# Smt. Kiran Sonkar v. State of U.P. & Ors

- **Citation:** (2023) 2 ILRA 811
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-06
- **Case number:** Writ-A No. 576 of 2023
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kiran-sonkar-v-state-of-u-p-ors-49774
- **Pages:** 7

## Headnote

A. Service Law - Pension - U.P. Retirement
Benefit Rules, 1961 - Rule 3(v) - After
death, gratuity, pension and terminal
benefits
shall
be
paid
strictly
in
accordance with Rule 3(3), Rule 5(1) &
Rule 6 of Rules, 1961 and any nomination
made in service book contrary to the
Rules, 1961 cannot be accepted. Petitioner
being legally wedded wife is fully entitled for
terminal benefits. (Para 22)

In the present case, facts are not disputed.
Nomination has been made in favour of
brother for Gratuity, Leave Encashment and
other
terminal
benefits,
which
is
not
permissible under Rule 3(3), Rule 5(1) & Rule
6 of Rules, 1961 in light of definition of
family. Brother below the age of 18 years may
be entitled for pensionary benefits in case
other members of family mentioned in Rule
3(i)(ii)(iii) & (iv) of Rules, 1961 are not
available. Civil Litigation or matrimonial
dispute
between
husband
and
wife
cannot be a ground to exclude the wife
from
terminal
benefits.
Even,
if
nomination has been made in favour of
some other person or any reference has
been made w.r.t. a legal or matrimonial
dispute with wife in service book, that
cannot be a ground for excluding the wife for
gratuity, pension & other terminal benefits,
unless a valid divorce decree has been
passed between husband and wife. No
such decree of divorce is on record between
deceased employee and his wife, petitioner
before this Court. (Para 21)

B. Words & Phrases - "Family" - Rule 3
deals with "Family" and reads as - " "Family"
means the following relatives of an officer: (i)
wife, in the case of any male officer;.... (ix)
children of a pre-deceased son" (Para 11)

Writ petition allowed. (E-4)

Precedent followed:

## Text

2 All. Smt. Kiran Sonkar Vs. State of U.P. & Ors.
811
an exercise undertaken by the District
Magistrate was completely uncalled for and
unwarranted and time devoted by him for
undertaking such exercise could have easily
been saved and utilized in furnishing the
petitioner's representation to the State
Government.

42. For the discussion made and
reasons given above, we are of the opinion
that the detention of the petitioner is liable
to be quashed.

43. Resultantly, the instant Habeas
Corpus petition is allowed. The impugned
order of detention dated 08.03.2022 passed
by the District Magistrate, Sitapur and all
subsequent consequential orders are hereby
quashed.

44. The detenue-petitioner is ordered
to set at liberty by the respondents
forthwith unless he is required to be
detained in connection with any other case.

45. There will be no order as to costs.
----------
(2023) 2 ILRA 811
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2023 &
15.02.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-A No. 576 of 2023

Smt. Kiran Sonkar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Harish Chandra Dwivedi

Counsel for the Respondents:
C.S.C., Sri Iqbal Hussain, Sri Nikhil Mishra

A. Service Law - Pension - U.P. Retirement
Benefit Rules, 1961 - Rule 3(v) - After
death, gratuity, pension and terminal
benefits
shall
be
paid
strictly
in
accordance with Rule 3(3), Rule 5(1) &
Rule 6 of Rules, 1961 and any nomination
made in service book contrary to the
Rules, 1961 cannot be accepted. Petitioner
being legally wedded wife is fully entitled for
terminal benefits. (Para 22)

In the present case, facts are not disputed.
Nomination has been made in favour of
brother for Gratuity, Leave Encashment and
other
terminal
benefits,
which
is
not
permissible under Rule 3(3), Rule 5(1) & Rule
6 of Rules, 1961 in light of definition of
family. Brother below the age of 18 years may
be entitled for pensionary benefits in case
other members of family mentioned in Rule
3(i)(ii)(iii) & (iv) of Rules, 1961 are not
available. Civil Litigation or matrimonial
dispute
between
husband
and
wife
cannot be a ground to exclude the wife
from
terminal
benefits.
Even,
if
nomination has been made in favour of
some other person or any reference has
been made w.r.t. a legal or matrimonial
dispute with wife in service book, that
cannot be a ground for excluding the wife for
gratuity, pension & other terminal benefits,
unless a valid divorce decree has been
passed between husband and wife. No
such decree of divorce is on record between
deceased employee and his wife, petitioner
before this Court. (Para 21)

