family pension, however, was not paid to
her and when she asked for it, the same was
denied verbally by the respondents saying
that the petitioner's husband had not put in
qualifying service to earn a retirement
pension for himself and a fortiori, family
pension for the family after his demise. It is
the petitioner's case that the service
conditions of the petitioner who was a class
IV employee are governed by the U.P.
Nagar Palika Non-Centralized Services
Retirement Benefit Regulation, 1984 (for
short, 'the Regulation of 1984').

4. Learned Counsel for the petitioner
has drawn the attention of the Court to the
Circular dated 18.04.2016, which says that
in compliance with the order dated
28.01.2016 passed by the Lucknow Bench
of this Court in Writ Petition No. 1685
(S/S) of 2016, the benefit of Article 468 of
the U.P. Civil Service Regulations is to be
extended to employees for the purpose of
reckoning their qualifying service. It is
mentioned in the said circular that in
calculating the length of service, fractions
of a half year equal to three months and
above shall be treated as a completed half
year and reckoned as qualifying service.

5. It is submitted by the learned
Counsel for the petitioner that under
Regulation 7(1) of the Regulations of 1984,
an employee, who has completed 20 years
qualifying service before retirement or has
completed 20 years of such service and dies
while in service, would entitle his family to
3 All. Smt. Kamar Jahan Vs. State of U.P. & Ors.
601
family pension. It is further pointed out that
vide Note (1) appended to Regulation 7(1)
of the aforesaid Regulations, the Pension
Sanctioning Authority may, in exceptional
circumstances in his discretion, award
family pension to the family of an official,
who dies before completing 20 years
qualifying service, but after completing not
less than ten years.

6. It is argued by the learned Counsel
for the petitioner that applying the
provisions of Article 468 of the U.P. Civil
Service Regulations, which have been
adopted uniformly for application in all
cases of reckoning 10 years qualifying
service for purposes of pension in all
departments of the
Government and
Offices, the petitioner would be entitled to
reckon the deceased's services of 9 years,
10 months and 7 days as a completed half
year, and, therefore, 10 years.

7. The further submission advanced
by the learned Counsel for the petitioner is
that once the deceased's service is regarded
as 10 years, the Pension Sanctioning
Authority, under Regulation 7(1) of the
Regulations of 1984 in accordance with
Note (1), must exercise his discretion
reasonably on objective parameters.

8. In the personal affidavit filed on
behalf of the Commissioner, Varanasi
Division, Varanasi, which is being treated
as a counter affidavit, the stand taken is that
the U.P. Nagar Palika Centralized Service
Retirement
Benefit
(5th
Amendment)
Regulations came into force in the year
2016 and the petitioner cannot claim
benefit of the amendment made to the
Regulations
of
1984
by
the
5th
Amendment, inasmuch as the petitioner's
husband, the deceased employee here, died
on
08.11.2012
much
before
the
enforcement of the amended Regulations. It
is urged that the petitioner's rights would be
governed by the pre-amended Regulations
of 1984, that is to say, without reference to
the 5th Amendment, 2016.

9. It is pleaded that under Regulations
7(1) of the Regulations of 1984, the
Pension Sanctioning Authority is entitled to
sanction in exceptional circumstances, in
his discretion, pension upon completion of
a minimum service of 10 years, in a case
where the employee died before completing
20 years. It is said in paragraph no. 5 of the
Commissioner's affidavit that since the total
length of service of the petitioner's husband
was less than 10 years at the time of his
demise,
family
pension
cannot
be
sanctioned for him. It is averred in
paragraph no. 6 of the affidavit filed on
behalf of the Commissioner that by
notification dated 16.12.2016 issued by the
Department
of
Urban
Development,
Regulations 6 and 7 of the Regulations of
1984 were amended and under the
Amended Regulation vide Note (1) to
paragraph 7(1), provision is made to extend
the benefit of family pension after
completion of less than 10 years service in
case of a deceased employee, but that
would not apply to the petitioner's case
because
her
husband
died
prior
to
notification of the Amended Regulations on
16.12.2016. In paragraph no. 1(2) of the
notification through which the amendment
to the Regulations have been enforced, it is
stipulated that the amendment would come
into force with effect from the date of its
publication in the gazette. It is urged that
the notification was published in gazette on
16.12.2016, and, therefore, the amended
Regulations of 2016 would not apply to the
petitioner, whose husband died way back
on 08.11.2012. In paragraph no. 7 of the
affidavit filed by the Commissioner, it is
602 INDIAN LAW REPORTS ALLAHABAD SERIES
said that the Circular dated 18.04.2016
issued by the Government regarding Article
468 of the U.P. Civil Service Regulations,
which provides for reckoning of fractions
of half a year equal to three months and
above to be a completed half year for the
purpose of qualifying service, would also
not apply to the petitioner's case since the
clarification about Article 468 was issued
by the Government on 18.04.2016, whereas
the
petitioner's
husband
died
on
08.11.2012.

