JUDGMENT :

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 terminal 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 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-cum-retirement 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 16½ times the emolum