B. Words & Phrases - "Family" - Rule 3
deals with "Family" and reads as - " "Family"
means the following relatives of an officer: (i)
wife, in the case of any male officer;.... (ix)
children of a pre-deceased son" (Para 11)

Writ petition allowed. (E-4)

Precedent followed:

1. Gangubai Bhagwan Salawade & ors. Vs Smt.
Chimanabai Suryabhan Salawade & ors., 2004
Vol. 106 (4) Bombay (Para 16)
812 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Ram Chander Talwar & anr. Vs Devendra
Umar Talwar, 2011 (2) AWC 1576 (SC) (Para
17)

3. Virendra Kumar Srivastava & anr. Vs The
Hon'ble High Court of Judicature at Allahabad
through Re, Service Single No. 2532 of 2014
(Para 19)

4. Chandra Kali Vs St. of U.P. & ors., Writ A No.
3288 of 2017, decided on 31.07.2019 (Para 20)

Present petition has been filed to issue a
writ of mandamus for a direction upon the
Municipal Commissioner Nagar Nigam,
Varanasi to grant/release the pension in
favour of petitioner.

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Rejoinder affidavit filed today, is
taken on record.

2. Heard learned counsel for the
petitioner, Sri Govind Narayan Srivastava,
learned standing counsel for respondent no.
1 and Sri Iqbal Hussain, learned counsel for
respondent nos. 2 to 4.

3. Present petition has been filed to
issue a writ of mandamus for a direction
upon the Municipal Commissioner Nagar
Nigam, Varanasi to grant/ release the
pension in favour of petitioner.

4. With the consent of the parties,
petition is being decided at the admission
stage itself without calling for counter
affidavit.

5. Learned counsel for the petitioner
submitted that petitioner is legally wedded
wife of deceased Sanjay Kumar Sonkar,
who was working on the post of Sanitary
Supervisor, Health Department, Nagar
Nigam, Varanasi and died on 5.10.2020.
After his death, petitioner is fully entitled
for all teminal benefits.

6. Case was heard on 12.01.2023 and
Court
had
directed
the
Municipal
Commissioner,
Nagar
Nigam,
Jhansi-
respondent no. 2 to file personal affidavit
as to why petitioner's pension as admissible
under the Rules has not been paid to her.
Upon
which,
personal
affidavit
of
respondent no. 2 has been filed with the
specific averment that in service book of
deceased employee, nomination has been
made in favour of his son, for the purpose
of appointment on compassionate ground
and brother, for other terminal benefits. It is
also mentioned in the service book that
deceased employee is having legal dispute
with his wife.

7. Today, learned counsel for the
petitioner submitted that terminal benefits
of petitioner is governed by the provisions
of U.P. Retirement Benefit Rules, 1961 (in
short
"Rules,
1961"),
which
clearly
provides that for the purpose of family
pension, nomination can be made only in
favour of one or more family members and
beyond family members, no nomination
can be made. He next submitted that as per
the definition given in Rules, 1961, brother
below the age of 18 years is entitled for
terminal benefits at Serial No. (5) as
provided in Rule 3(v) of Rules, 1961 in the
order of hierarchy. In the present case,
undisputedly, petitioner is wife of deceased
employee placed at Serial No. 1 as
provided in Rule 3(i) of Rules, 1961 also
having a son and she has never been legally
separated. In support of his contention, he
relied upon certain judgments of Apex
Court, this Court as well as other Court on
the same issue. Lastly, he submitted that a
direction may be issued to respondents to
2 All. Smt. Kiran Sonkar Vs. State of U.P. & Ors.
813
pay all terminal benefits to the petitioner
forthwith.

8. Sri Khalid Mahmood, advocate
holding brief of Sri Iqbal Hussain, learned
counsel for respondent nos. 2 to 4 reiterated
that in service book, nomination of
deceased employee has been made in
favour of his son for the purpose of
appointment on compassionate ground and
brother for other terminal benefits, but
about legal submission, he could not
dispute the same.

9. I have considered the rival
submissions raised by learned counsel for
the parties and perused the record as well
as judgment relied upon.

10. Before dealing with the aforesaid
issue, it would be useful to reproduce
certain definitions as given in Rules, 1961
for proper adjudication of the case.

