# Smt. Qamar Jahan v. State of U.P. and others

- **Citation:** (2008) 1 ILRA 3
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-12-12
- **Case number:** Civil Misc. Writ Petition No. 53062 of 2006
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-qamar-jahan-v-state-of-u-p-and-others-40982
- **Pages:** 7

## Headnote

Constitution of India, Art. 226, Art. 21Service Law Revised family pensionpetitioner's husband died after 31 years
satisfactory service-1991 family pension
fixed Rs.966/-while in Moti Lal Agarwal
case-family pension should not be less
than
Rs.1275/-respondent
itself
accepted
the
claim-only
reason
of
financial security can not be groundonce the court adjudicated in rem
considering particular legal aspect-body
expected to implement the same forcing
the individual to approach the court
amounts
multiplicity
of
litigationnecessary direction issued with 8%
interest.

Held: Para 14 & 17

Thus, retiral benefits are not bounty but
a right earned by the employer and being
deferred wages payable to a Government
servant in lieu of considerable length of
service rendered by an employee to the
employer cannot be denied on the
ground of financial scarcity or lack of
funds.

Once on a particular legal aspect dealing
with service condition of the employees,
the matter is decided by a Court of law,
such body is expected to implement the
same
without
forcing
its
all
the
employees similarly placed to approach
the Court individually as that would
amount not only to multiply litigation
wasting
avoidable
public
time
and
money but would also be against all
spirit of a 'Welfare State' with which the
respondents are expected to work.
Case law discussed:
1996 (2) ESC-612, 1983 (1) SCC-305, AIR
2003 SC-2189, AIR 1983 SC-803, AIR 1958
SC-578, AIR 1963 SC-1332, 2003 (1) SCC-184,
W.P. 33804/04 decided on 6.12.05.

## Text

1 All] Smt. Qamar Jahan V. State of U.P. and others
3
The fact that the appellant has
already
attained
the
age
of
superannuation is not in dispute. Further,
the fact that question of seniority has not
yet been determined and on account of the
appellant having attained the age of
superannuation, it has lost all its
significance is also not disputed. These
additional factors also do not justify an
interference in the discretion exercised by
the learned single judge."

5. The ratio of the decision of the
aforesaid two judgments is squarely
applicable to the present facts and
circumstances of the case.

6. In view of the aforesaid the
impugned order cannot be sustained and
is quashed. The writ petition is allowed.
The District Inspector of Schools is
directed to pass consequential orders on
the resolution sent by the committee of
management within two weeks from the
date of presentation of a certified copy of
the order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.12.2007

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 53062 of 2006

Smt. Qamar Jahan

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri P.N. Dwivedi

Counsel for the Respondents:
Sri Dinesh Chandra Tripathi
S.C.

Constitution of India, Art. 226, Art. 21Service Law Revised family pensionpetitioner's husband died after 31 years
satisfactory service-1991 family pension
fixed Rs.966/-while in Moti Lal Agarwal
case-family pension should not be less
than
Rs.1275/-respondent
itself
accepted
the
claim-only
reason
of
financial security can not be groundonce the court adjudicated in rem
considering particular legal aspect-body
expected to implement the same forcing
the individual to approach the court
amounts
multiplicity
of
litigationnecessary direction issued with 8%
interest.

Held: Para 14 & 17

Thus, retiral benefits are not bounty but
a right earned by the employer and being
deferred wages payable to a Government
servant in lieu of considerable length of
service rendered by an employee to the
employer cannot be denied on the
ground of financial scarcity or lack of
funds.

Once on a particular legal aspect dealing
with service condition of the employees,
the matter is decided by a Court of law,
such body is expected to implement the
same
without
forcing
its
all
the
employees similarly placed to approach
the Court individually as that would
amount not only to multiply litigation
wasting
avoidable
public
time
and
money but would also be against all
spirit of a 'Welfare State' with which the
respondents are expected to work.
Case law discussed:
1996 (2) ESC-612, 1983 (1) SCC-305, AIR
2003 SC-2189, AIR 1983 SC-803, AIR 1958
SC-578, AIR 1963 SC-1332, 2003 (1) SCC-184,
W.P. 33804/04 decided on 6.12.05.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. A harassed widow, who has
already suffered on account of death of
her husband, having met an indifferent
4 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
treatment in the hands of the respondents
with respect to payment of post death
retiral benefits of her husband/family
pension,
has
invoked
extraordinary
equitable jurisdiction of this Court under
Article 226 of the Constitution of India by
means of the present writ petition seeking
a
writ
of
mandamus
commanding
respondents 2 and 3 to determine revised
family pension and pay difference thereof
since 4.3.1991 till date and pay her along
with arrears.

