# Virendra Kumar Srivastava & Anr v. The Hon'ble High Court of Judicature at Allahabad

- **Citation:** (2015) 1 ILRA 436
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-07
- **Case number:** Service Single No. 2532 of 2014
- **Bench:** Dr. Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-kumar-srivastava-anr-v-the-hon-ble-high-court-of-judicature-at-43185
- **Pages:** 6

## Headnote

Provident Fund (U.P.) Rules, 1985, Rule5 read with U.P. Retirement Benefit
Rules
1961-Rule
5(2)-Right
and
obligation
of
nominee-deceased
employee
ignoring
his
wife
and
daughter-in service record-shown 'niece'
as nominee-contrary to provisions of
Rules 5(2)-nominee not entitled for any
benefit.
Held: Para-19
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.
Case Law discussed:
2004 Vol. 106 (4) Bombay; 2011 (2) AWC
1576 (SC)

## Text

436
 INDIAN LAW REPORTS ALLAHABAD SERIES
The case is remanded back to trial Court
with direction to afford complainant the
opportunity of hearing and pass afresh the
speaking order on point of summoning in
light of points discussed in the body of
judgment.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.04.2015
BEFORE
THE HON'BLE DR. DEVENDRA KUMAR ARORA, J.
Service Single No. 2532 of 2014
Virendra Kumar Srivastava & Anr.
Petitioners
Versus
The Hon'ble High Court of Judicature at
Allahabad
...Respondent
Counsel for the Petitioner:
Noorul Hasnain Khan, Mohan Singh
Counsel for the Respondent:
Manish
Kumar,
Gaurav
Mehrotra,
Surendra Kumar Shukla
Provident Fund (U.P.) Rules, 1985, Rule5 read with U.P. Retirement Benefit
Rules
1961-Rule
5(2)-Right
and
obligation
of
nominee-deceased
employee
ignoring
his
wife
and
daughter-in service record-shown 'niece'
as nominee-contrary to provisions of
Rules 5(2)-nominee not entitled for any
benefit.
Held: Para-19
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.
Case Law discussed:
2004 Vol. 106 (4) Bombay; 2011 (2) AWC
1576 (SC)
(Delivered by Hon'ble Dr. Devendra
Kumar Arora, J.)
1. Heard learned counsel for parties
and perused the record.
2. By means of present writ petition,
petitioners have inter-alia prayed for a
writ
in
the
nature
of
mandamus
commanding the respondents to make
payment of the post death benefits of Late
Arvind Nath Srivastava together with
12% interest and to consider the petitioner
no. 1 for appointment under Dying in
Harness Rules, 1974.
3. Submission of learned counsel for
the petitioners is that Late Arvind Nath
Srivastava was a peon in High Court,
Lucknow Bench, Lucknow who died on
26.5.2013 during service tenure. It has
been averred in the writ petition that since
the relations between Late Arvind Nath
Srivastava and opposite parties no. 3 & 4
( wife and daughter of deceased) were
strained and litigation were also going on
between them, the deceased had deprived
them from being nominee in the service
record and he was looked after by
petitioner no. 1. As the petitioner no. 1,
Virendra Kumar Srivastava was male
nominee in service record by the deceased
he made an application to the Senior
Registrar (opposite party no. 2) for
payment of post death benefits of Late
Arvind Nath Srivastava in their favour.
On this application, the Joint Registrar
(Accounts) of the Court vide letter dated
1 All] Virendra Kumar Srivastava & Anr. Vs. The Hon'ble High Court of Judicature at Allahabad 437
18.11.2013 asked for the Succession
Certificate issued by the competent
authority for payment of amount under
Group Insurance Scheme.
4. According to petitioner, later on it
came to their knowledge that opposite
parties no. 3 & 4 (the wife and daughter)
have also moved application before the
concerned authority for making payment
of post death benefits of Late Arvind Nath
Srivastava. Km. Shilpi Srivastava d/o late
Arvind Nath Srivastava (opposite Party
no. 4) also moved an application on
29.11.2013
for
appointment
on
compassionate ground under Dying in
Harness Rules.
5. According to petitioners late
Arvind
Nath
Srivastava
was
fully
neglected by his wife and daughter and in
that situation petitioners looked after their
real uncle late Arvind Nath Srivastava,
who under the love and affection on his
own sweet free will made the petitioner
nominee in his service record.
6. It has been contended that since
petitioner has been made nominee, he is
entitled to receive the post death benefits
of the deceased.
7. Refuting the allegations of the