11. Rule 3 deals with Family and
reads as under;

"(3)
"Family"
means
the
following relatives of an officer:

(i) wife, in the case of any male
officer;

(ii) husband, in the case of a
female officer;

(iii) sons (including step-children
and adopted children)

(iv) unmarried and widowed
daughters. (Including step-children and
adopted children)

(v) brothers below the age of 18
years and unmarried and widowed sisters
(including step-brothers and step-sisters);

(vi) father;

(vii) mother;

(viii)
married
daughters
(including step-daughters), and

(iv) children of a pre-deceased
son"

12. Rule 5 deals with Death-cumretirement Gratuity and reads as under;

"(1) .....

(2) if an officer dies while in
service a gratuity, the amount of which
shall, subject to a minimum of 12 times and
a maximum of 161⁄2 times the emoluments,
be an amount equal to one-fourth of the
emoluments of the officer multiplied by the
total number of six monthly periods of
qualifying service, shall be paid to the
person or persons on whom the right to
receive the gratuity is conferred under subrules (1) to (8) of Rule 6 and if there is no
such person, it shall be paid in the manner
indicated in sub-Rule (9) of that rule."

13. Rule 6(1) deals with the
nomination and reads as under;

"Nomination-(1). A Government
servant shall, as soon as he acquires or if he
already holds a lien on a permanent
pensionable
post,
make
a
nomination
conferring on one or more persons the right to
receive any gratuity that may be sanctioned
under sub-rule (2) or sub-rule (3) of the rule 5
and gratuity which after becoming admissible
to him under sub-rule (1) of that rule is not
paid to him before death.

Provided that if at the time of
making the Notification the officer has a
family the nomination shall not be in favour
of any person other than one or more of the
members of his family."

14. Rule-7 deals with the Family
Pension, which reads as under;

"Family Pension -(1). The family
pension not exceeding the amount specified
814 INDIAN LAW REPORTS ALLAHABAD SERIES
in sub-Rule (2) below may be granted for a
period of ten years to the family of an
officer who dies, whether after retirement
or while still in service after completion of
not less than 20 years qualifying service.

Provided that the period of
payment of family pension shall in no case
extend beyond a period of five years from
the date on which the deceased officer
reached or would have reached the age of
compulsory retirement."

15. From the perusal of Rule 6 of
Rules, 1961, it is apparently clear that in
case, the officer is having a family,
nomination shall not be made in favour of
any other person except family members.
In present case, undisputedly, deceased
employee was having his family members
and also he has made nomination for
compassionate appointment in favour of his
son, but for terminal benefits, it has been
made in favour of his brother, which is not
permissible in case his wife is alive as
provided in Rule 3(3) & Rule 6 of Rule,
1961, which defines the family, nomination
and hierarchy of entitlement.

16. In the case of (Gangubai
Bhagwan Salawade & others vs. Smt.
Chimanabai
Suryabhan
Salawade
&
others) reported in 2004 Vol. 106(4)
Bombay, it has been held that at the time of
making nomination, it must be made in
favour of one of the members of his family.
Relevant paragraph 5 of the judgment reads
as under:-

"It is no doubt true that once
there is a nomination, the amounts must be
paid over to the nominee under the
Payment of Gratuity Act. A nominee can be
any person who belongs to the family of the
deceased. Section 6 of the Act makes it
clear that if the employee has a family at
the time of making nomination, the
nomination must be made in favour of one
of the members of his family. Any
nomination made by the employee in favour
of a person who is not a member of his
family is void. If the employee at the time of
making a nomination has no family but
subsequently
acquires
a
family,
the
nomination made earlier becomes invalid
and a fresh nomination must be made by
the employee in favour of the members of
his family. "Family" has been defined
under section 2(h) of the Act. In relation to
a male employee the word includes his
wife, his children whether married or
unmarried, his dependent parents and the
dependent parents of his wife and the
widow and children of his predeceased
son."

17. In Ram Chander Talwar and
another vs. Devender umar Talwar and
others; 2011 (2) AWC 1576 (SC), the Apex
Court, while dealing with Section 45 ZA of
the Banking Regulation Act, has held that
nominee of depositor has right to receive
money lying in account of depositor after
his death but he is not owner of money, so
received. In this context paragraph 5 of the
aforesaid judgment is being reproduced as
under:-

" Section 45 ZA (2) merely puts
the nominee in the shoes of the depositor
after his death and clothes him with the
exclusive right to receive the money lying
in the account. It gives him all the rights of
the depositor so far as the depositor's
account is concerned. But by no stretch of
imagination makes the nominee the owner
of the money lying in the account. It needs
to be remembered that the Banking
Regulation Act is enacted to consolidate
and amend the law relating to banking. It is
in no way concerned with the question of
2 All. Smt. Kiran Sonkar Vs. State of U.P. & Ors.
815
succession. All the monies receivable by the
nominee by virtue of Section 45 ZA (2)
would, therefore, form part of the estate of
the
deceased
depsoitor
and
devolve
according to the rule of succession to
which the depositor may be governed."