2. The facts in brief, giving rise to
the present writ petition are that the
petitioner's husband Late Rajjab Ali was
appointed as Revenue Inspector in Nagar
Nigam, Allahabad and after rendering
service of more than 30 years, died on
3.3.1991. The respondents determined
family pension at Rs.480/- per month and
started payment thereof in July 1991
though with effect from 4.3.1991. A
Division Bench of this Court vide
judgment dated 24.3.1988 passed in Civil
Misc. Writ Petition No. 15309 of 1984
Moti Lal Agarwal & others Vs. State of
U.P. & others directed Allahabad Nagar
Mahapalika to pay similar amount of
pension including dearness allowance and
family pension etc. as admissible to the
State Government's employee or the
employees of Kanpur Nagar Mahapalika
since 2.7.1981. It was clarified that the
relief would not extend to payment of
gratuity. The matter went in appeal before
the Apex Court, which remanded the
matter vide judgment dated 9.8.1988
passed in SLP (Civil) No. 7917 of 1988,
permitting the parties to address High
Court on the remaining points which they
intend to raise in the matter. On remand,
the aforesaid matter was again decided by
a Division Bench vide judgment dated
19.2.1996 reported in 1996 (2) ESC 612
and this Court issued following directions
to Allahabad Nagar Mahapalika:

"In view of the aforesaid discussion,
we direct the respondents to pay the
dearness allowances to the petitioners at
par with the employees of Municipal
Corporation, Kanpur immediately as
envisaged in G.O. No. 866A/ AA-NA-VI
0.7.84-10K/19 dated 28th February, 1984
contained in Annexure-6 to the writ
petition. We further direct the respondent
to pay the pension also to the petitioners
at par with the employees of the State
(Municipal Corporation, Kanpur) within 4
months failing which it shall carry interest
at the rate of 13% per annum"

3. It is true that though the directions
contained in the aforesaid judgment were
confined to the petitioners in that case, but
the issue decided therein applies to all
similarly placed employees of Nagar
Mahapalika, Allahabad. Consequently,
the
petitioner
made
several
representations
to
the
respondents
requesting to pay family pension on the
basis of revised pay scale in the light of
the judgment of this Court in Moti Lal
Agarwal (supra) but having failed to get
any response from the respondents, the
present writ petition has been filed.

4. The respondents no. 2 and 3 have
filed counter affidavit, which is sworn by
Sri
G.N.
Shukla,
Addl.
Municipal
Commissioner, Nagar Nigam, Allahabad.
He has not disputed entitlement of the
employees of Nagar Nigam regarding
revised dearness allowance, pension and
family pension as held by this Court in
Moti Lal Agarwal (supra), but what has
been said is that Nagar Nigam, Allahabad
passed a resolution in September' 2001
requesting the State Government to bear
1 All] Smt. Qamar Jahan V. State of U.P. and others
5
the expenditure but the same has been
declined by the State Government. It is
further said that the petitioner had filed
Writ Petition No. 6329 of 2007 seeking a
similar relief, but the same has been
dismissed on 7.2.2007 and, therefore, the
petitioner is not entitled for any relief.

5. The petitioner, in her rejoinder
affidavit, has stated that she did not file
any writ petition earlier. On the contrary,
the writ petition no. 6329 of 2007 was
filed by one Gya Prasad. Against the
judgment dated 7.2.2007 passed by
Hon'ble Single Judge, dismissing his writ
petition, he filed a Special Appeal No.
282 of 2007, which was allowed by the
Division Bench on 12.3.2007 setting aside
the judgment of the Hon'ble Single Judge
and remitting the matter to the Hon'ble
Single Judge to decide the writ petition on
merits afresh. A copy of the Government
Order dated 23.12.1997 has also been
placed on record as Annexure RA-2,
which provides that minimum family
pension amount should be 1275/- per
month. It is also said that another writ
petition no. 25673 of 2006 Sangam Lal
Yadav Vs. State of U.P. & others
involving a similar issue has been decided
by this Court following Moti Lal
Agarwal (Supra).