petitioners, learned Counsel appearing for
the official respondents no. 1 and 2 (High
Court etc.) submitted that petitioner no. 1
is the nephew and petitioner no. 2 is niece
of the deceased employee Late Arvind
Nath Srivastava and as per Rules, they do
not fall within the definition of ''Family'
for the purpose of payment of post death
dues of the deceased. So far as filling of
Nomination Form by the deceased is
concerned, Late Arvind Nath Srivastava
had shown petitioner no. 2 as daughter in
the column of relation, as would be
evident from Annexure No. 3 enclosed
with the petition. In order to ascertain
correct facts a legal heir verification
report was sought from the office of the
District Magistrate, Lucknow, as well as
from the office of District Magistrate, Rae
Bareli who in their reports have indicated
that Smt. Vineeta Srivastava and Km.
Shilpi Srivastava as wife and daughter of
the deceased respectively. So far as claim
of petitioner no. 1 is concerned, the same
has been rejected vide order dated
12.7.2013, but quashing of this order has
not been sought and as such, the said
order is intact till today.
8. I have heard learned counsel for
parties and gingerly perused the record.
9. Before dealing with the issue
regarding release of post death dues in
favour of the petitioners, who are said to
be the nephew and niece of the deceased,
it is imperative to refer the definition of
nomination and family as laid down in the
General Provident fund (Uttar Pradesh)
Rules,
1985.
Rule
5
deals
with
nomination and reads as under:
"Nomination.--(1) A subscriber shall
at the time of joining the Fund submit to
the Head of Department/Head of Office a
nomination conferring on one or more
persons the right to receive the amount
that may stand to his credit in the Fund in
the event of his death, before that amount
has become payable or, having become
payable, has not been paid:
Provided that a subscriber who has a
family at the time of making the
nominations shall make such nomination
only in favour of a member or members
of his family:
438
 INDIAN LAW REPORTS ALLAHABAD SERIES
Provided further that the nomination
made by the subscriber in respect of any
other provident fund to which he was
subscribing before joining the fund shall,
if the amount to his credit in such other
fund has been transferred to his credit in
the fund, be deemed to be a nomination
duly made under this rule until he makes a
nomination in accordance with the rule.
10. At this juncture, it would also be
useful to reproduce the definition of
nomination and Family pension as laid
down in the U.P. Retirement Benefit
Rules, 1961.
11. Part II of the U.P. Retirement
Benefit Rules, 1961 deals with the Deathcum-retirement Gratuity. Rule 5(2), which
is relevant for the present purpose, is
reproduced herein-below;
Death-cum-retirement Gratuity :(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
sub-rules (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.
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 subrule (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.
12. Rule-7 deals with the Family
Pension, which reads as under;
Family Pension -(1). The family
pension
not
exceeding
the
amount
specified 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.
13. The word "family has also been
defined in U.P. Government Servants
Dying in Harness Rules, 1974, which is
being reproduced herein-under:-.
"2(c)'family'
shall
include
the
following relations of the deceased
Government servant:
(i) wife or husband;
(ii) sons/adopted sons;
(iii) unmarried daughters, unmarried
adopted daughters, widowed daughters
and widowed daughters-in-law;
1 All] Virendra Kumar Srivastava & Anr. Vs. The Hon'ble High Court of Judicature at Allahabad 439
(iv) unmarried brothers, unmarried
sisters and widowed mother dependent on
the deceased Government servant, if the
deceased
Government
servant
was
unmarried;
(v) aforementioned relations of such
missing Government servant who has
been declared as "dead" by the competent
court;
Provided that if a person belonging
to any of the above mentioned relations of
the deceased Government servant is not
available or is found to be physically and
mentally unfit and thus, ineligible for
employment in Government service, then
only in such situation the word "family"
shall also include the grandsons and the
unmarried
