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A.F.R.

Court No. - 36

Case :- WRIT - A No. - 576 of 2023

Petitioner :- Smt. Kiran Sonkar

Respondent :- State Of U.P.And 3 Others

Counsel for Petitioner :- Harish Chandra Dwivedi

Counsel for Respondent :- C.S.C.,Iqbal Hussain,Nikhil Mishra

Hon'ble Neeraj Tiwari,J.

Rejoinder affidavit filed today, is taken on record.

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.

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.

With the consent of the parties, petition is being decided at the

admission stage itself without calling for counter affidavit.

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.

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.

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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.

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.

I have considered the rival submissions raised by learned

counsel for the parties and perused the record as well as judgment

relied upon.

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.

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)

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(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 (