6. Learned counsel for the petitioner
submits that though the issue is already
settled by this Court in Moti Lal Agarwal
(supra) and in view thereof, the petitioner
was entitled for dearness allowance and
family pension on revised rates, but
despite
the
judgment
having
been
rendered by this Court more than a decade
back and even several representations
made by the petitioner, no action has been
taken by the respondents till date and the
petitioner is being paid family pension
presently at the rate of Rs. 966/- per
month, which is ex facie inadequate and
insufficient for even bare sustenance of
herself and her children, hence, is
violative of Article 21 of the Constitution
of India. He contended that pension is not
a bounty but a right earned by the
employee after rendering service for a
particular length with the employer. It
amounts to deferred wages payable after
retirement to the employee or to the
family of the employee after his death in
accordance with rules in recognition of
his/her long service. .

7. On behalf of the respondents,
though entitlement of the petitioner for
revised rate of family pension is not
disputed, but it is said that due to poor
financial condition of Nagar Nigam,
Allahabad, and, its proposal having been
turned down by the State Government, it
is not possible to pay revised family
pension to the petitioner.

Heard learned counsel for the parties
and perused the record.

8. From the pleadings of the parties,
it is evident that claim of the petitioner for
revised
family
pension
and
her
entitlement for the same is not disputed
by the respondents no. 2 and 3 as is
apparent from para-6 and 7 of the counter
affidavit, the relevant extract whereof is
reproduced as under:

"6. ......It is stated that for relief
sought by the petitioner the Nagar Nigam
Allahabad
has
already
passed
the
resolution No. 49 dated 18.09.2001
requesting the state Government to bear
the expenditure but the same was stayed
by State Government vide Government
vide order dated 03.02.2004.........
6 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
7. ......It is stated that the Nagar
Nigam, Allahabad has been recommended
for the relief sought by the petitioner
through it resolution dated 18.09.2001
but the same was stayed by the State
Government vide Government Order
dated 03.02.2004."

9. The only reason for non payment
appears to be the alleged lack of funds
and
financial
scarcity
with
the
respondents no. 2 and 3 and refusal by the
State Government for bearing financial
burden. Whether this can be a ground to
deny a right to the petitioner to get revised
family pension is the moot question to be
considered hereat.

10. Pension and retiral benefits of an
employee or his family is a right and
cannot be said to be bounty is now well
settled. The Apex Court, in D.S. Nakara
Vs. Union of India 1983 (1) SCC 305
held as follows:

"pension is a right and the payment
of it does not depend upon the discretion
of the Government but is governed by the
rules and a government servant coming
within those rules is entitled to claim
pension. It was further held that the grant
of pension does not depend upon anyone's
discretion. (Para 20).
In the course of transformation of
society from feudal to welfare and as
socialistic
thinking
acquired
respectability, State obligation to provide
security in old age, an escape from
underserved want was recognized and as
a first steps pension was treated not only
as a reward for past service but with a
view to helping the employee to avoid
destitution in old age. The guid pro quo
was
that
when the employee was
physically and mentally alert, he rendered
not master the best, expecting him to look
after him in the fall of life. A retirement
system therefore exists solely for the
purpose of providing benefits. In most of
the plans of retirement benefits, everyone
who qualifies for normal retirement
receives the same amount. (Para 22).
Pensions to civil employees of the
Government and the defence personnel as
administered in India appear to be a
compensation for service rendered in the
past. (Para 28).
Summing up it can be said with
confidence that pension is no only
compensation for loyal service rendered
in the past, but pension also has a
broader significance, in that it is a
measure of socio-economic justice which
inheres economic security in the fall of
life when physical and mental prowess is
ebbing corresponding to aging process
and, therefore, one is required to fall back
on savings. One such saving in kind is
when you give your best in the hey-day of
life to your employer, in days of
invalidity, economic security by way of
periodical payment is assured. The term
has been judicially defined as a stated
allowance
or
stipend
made
in
consideration of past service or a
surrender of rights or emoluments to one
retired from service. Thus the pension
payable to a government employee is
earned by rendering long and efficient
service and therefore can be said to be a
deferred portion of the compensation or
for
service
rendered.
(Para
29)"
(emphasis added)

11. That being so, non payment of
pension or family pension to an employee
or his family in accordance with law to
the extent he/she is entitled amounts to
denial
of
right
to
earn
livelihood
enshrined
under
article
21
of
the
1 All] Smt. Qamar Jahan V. State of U.P. and others
7
Constitution. The expression 'right to life'
in Article 21 of the Constitution does not
denote a mere physical or animal
existence. The 'right to life' includes 'right
to live with human dignity'. In A. K.
Bindal and another Vs. Union of India
and others AIR 2003 SC 2189 it was
held that 'right to life' enshrined under
Article 21 means something more than
bare survival or animal existence. The
Court referred to it earlier decision in
State
of
Maharashtra
Vs.
Chandrabhan AIR 1983 SC 803 where
payment
of
very
small
subsistence
allowance
to
an
employee
during
suspension was held wholly insufficient
to sustain his living and, was held to be
violative of Article 21 of the Constitution.