10. There is, a further personal
affidavit filed on behalf of the Deputy
Director, Local Fund Audit Department,
Varanasi Division, Varanasi. The Deputy
Director has taken the same stand as the
Divisional
Commissioner.
The
Commissioner is the competent Pension
Sanctioning Authority.

11. Mr. S.K. Srivastava, learned
Counsel
for
the
Nagar
Panchayat,
Machhlishahr, District Jaunpur, who are
arrayed as respondent nos. 3 and 4, has
waived opportunity to file a counter
affidavit on behalf of the said respondents.
Thus, the petitioner's case as against
respondent nos. 3 and 4 is unrebutted.

12. Upon hearing the learned Counsel
for the parties, this Court finds that it would
be
apposite
to
quote
verbatim
the
provisions of Regulation 7(1) of the
Regulations
of
1984,
including
the
amendments brought about by the amended
Regulations of 2016 with effect from
16.12.2016. Regulation 7(1) pre and post
amendment reads:

"वववनयम-7का
सांेांर्शोिन
5- उक्त वववनयमावली में, वववनयम-7 में, नीचे स्िम्भ-1 में
विये गये उपवववनयम (1) के स्थान पर स्िम्भ-2 में विया गया
उपवववनयम रख विया जायेगा, अथााि
स्ट्तम्र्-1
कवद्यमाि उपकवकियम
7(1) ऐसे पििारी
के,
वजसकी
चाहे
सेवावनवृि के पिाि
या कम से कम बीस
वर्ा की अहाकारी सेवा
पूरी करने के पिाि
सेवा में रहिे हुए मृत्यु
हो जाय, पररवार को
िस वर्ा की अववि के
वलए पाररवाररक पेंर्शन
िी जा सकिी है,
वजसकी
िनरावर्श
उपवववनयम(2)
में
वववनविाष्ट िनरावर्श से
अविक न होगी।
वटप्पणीः-
(1) पेंर्शन- स्वीकृवि
प्राविकारी, आपवाविक
पररवस्थवियों
में,
स्ववववेकानुसार वकसी
ऐसे पििारी के पररवार
को, वजनकी मृत्यु बीस
वर्ा की अहाकारी सेवा
पूरी करने के पूवा वकन्िु
कम से कम िस वर्ा
की अहाकारी सेवा पूरी
करने के पिाि हो
जाय, पाररवाररक पेंर्शन
विये जाने पर ववचार
कर सकिा है।
(2) ऐसे मामलोंेां में,
जहाां अहाकारी सेवा
वववहि न्यूनिम से कम
हो, वहाां इस कमी को
माफ नहीं वकया जाना
चावहए
स्ट्तम्र्-2
एतद्द्वारा प्रकतस्ट्थाकपत उपकवकियम
7(1) पाररवाररक पेंर्शन ऐसे पििाररयों के पररवारों को
अनुमन्य होगी, वजनकी मृत्यु सेवाकाल में अथवा सेवावनवृवि
के पिाि हुयी हो, बर्शिे वक मृिक पििारी इस वववनयमावली
के अिीन प्रविकार, अर्शक्त, सेवावनवृवि या अविववर्ािा पेंर्शन
प्राप्त कर रहा हो अथवा प्राप्त वकये जाने का हकिार था। ऐसे
पििारकों के पररवार भी वजनकी इस वववनयमावली के अिीन
पेंर्शन का हकिार होने के पूवा सेवाकाल में मृत्यु हो गयी हो,
पाररवाररक पेंर्शन के हकिार होंगे, बर्शिे वक मृिक पििारण
की वनयुवक्त वनयमानुसार की गयी हो।

13. This Court must notice at once
that the stand taken by the Divisional
Commissioner in paragraph no. 6 of the
personal affidavit that his discretion to
extend the benefit of family pension, upon
the deceased employee completing 10 years
service but less than 20 years, has been
brought in through the 5th Amendment to
the Regulations of 1984 with effect from
16.12.2016, which would not apply to the
petitioner's case her husband having died
before the date of this amendment is not at
all tenable. The reason is that a perusal of
the Regulation 7(1) of the Regulations of
3 All. Smt. Kamar Jahan Vs. State of U.P. & Ors.
603
1984 in its pre-amended form would show
that discretion to sanction family pension
after 10 years of qualifying service, but
before completion of 20 years is a
provision that is there vide Note (1) to
Regulation
7(1);
post
amendment, a
different provision has been introduced and
the petitioner does not seek benefit thereof
at all.

14. The only issue is that the
petitioner's husband never completed ten
years service and died shy by a month and
23 days of completing ten years service.
The issue therefore is, if the petitioner's
husband's services rendered for a period of
9 years, 10 months and 7 days can be
regarded as 10 years, squaring of the
fraction to a unit. In this regard, reference
may be made to the provisions of Article
468 of the U.P. Civil Service Regulations
that find place in Chapter IX relating to
'Amount of Pensions'. Article 468 of the
U.P. Civil Service Regulations reads:

"468. The amount of pension that
may be granted is determined by length of
service. In calculating the length of
qualifying service, factions of a half year
equal to three month and above shall be
treated as a completed one half year and
reckoned as qualifying service."

