Smt.Bilquis Jahan vs State Of U.P.Through Secretary ...
2022 Latest Caselaw 8209 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 6
 

 
Case :- WRIT - A No. - 3116 of 2007
 

 
Petitioner :- Smt.Bilquis Jahan
 
Respondent :- State Of U.P.Through Secretary Nagar Vikas-4 And 7 Others
 
Counsel for Petitioner :- Mouzzamur Rahman,G.M.Kamil,Ghaus Beg
 
Counsel for Respondent :- C.S.C.,A.P.Singh Vatsa,Amit Chandra,Mahfooz Alalm,Namit Sharma,Satyansu Ojha,Shailenda Singh Chauhan,Shailendra Singh Chauhan,Shakeel Ahmad Khan
 

 
Hon'ble Irshad Ali,J.

1. Heard Sri Ghaus Beg, learned counsel for the petitioner, learned Standing Counsel for for the respondents no.1 and 2, Sri Namit Sharma, learned counsel for respondents no.3 and 4, Sri Amit Chandra, learned counsel for respondent no.8 and perused the record.

2. The present writ petition has been filed challenging the appointment of respondent no.8 dated 27.01.2006, annexure no.1 to the writ petition.

3. The facts as stated in the writ petition are that petitioner's husband late Jameel Ahmad was a permanent employee on the post of Bhisthi in Nagar Nigam,Lucknow. He died on 24.06.2002 during the tenure of service, leaving behind his wife-Smt. Bilquis Jahan.The petitioner moved an application on 16.07.2002 for making compassionate appointment under The U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred as 'Rules,1974'). One Chhoti/opposite party no.8 alleging herself to be the second wife of late Jameel Ahmad also moved an application for the appointment on compassionate ground. The Zonal Health Officer, Zone-1 Nagar Nigam, Lucknow issued an order on 22.11.2002, directing the opposite party no.8 to produce succession certificate in the office after obtaining from the competent court. The opposite party no.8/ Smt. Chhoti filed a Misc. Case No.23 of 2003 (Smt. Chhoti Vs. Estate of Late Jameel Ahmad) under Section 372 of the Indian Succession Act,1925 in the Court of Civil Judge Mohanlalganj (Senior Division) Lucknow. However, neither the competent court issued succession certificate in favour of Smt. Chhoti nor the legal heir certificate was issued by District Magistrate, Lucknow still she obtained an appointment order dated 27.01.2006 on compassionate ground under Rules 1974 in Nagar Nigam Lucknow. At the relevant time one Santosh Kumar, Upper Nagar Aayukt, Nagar Nigam was officiating as Nagar Aayukt, Nagar Nigam,Lucknow when the impugned appointment order dated 27.01.2006 was issued in favour of respondent no.8/Smt. Chhoti.

4. The petitioner made a complaint dated 06.09.2006 to Nagar Ayukt, Nagar Nigam Lucknow and other competent authorities regarding the serious irregularities committed in the appointment of oSmt. Chhoti daughter of Sri Sumer Lal on compassionate ground under Rules 1974 in place of late Jameel Ahmad, Bhisthi. A complaint was also lodged before the U.P. Mahila Aayog and notice was issued to opposite parties regarding irregularities committed in appointment of Smt. Chhoti on compassionate ground under Rules 1974.

5. Vide letter dated 06.10.2006, Nagar Swasthya Adhikari, Nagar Nigam, Lucknow again issued a letter to the District Magistrate, Lucknow to issue legal heir certificate of late Jameel Ahmad S/o Babban, who died during the tenure of his service. On 13.10.2006, petitioner filed objection before the District Magistrate, Lucknow not to issue legal heir certificate in favour of Smt. Chhoti. The Nagar Swasthya Adhikari, Nagar Nigam, Lucknow issued a letter dated 22.12.2006 to Zonal Swasthya Adhikari in compliance of the notice issued by Mahila Aayog to produce the relevant report pertaining to appointment of Smt. Chhoti. In compliance of the letter, Zonal Swasthya Adhikari issued a letter dated 17.03.2007 to Sri F. Alexender Balda Clerk, Hazratganj Ward, Nagar Nigam Lucknow to produce the relevant file of Smt. Chhoti for the purpose of submitting reply regarding complaint of the petitioner before the Mahila Aayog.The report dated 17.04.2007 of Balda Clerk Sri F. Alexender, Hazratganj Ward clearly shows that the original file and relevant documents in respect of late Jameel Ahmad,Bhisthi Nagar Nigam Lucknow and appointment of Smt. Chhoti were not received at the time of taking over the charge as Balda Clerk Hazratganj Ward.

6. Assailing the appointment of respondent no.8, the submission of learned counsel for the petitioner is that in spite of directions issued to produce the succession certificate, no succession certificate was produced and on the basis of incorporation of name of Smt. Chhoti in the service book of late Jameel Ahmad fraudulently an order of appointment on compassionate ground was obtained by Smt. Chhoti.Thus, the appointment is not sustainable in the eye of law and the same is liable to be set aside.