12. For the purpose of payment of
due wages necessary for bare sustenance
or minimum wages, the financial capacity
of the employer has not been held to be a
valid consideration by Constitution Bench
of the Apex Court in Express Newspaper
(Private) Ltd. Vs. Union of India AIR
1958 SC 578, Hindustan Times Ltd.,
New Delhi Vs. Their Workmen AIR
1963 SC 1332. In S.K. Mastan Bee Vs.
General
Manager,
South
Central
Railway & another 2003 (1) SCC 184,
the Court held that 'right to life' included
right to family pension and right to earn
livelihood under Article 21 of the
Constitution. In Moti Lal Agarwal
(supra) also a similar defence appears to
have been taken by Nagar Mahapalika,
Allahabad
(now
Nagar
Nigam,
Allahabad) which has been considered by
the Court in para-17 of the judgment and
has been rejected.

13. A similar argument earlier was
also raised on behalf of Nagar Nigam,
Kanpur before this Court in Writ Petition
No. 33804 of 2004 Samal Chand Tiwari
Vs. State of U.P. & others decided on
6.12.2005 and was rejected, holding :

"Similarly
financial
crunch
or
shortage of funds would not be a valid
defence for the State where it is bound to
discharge its duties which are statutory or
constitutional is also the view taken by
the Apex Court in the case of Secretary,
Ministry of Chemicals & Fertilizers,
Government of India Vs. Cipla Ltd. and
others, 2003 (7) SCC page 1 and The
State of Gujarat and another Vs. Shri
Ambica Mills Ltd., Ahmedabad and
another, 1974 (4) SCC 656 para 54 to 63
and AIR 1987 SC 157, para 92, 93 and
99."

14. Thus, retiral benefits are not
bounty but a right earned by the employer
and being deferred wages payable to a
Government
servant
in
lieu
of
considerable length of service rendered by
an employee to the employer cannot be
denied on the ground of financial scarcity
or lack of funds.

15. The respondents have admitted
that the complaint of the petitioner was
found to be genuine and they resolved as
long back as on 18.9.2001 for payment
thereof
by
requesting
the
State
Government to bear the expenditure but
the State Government did not care to bore
the said liability. The question as to
whether the State Government was
justified
in
refusing
to
bear
the
expenditure or not is not relevant for the
purpose of the present case, since, in my
view, the husband of the petitioner being
employee of a statutory authority, a local
body like Nagar Nigam, Allahabad, it was
the responsibility of respondents no. 2 and
3 to discharge its burden with respect to
8 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
salary, wages or pension of its employees
and the fact that it was not extended
financial help by the State Government or
somebody else cannot be a reason
justifying non payment of the aforesaid
dues to its employees.

16. Once the respondents found in
2001 that the employees like petitioner
were entitled for revised pension, there
was no reason for not paying the same
immediately
thereafter
or
within
a
reasonable period thereafter. Moreover
non payment of any amount by revising
family pension even after filing of this
Writ petition in 2006 is clearly and
apparently arbitrary and discriminatory. It
is strange that the respondents felt
satisfied by paying a merge sum of
Rs.966/- per month to the petitioner
towards family pension as if the same
would be sufficient for sustenance of
herself
and
her
children.
Judicial
cognizance can be taken of the fact that
about Rs.32/- per day, which the
petitioner is being paid towards family
pension, can not be sufficient even to bear
two times' meal for a single person during
these days, what to say of a family which
consisted of more than one person. The
attitude of the respondents by not
resolving the problem of arranging funds
and making payment towards pension to
the retired employees or their family in
the light of the judgment of this Court in
Moti Lal Agarwal (supra) cannot be
appreciated and must be contemned in
strongest words.