18. Even, in case of nomination as per
law laid down by the Apex Court, which
authorized the person to only receive the
benefits from such membership in the event
of death of the person, who had nominated
him. In fact, nomination does not create
any right or title in the property and it is
only to provide for the interregnum
between
the
death
and
the
full
administration of the estate and does not
confer any permanent right to the property
forming part of estate of the deceased.

19. The similar dispute was again
before this Court in Service Single No.
2532 of 2014 (Virendra Kumar Srivastava
& Another Vs. The Hon'ble High Court of
Judicature at Allahabad Through Re)
dealing with the case in detail and Court
has dismissed the petition vide order dated
07.04.2015 with following observations;

"As far as the appointment under
Dying in Harness Rules is concerned, it is
established from the documents brought on
record by the official respondents that Smt.
Vinita
Srivastava
and
Km.
Shilpi
Srivastava are the wife and daughter of the
deceased. Furthermore, the petitioner do
not fall within the definition of "family"
under the 1974 Rules. Therefore, the action
of the official respondents cannot be said to
be unreasonable or legally unjustified.

It may be added that during the
course of arguments, it has been brought to
the notice of the court that the petitioners
have entered into a compromise with the
wife of deceased Arvind Nath Srivastava,
who is private respondent in the present
proceedings. As per compromise, all post
death beneifits of Late Arvind Nath
Srivastava shall be paid in equal share to
the petitioners. The wife-respondent shall
receive family pension and the petitioners
and other private respondents would have
no objection with regard to compassionate
appointment to Km.Shilpi Sriavasta.

Having examined the matter in
the light of the relevant Rules, referred to
above, the compromise said to have been
entered into between the parties, cannot be
said to be a valid document in the eyes of
law, as the same is against the provisions
of law because in presence of real daughter
and wife of the petitioner, the court cannot
direct the official respondents to make
payment of post death benefits in favour of
the petitioners. Needless to say, that the
court cannot go contrary to rule to
recognize the compromise. In other words,
by consent or agreement, parties cannot
achieve what is contrary to law and the
court
is
not
bound
to
accept
the
compromise entered into between the
parties to the legal proceedings.

In view of the aforesaid detail
discussions, the petitioner is not entitled for
any relief and the writ petition is hereby
dismissed. The official respondents shall
make the payment of post death benefits,
family pension and dealt the matter of
compassionate appointment strictly
in
accordance with relevant rules."

20. In case of Chandra Kali Vs. State
of U.P. and 7 others passed in Writ A No.
3288 of 2017 decided on 31.07.2019, Court
has held that pension is to be disbursed as
per provisions of Rules, 1961. The Rules
clearly states that only eligible persons as
defined in definition of "family" shall be
entitled to receive family pension and
member out of family member as defined
816 INDIAN LAW REPORTS ALLAHABAD SERIES
in Rules, 1961 is not entitled for pension.
Relevant paragraph of aforesaid judgment
is quoted below;

"As regards, eligibility to family
pension, the pension is to be disbursed as
per the provisions of the Rules, 1961. The
Rules clearly state that only eligible person
is entitled to receive family pension but
where pension awarded ceases to be
payable on the death or marriage of the
recipient or for any other reason, it will be
regranted to the persons next lower in the
order mentioned in sub-rule (4) of Rule 7.
The Hindu second wife would not be
eligible for family pension as long as the
first wife is alive and has not remarried.
There is no provision in the Rules for
relinquishment of family pension in favour
of another person. The eighth respondent
would not fall within the definition of
''family' of the employee. The sixth and
seventh respondent being sons of the
deceased employees brother are also not
family of the employee within the definition
of ''family' under the Rules, 1961."

