# Smt. Qamaru Nisha v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 182
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-01-13
- **Case number:** Special Appeal No. 1206 of 2014
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-qamaru-nisha-v-state-of-u-p-ors-43273
- **Pages:** 3

## Headnote

High Court Rules-chapter VIII Rule 5Special
Appeal-dismissal
of
petitionclaim of interest-dismissal on account of
non disclosure of actual amount of death
cum-post
retiral
benefits-apart
from
highly
belated
stage-admittedly
the
amount of gratuity and pension given in
2011 after facing contempt proceeding
consuming 29 years-held-approach of
Single Judge wholly erroneous-petition
could not be dismissed-appellant being
heir of deceased employee can not
disclose accurate figure of claim-it is for
the state-order passed by Single Judge
set-a-side-with direction to decide writ
petition
on
merit.
1 All] Smt. Qamaru Nisha Vs. State of U.P. & Ors.
183
Held: Para-3 & 4
3.The learned Single Judge has erred in
finding fault of the appellant for not
specifying what were the exact balance
dues. As a matter of fairness, it was for
the State to indicate in the form of a
computation, the dues as computed and
to which the appellant was entitled and
that the entirety of the dues had been
paid. This ought to have been placed on
the record before the learned Single
Judge. In any event having due regard to
the facts of this case, it was the duty of
the State to explain why no payment had
been made for a period of 29 years since
the date of death of the employee.