grand
daughters
of
the
deceased Government servant dependent
on him."
5. Recruitment of a member of the
family of the deceased-(1) In case of
Government servant dies in harness after
the commencement of these rules and the
spouse of the deceased Government
servant is not already employed under the
Central
Government
or
a
State
Government or a Corporation owned or
controlled by the Central Government or a
State Government, one member of his
family who is not already employed under
the Central Government or a State
Government or a Corporation owned or
controlled by the Central Government or a
state Government shall, on making an
application for the purposes, be given a
suitable employment in Government
service on a post except the post which is
within the purview of the Uttar Pradesh
Public Service Commission, in relaxation
of the normal recruitment rules if such
person-
(i)
fulfills
the
educational
qualifications prescribed for the post,
(ii) is otherwise qualified for the
Government service, and
(iii) makes the application for
employment within five years the date of
the death of Government servant:-
Provided
that
where
the
State
Government is satisfied that the time limit
fixed for making the application for
employment causes undue hardship in any
particular case, if may dispense with or
relax the requirement as it may consider
necessary for dealing with the case in a
just and equitable manner.
14. As averred above Rule 6 of the
Uttar Pradesh Retirement Benefit Rules,
1961 provides that at the time of making
nomination, if 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. From the perusal
of the nomination form available on
record, it is evident that late Arvind Nath
Srivastava
nominated
Ms.
Ranjana
Srivastava his niece mentioning her as his
daughter, despite the fact that his own
family member i.e. daughter and wife
were present and as such the nomination
made by late Arvind Srivastava is in total
breach contravention of U.P. Retirement
Benefit Rules, 1961 Rules. As far as the
assertion of the petitioner that as to
whether the deceased was informed about
the nomination being made by him is not
admissible in law, has no relevancy as late
Arvind Nath Srivastava has shown Km.
Ranjana Srivastava as daughter in the
column of relations, and there was no
occasion for the department to disbelief
the statement of fact given by the
deceased. The doubt arose when more
than one person came forward to claim
post-death service benefits.
440
 INDIAN LAW REPORTS ALLAHABAD SERIES
15. 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."
16. 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 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.
17. Thus, it is evident that by
nomination a person is authorized to
receive
the
benefits
from
such
membership in the event of death of the
person, who had nominated him. It does
not amount to a bequest in favour of the
nominee; nor does it create any right in
the nominee except to collect it. Putting it
differently, a nomination made by a
person in favour of another does not
create a title in the property. It is only
meant 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. .
18. It would be pertinent to mention
here that the claim of the petitioner no.1
has
been
rejected
by
the
official
1 All] Hansaram Mishra Vs. State of U.P. & Ors.
441
respondents vide order dated 12.7.2013
which was communicated vide order
dated 15.7.2013 but surprisingly, neither
any disclosure about the aforesaid order
of rejection has been made in the writ
petition nor the quashing of the said order
has been sought in the writ petition.
19. 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.
20. 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.
21. 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.
22. 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.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.02.2015
BEFORE
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.
Writ-A No. 42556 of 2013
Hansaram Mishra
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Anil Kumar
Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-Dismissal
from
service-without
opportunity
of
personal hearing-without supply of enquiry
report-without
opportunity
to
crossexamine the witness-held-Principle of
Natural Justice violated-quashed on ground
of disproportionate punishment also.