21. In the present case, facts are not
disputed. Nomination has been made in
favour of brother for Gratuity, Leave
Encashment and other terminal benefits,
which is not permissible under Rule 3(3),
Rule 5(1) & Rule 6 of Rules, 1961 in light
of definition of family. Brother below the
age of 18 years may be entitled for
pensionary benefits in case other members
of family mentioned in Rule 3(i)(ii)(iii) &
(iv) of Rules, 1961 are not available. Civil
Litigation or matrimonial dispute between
husband and wife cannot be a ground to
exclude the wife from terminal benefits.
Even, if nomination has been made in
favour of some other person or any
reference has been made with regard to a
legal or matrimonial dispute with wife in
service book, that cannot be a ground for
excluding the wife for gratuity, pension &
other terminal benefits, unless a valid
divorce decree has been passed between
husband and wife. No such decree of
divorce is on record between deceased
employee and his wife, petitioner before
this Court.

22. Therefore, after death, gratuity,
pension and terminal benefits shall be paid
strictly in accordance with Rule 3(3), Rule
5(1) & Rule 6 of Rules, 1961 and any
nomination made in service book contrary
to the Rules, 1961 cannot be accepted.
Petitioner being legally wedded wife is
fully entitled for terminal benefits.

23. Accordingly, petition is allowed.

24. A writ of mandamus is issued
directing the respondent no. 2 - Municipal
Commissioner, Nagar Nigam, Jhansi to pay
all the terminal benefits to the petitioner
within a period of two months from the
date of production of certified copy of this
order after completing all the formalities
required under the Rules.

25. No order as to costs.

Civil Misc. Correction Application
No. 2 of 2023

1. Heard learned counsel for the
applicant as well as learned standing
counsel and perused the record.

2. The correction application is
allowed.

3. In view of the submission made by
learned counsel for the applicant, following
correction is being incorporated in the
order dated 6.2.2023:-
2 All. Subhash Chandra Vs. District Basic Education Officer, Barabanki &Anr.
817

4. In second line of paragraph 6 and
second line of last paragraph of the order
dated 6.2.2023, in place of 'Nagar Nigam,
Jhansi', it should be read as 'Nagar Nigam,
Varanasi'.
----------
(2023) 2 ILRA 817
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.01.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 6616 of 2007

Subhash Chandra ...Petitioner
Versus
District Basic Education Officer, Barabanki
& Anr. ...Respondents

Counsel for the Petitioner:
Ved Prakash Nag, Abhinav Nath Tripathi,
Amrendra Nath Tripathi

Counsel for the Respondents:
Prashant Arora, Rahul Shukla

A.
Service
Law
-
Compassionate
Appointment - Payment of Salaries Act,
1978 - U.P. Basic Education Act, 1972 -
U.P. Recognized Basic Schools (Junior
High
Schools)
(Recruitment
And
Conditions Of Service Of Teachers) Rules,
1978 - Dying-in-Harness Rules, 1974 -
Merely bringing the institution on the
grant-in-aid
list
(with
effect
from
01.12.2006) after the date of death of
petitioner's father (his father died on
10.12.2001, i.e. prior to 01.12.2006) does
not bar the claim of the petitioner for
being considered for the appointment on
compassionate grounds. (Para 10, 11)

The compassionate appointment in the Primary
School as well as in the Junior Basic School is
made under the GO adopting the Dying-inHarness Rules, 1974. The GO does not create
any discrimination amongst the claims raised by
the candidates whether the institution is
receiving aid from the State Government or it is
recognized institution under the provisions of
U.P. Basic Education Act, 1972. It is not the
case of the District Basic Education Officer that
the institution was not recognized under the
provisions of U.P. Basic Education Act, 1972 at
the relevant point of time. (Para 11)

Writ petition allowed. (E-4)

Present
petition
assails
order
dated
21.09.2007,
and
further
prays
for
consideration of claim for appointment on
compassionate grounds on Class IV post.

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Anas Sherwani, learned
Advocate holding brief of Shri Amrendra
Nath Tripathi, learned counsel for the
petitioner and Shri Rahul Shukla, learned
counsel for the respondent no.1.

2. None has put in appearance for the
respondent no.2 in spite of notice issued to
the respondent no.2.

3. By means of the present writ
petition, the petitioner has prayed for
issuance of a writ in the nature of Certiorari
quashing
the
impugned
order
dated
21.9.2007 (Annexure-9 to the writ petition)
with further prayer to issue a writ in the
nature of Mandamus commanding the
respondents to consider the petitioner's
claim
and
give
appointment
on
compassionate grounds on Class IV post.

4. Factual matrix of the case is that
father of the petitioner died while in service
working on the post of Assistant Teacher in
the School. At the time of death of the
father of the petitioner he was getting scale
of trained teacher. The petitioner is fully
dependent on his father. The petitioner had
completed intermediate education at the