## Text

182
 INDIAN LAW REPORTS ALLAHABAD SERIES
order of the Joint Director of Education
dated 3rd December 2013 directing
respondent no.3 to compensate the
petitioner out of its own fund is just and
proper. Per contra the counsel for the
respondent submits that the Writ Court,
on basis of record and perusal of the
scheme has rightly come to the conclusion
that the Institution is actually an agency
of the State and, therefore, in the facts that
mistake has occurred by the Institution it
is the State which has to pay the
scholarship/fee reimbursement under the
scheme.
6. After hearing learned counsel for
the parties and on perusal of the aforesaid
finding of the Writ Court we are of the
considered opinion that under the Uttar
Pradesh
Samanya
Varg
Dashmottar
Chhatrivitti Yojna Niyamawali, 2012' it is
the
State
which
is
to
pay
the
reimbursement of the scholarship fee.
Admittedly, no fraud has been played by
the petitioner (respondent no.1 in the
present appeal) and he has been denied
reimbursement to which he is otherwise
entitled to, only on the ground that there
has been a mistake in uploading of his
particulars by the Institution which is an
agency acting on behalf and in connection
of the work of the State for the success of
the scheme and so it cannot be made
responsible for reimbursement of fee,
payment of which is primary duty of the
State. Therefore, the order dated 3rd
December, 2013 of the Joint Direction of
Education directing the respondent no.3
Institution to compensate the petitioner
monetarily out of its own fund, as the
mistake
in
uploading
was
of
the
institution, cannot be sustained. This
order would rather be against the spirit of
the claim itself which provides for
economic help provided by the State to
candidates eligible under the scheme
whose family earning is less than
Rs.30,000/- per annum.
7. For all the reasons stated above,
we do not find any illegality or infirmity
in the findings recorded by the Writ
Court.
8. The appeal is accordingly,
dismissed. No order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.01.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE SUNEET KUMAR, J.
Special Appeal No. 1206 of 2014
Smt. Qamaru Nisha
 ...Appellant
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Appellant:
Sri Keshav Kumar Srivastava
Counsel for the Respondents:
C.S.C.
High Court Rules-chapter VIII Rule 5Special
Appeal-dismissal
of
petitionclaim of interest-dismissal on account of
non disclosure of actual amount of death
cum-post
retiral
benefits-apart
from
highly
belated
stage-admittedly
the
amount of gratuity and pension given in
2011 after facing contempt proceeding
consuming 29 years-held-approach of
Single Judge wholly erroneous-petition
could not be dismissed-appellant being
heir of deceased employee can not
disclose accurate figure of claim-it is for
the state-order passed by Single Judge
set-a-side-with direction to decide writ
petition
on
merit.
1 All] Smt. Qamaru Nisha Vs. State of U.P. & Ors.
183
Held: Para-3 & 4
3.The learned Single Judge has erred in
finding fault of the appellant for not
specifying what were the exact balance
dues. As a matter of fairness, it was for
the State to indicate in the form of a
computation, the dues as computed and
to which the appellant was entitled and
that the entirety of the dues had been
paid. This ought to have been placed on
the record before the learned Single
Judge. In any event having due regard to
the facts of this case, it was the duty of
the State to explain why no payment had
been made for a period of 29 years since
the date of death of the employee.
4. In these circumstances, the heirs of an
employee cannot be non-suited on the
ground of delay when there has been a
failure on the part of the State to pay the
retiral dues within a reasonable period. In
this view of the matter, we are of the view
that the impugned order of dismissal of
the writ petition is unsustainable and
would have to be set aside.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. The appellant had filed a writ
petition seeking a direction to the second
respondent, namely, the Deputy Director
of Consolidation, Farukhabad, to pay the
balance of the death-cum-post retiral dues
on account of the services rendered by her
spouse and for a decision on a claim for
the payment of interest for a delay of 29
years till the payment of the retiral dues.
The writ petition has been dismissed by
the learned Single Judge by the impugned
order dated 2 December 2014 on the
ground that (i) the appellant has not
indicated what is the balance of deathcum-post retiral benefits; (ii) the claim
having been set up in the writ petition in
2014 is barred by laches; and (iii) the
appellant is not entitled to interest on the
amount, if it is due, since the appellant is
at fault for not having approached the
Court at the relevant point of time.
2. The appellant in the writ
proceedings averred that her spouse was
working as a peon in the establishment of
the Deputy Director of Consolidation,
Farukhabad and died in 1983 during the
tenure of his service. It was her case that
after the death of her husband, she had
fulfilled all necessary requirements for the
payment of the retiral dues, in spite of
which, no payments have been made to
her even in respect of the admitted
amount of GPF, pension, group insurance
policy etc. The appellant filed a writ
petition, which was disposed of on 30
July 2008 (Civil Misc. Writ Petition
No.35682 of 2008) with a direction to
consider
and
dispose
of
the
representation. Though the appellant
moved a representation on 4 November
2008, it was not decided, after which, she
was constrained to move a contempt
application. At that stage in 2011, an
amount of Rs.5,75,000/- was paid to her,
as stated in paragraph 21 of the writ
petition. The grievance of the appellant
was that even 29 years after the death of
her spouse, full payment of the deathcum-retiral benefits have not been made,
as a result of which, she was entitled to
the payment of the balance amount
together with interest. The appellant, in
support of her contention, annexed at
Annexure 4, relevant details in regard to
the payments made under the directions of
the Treasury Officer, Gorakhpur.
3. On these facts, we find merit in
the contention of the learned counsel for
the appellant that the learned Single Judge
was clearly not justified in dismissing the
petition on the ground of delay and
laches. Payment of retiral benefits,
184
 INDIAN LAW REPORTS ALLAHABAD SERIES
including benefits which accrue on
account of the death of an employee, is
not a matter of largesse or charity but
constitutes a vested right on account of
the years of service rendered as an
employee of the State. The facts on the
record would make it clear that it was the
State which took a long period of 29 years
to make payment of the retiral dues. As
pleaded by the appellant, an amount of
Rs.5,75,000/- was paid to her in 2011
though the death of the employee had
occurred in 1983. The grievance of the
appellant is that this did not represent the
full amount of the payments due and
outstanding
towards
death-cum-retiral
benefits. The learned Single Judge has
erred in finding fault of the appellant for
not specifying what were the exact
balance dues. As a matter of fairness, it
was for the State to indicate in the form of
a computation, the dues as computed and
to which the appellant was entitled and
that the entirety of the dues had been paid.
This ought to have been placed on the
record before the learned Single Judge. In
any event having due regard to the facts
of this case, it was the duty of the State to
explain why no payment had been made
for a period of 29 years since the date of
death of the employee.
4. In these circumstances, the heirs
of an employee cannot be non-suited on
the ground of delay when there has been a
failure on the part of the State to pay the
retiral dues within a reasonable period. In
this view of the matter, we are of the view
that the impugned order of dismissal of
the writ petition is unsustainable and
would have to be set aside.
5. We, accordingly, set aside the
judgment of the learned Single Judge
dated 2 December 2004 and restore Writ ? A
No.64921 of 2014 for fresh disposal on
merits. We direct the respondents to file a
counter affidavit on or before 9 March 2015.
The counter affidavit shall specify the
computation of the death-cum-retiral dues.
The
affidavit
shall
also
contain
an
explanation, if any, of the State for the delay
of well over 29 years in the payment of the
dues to the appellant. The issue as to whether
full payment has been made to the appellant
and whether the appellant should be entitled
to the award of interest, shall be decided by
the learned Single Judge after the counter
affidavit is filed. We grant liberty to the
appellant to move the learned Single Judge
upon the expiry of the period fixed by this
order for the filing of a counter affidavit. The
learned Single Judge may, having due regard
to the facts of the case, and more particularly
that the appellant is a poor widow who is
fighting for the payment of her entitlement,
take an appropriate view while directing the
listing of the writ petition for final disposal at
an early date. The special appeal is,
accordingly, disposed of. There shall be no
order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2015
BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
Second Appeal No. 1261 of 1989
Smt. Lalita Devi
...Plff. Appellant
Versus
Smt. Sayeeda Khatoon
...Respondents
Counsel for the Appellant:
Sri
R.N.
Upadhyay,
Sri
Amarnath
Bhargava, Sri A.N. Bhargava
Counsel for the Respondents:
Sri Shakeel Ahmad Azmi, Sri S.A. Ansari,
Sri Shakeel Ahmad Azami, Sri S.U. Khan