15. This issue fell for consideration
before a learned Single Judge of this Court
in Karta Ram vs. State of U.P. and
others, 2016 (3) AWC 3076 (LB) . In
Karta Ram (supra), it was held:

"4. The concerned authority while
passing
the
impugned
order
dated
05.07.2014 has rightly stated that the
services rendered on work charged basis
can not be counted for the purposes of
calculation of qualifying services, but has
omitted to consider the provisions of
Regulation 468 of the Civil Service
Regulations
which
provides
that
the
amount of pension that may be granted is
determined by length of service. In
calculating the length of qualifying service,
fractions of a half year equal to three month
and above shall be treated as a complete
one-half year and reckoned as qualifying
service.

5. In the light of the said
provision, as the petitioner had put in 9
years 10 months and 5 days in service,
fraction of a half year above three months
is four months and 5 days, therefore, the
case appears to be covered by Regulation
468 and the said period is liable to be
treated as complete one-half year, which, if
the facts as stated by the petitioner are
correct, entitle the petitioner to ten years
qualifying service for pension, but this
aspect of the matter has not been
considered while passing the impugned
order."

16. It is acting on the aforesaid
remarks of this Court that the circular dated
18.04.2016 was issued by a Secretary to the
Government in the Department of Finance,
addressed to all Principal Secretaries and
Secretaries of various departments in the
Government, besides Head of Departments
and Heads of Offices in Government
Establishments of the State. This circular, a
copy of which is annexed as Annexure No.
4 to the writ petition and also relied upon
by the Commissioner, appending it to his
affidavit, is not constitutive in nature; it is
declaratory. It declares the existing position
of the law that has always been and does
not bring about a change to the law, unlike
the 5th Amendment to the Regulations of
1984, about which no issue is involved
here. The 5th amendment is, no doubt,
amendatory, and, therefore, constitutive. It
604 INDIAN LAW REPORTS ALLAHABAD SERIES
would apply prospectively from the date of
its enforcement and that is the date of its
publication.
The
Commissioner
is
absolutely wrong in thinking that the
Government's
circular
clarifying
the
position of the law about how Article 468
of the Civil service Regulations would
work to reckon the fraction of less than
three months for the purpose of qualifying
service, is prospective in nature. The said
circular does not bring about any change,
as already remarked.

17. This Court, particularly, notices
that it is not at all the Commissioner's stand
or that of the Deputy Director, Local Fund
and Audit Department, Varanasi that Article
468 of Civil Service Regulations does not
apply
to
the
Nagar
Panchayat
Establishment. Rather, the Commissioner
says that it does apply in view of the
circular
dated
18.04.2016,
but
prospectively. That position of the law, we
have
already
held
to
be
utterly
misunderstood by the Commissioner. The
result would be that in accordance with
Article 468 of the Civil Service Regulation,
the petitioner's husband's period of service
which is just short by a month and 23 days
of 10 years, would have to be reckoned as a
completed one half year because it is more
than three months, short of a half year. It
would, therefore, have to be reckoned as 10
years. Once it is held that the petitioner has
completed 10 years of service, the
Commissioner is obliged to consider the
petitioner's case for grant of family pension
in accordance with Note (1) appended to
the unamended Regulation 7(1) of the
Regulations of 1984.

18. In the result, this petition
succeeds and is allowed. A mandamus is
issued to the Divisional Commissioner of
Varanasi, ordering him to consider the
petitioner's case for sanction of family
pension in accordance with Note(1) to
Regulation 7(1) of the Regulations of 1984
(unamended) within a month of the receipt
of a copy of this judgment in accordance
with law and the guidance here.

19. There shall be no order as to costs.

20. Let this order be communicated to
the
Commissioner,
Varanasi
Division,
Varanasi by the Registrar (Compliance).
----------
(2024) 3 ILRA 604
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.01.2024
BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 12847 of 2023

Rakesh Kumar Sharma ...Petitioner
Versus
U.P. Power Corporation Ltd., Luckow &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Manu Mishra

Counsel for the Respondents:
Sri K.K. Rao, Sri Abhishek Srivastava, Sri
Abhishek Srivastava, Ms. Akanksha Sharma
(S.C.), Sri Manish Goyal (A.A.G.)

Service Law - Disciplinary Proceedings -
Procedural Fairness - Petitioner, an Office
Assistant
with
U.P.
Power
Corporation,
challenged his dismissal from service for
possessing disproportionate assets, alleging
violation of procedural fairness under the U.P.
Power
Corporation
Limited
Employees
(Discipline and Appeal) Regulations, 2020 -
Held, the Inquiry Committee failed to conduct
an oral inquiry or produce witnesses to prove
the charge, relying solely on police investigation
reports without independent evidence - This
violated
the
salutary
principle
that
the
establishment must prove charges through oral