17. It is true that ultimate direction
contained in Moti Lal Agarwal (supra)
was with respect to the petitioners in that
case, but the law laid down therein is a
judgment in rem, applicable to all the
employees of Nagar Nigam, Allahabad
similarly situated and it was not expected
from a statutory body like Nagar Nigam,
Allahabad not to extend benefit of the
said judgment to all similarly placed
persons on its own and instead to compel
those persons to approach the Court,
obtain order and thereafter, it would act
upon. A statutory body or the State
Government is expected to act as a model
employer. Once on a particular legal
aspect dealing with service condition of
the employees, the matter is decided by a
Court of law, such body is expected to
implement the same without forcing its all
the
employees
similarly
placed
to
approach the Court individually as that
would amount not only to multiply
litigation wasting avoidable public time
and money but would also be against all
spirit of a 'Welfare State' with which the
respondents are expected to work.

18. In Workmen of Bhurkunda
Colliery of Central Coalfields Ltd. Vs.
Bhurkunda
Colliery
of
Central
Coalfields Ltd. 2006 (3) SCC 297, the
Apex Court observed that the State should
be a model employer, should not exploit
employees
nor
take
advantage
of
helplessness
of
either
unemployed
persons or the persons concerned as the
case may be. The dictum is fully
applicable to the present case also where a
destitute widow has been forced to
approach
the
Court
of
law
for
enforcement of her legal right of receiving
family pension on revised scale, which
has not been heeded by the respondents
despite the law laid down by a Division
Bench of this Court as long back as in
1996. In Balram Gupta Vs. Union of
India & another 1987 (suppl.) SCC 228,
the Court held:
1 All] Ashfaq V. State of U.P.
9
"As
a
model
employer
the
government must conduct itself with high
probity and candour with its employees"

19. In view of the above discussions,
the
writ
petition
is
allowed.
The
respondents are directed to revise and fix
family pension of the petitioner in the
light of the judgment of this Court in
Moti Lal Agarwal (supra) within a
period of four months and continue to pay
current the amount as determined above
as and when it falls due. The petitioner
shall also be entitled for interest on the
arrears of family pension at the rate of 8%
with effect from 22.9.2006, i.e., the date
of filing of the writ petition till the said
amount is paid. The petitioner shall also
be entitled to cost which is quantified to
Rupees
ten
thousand
payable
by
respondents no. 2 and 3.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.12.2007

BEFORE
THE HON'BLE SHIV SHANKER, J.

Criminal Appeal No. 636 of 1995

Ashfaq

...Appellant
Versus
State of U.P.

...Opposite Party

Counsel for the Appellant:
Sri Pt. Mohan Chandra
Sri. S.K. Tyagi
Sri. M.P. Rai
Sri. A.K. Rai
Sri. V.K. Jaiswal

Counsel for the Opp. Party:
A.G.A.

N.D.P.S. Act Section 50-provision of
section
50-held
mandatory-non
compliance thereof vitiate whole trailtrail court committed great illegality by
convicting the appellant.

Held: Para 24 & 25

In the present case it was asked from
the appellant by P.W. 1 Veersain and
P.W. 2 Sultant Singh that " Jamatalashi
Rajpatrit Adhikari Ke Samaksh Chalkar
Lene Ke Liye Kaha To Kahane Laga Ki
Aap He Jamatalashi Le Len."

Therefore,
there
was
no
complete
compliance of section 50 of N.D.P:S. Act
and merely on that basis trial could be
vitiated.
However,
trial,court
has
committed
error
in
convicting
the
appellant for the said charge.
Case law discussed:
2005(3) SCC 59, 1998(8) SCC 449, 2007(58)
ACC 723, 1999(39) Supreme Court 349,
2007(1) SCC 433, 1996(6) SCC 172

(Delivered by Hon'ble Shiv Shanker, J.)

1. This criminal appeal has been
preferred against the judgement and order
dated 31.3.1995 passed by VI Addl.
Sessions Judge, Ghaziabad in Sessions
Trial No. 29 of 1993 convicting and
sentencing the appellant to undergo 10
years R.I. and a fine of Rs. 1,00,000/-and
in default of payment of fine to further
undergo two and half years R.I. under
section 22 of N.D.P.S. Act.

2. Brief facts arising out of this
criminal appeal is that on 16.11.92, S.I.
Sultan Singh (P.W.2) was returning after
making enquiry of the application and
stopped at Loni crossing where informer
(Mukhbir) met with him and had given
information to him that one person is
likely to come from the side of railway
station Loni having illegal smack, upon
which he had tried to take the public
witnesses but none was prepared to