7. The second submission of learned counsel for the petitioner is that it is settled law that on the basis of entry as nominee in the service book the effect, if any, of nomination only indicates the hand which is to receive the benefits but benefits have to be distributed according to law of succession and the nomination does not confer any beneficial interest on nominee. In support of his submission, he placed reliance on the judgment of Hon'ble Supreme Court in the case of Shipra Sengupta Vs. Mridulsen Gupta and others, (2009) 10 SCC 680 in paragraphs 10,17 and 18 which are quoted below:-

"10.During the pendency of the said civil revision,Niharbala Sengupta died and her other son Mirdul Sengupta was substituted in her place on the basis of an alleged Will executed by her prior to her death in favour of Mirdul Sengupta. The Will expressly dealt with the amount to which she was entitled to receive as a consequence of grant of a succession certificate.Pushpal Sengupta did not challenge the Will by which he was affected. Therefore, the position that emerged was that the court must presume for the purpose of this revision that the Will is validly executed in favour of Mirdul Sengupta.

17.The controversy involved in the instant case is no longer res integra. The nominee is entitled to receive the same, but the amount so received is to be distributed according to the law of succession. In terms of the factual foundation laid in this case, the deceased died on 8.11.1990 leaving behind his mother and widow as his only heirs and legal representatives entitled to succeed. Therefore, on the day when the right of succession opened, the appellant, his widow became entitled to one half of the amount of the general provident fund, the other half going to the mother and on her death, the other surviving son getting the same.

18. In view of the clear legal position, it is made abundantly clear that the amount under any head can be received by the nominee, but the amount can be claimed by the heirs of the deceased in accordance with law of succession governing them. In other words, nomination does not confer any beneficial interest on the nominee. In the instant case amounts so received are to be distributed according to the Hindu Succession Act, 1956."

8. The third submission of learned counsel for the petitioner in regard to payment of post retiral dues, a letter was issued by the Nagar Nigam Lucknow on 30.11.2012 and on the said basis respondent no.8/ Chhoti filed a Claim Petition No.1046 of 2013 ( Smt. Chhoti Vs. State of U.P. and others) before the State Public Services Tribunal, Indira Bhawan, Lucknow and obtained an order dated 01.02.2021. Thereafter petitioner filed Writ-A No. 1630 of 2022 (Smt. Bilquis Jhan Vs. State Public Service Triunal, Lucknow and others) wherein operation of the order of Tribunal was stayed.Thus,no payment whatsoever of retiral dues was made to respondent no.8.

9. The forth submission of learned counsel for the petitioner is that Smt. Chhoti is not the second wife of late Jameel Ahmad and she has no relation to late Jameel Ahmad and by playing fraud her name was incorporated in the service book of late Jameel Ahmad and on the said basis she has obtained appointment by playing fraud and manipulation.

10. On the other hand, Sri Namit Sharma, learned counsel for Nagar Nigam on the basis of record produced today in Court tried to submit that the respondent no.8 was given appointment on the basis of nomination made in the service book of late Jameel Ahmad. He also submits that Smt. Chhoti is the second wife of late Jameel Ahmad, therefore, she was fully entitled to get appointment on compassionate ground. He also submits that due to non production of succession certificate by her an appointment on the basis of entry in the service book she was considered and was granted appointment, therefore, the appointment does not suffer from any infirmity or illegality and it is just a valid appointment.

11. On a query made to Sri Namit Sharma, learned counsel appearing for Nagar Nigam that once letters were issued to produce succession certificate then what was the circumstances before the opposite party no.8/ Smt. Chhoti the succession certificate was not produced by her. Learned counsel for Nagar Nigam is not able to point out any material to establish that due to some unavoidable circumstances the succession certificate could not be produced by Smt. Chhoti and only on the basis of entry made in the service book appointment on class IV was made on compassionate ground.

12. Sri Amit Chandra, learned counsel for respondent no.8 also adopted the arguments made by learned counsel for the Nagar Nigam. He, however,added that Smt. Bilquis Jahan was divorced by Jameel Ahmad and she was no more wife of late Jameel Ahmad.

13. Sri Namit Sharma, learned counsel for Nagar Nigam further submits that petitioner has lodged an First Information Report dated 24.02.2009 against opposite party no.5/Santosh Kumar which was registered at Case Crime No.158 of 2009 under Sections 420, 463, 467, 468, 471,120-B IPC. at Police Station Hazratganj, District Lucknow against which Santosh Kumar has filed Writ Petition No.2492 of 2009(MB) for quashing the said F.I.R. In the aforesaid writ petition, this Court has been pleased to stay the arrest of Santosh Kumar. However, the said writ petition was finally disposed of on 22.10.2010. Subsequently the final report has been submitted.

14. I have considered the arguments advanced by learned counsel for the petitioner and the respondents.

15. On perusal of the record, it is established that a death certificate of late Jameel Ahmad was issued on 05.07.2002 and an information in regard to death of late Jameel Ahmad was given to Nagar Nigam, Lucknow on 03.07.2002. Smt. Chhoti alleged wife of late Jameel Ahmad had also moved an application for appointment on compassionate ground as well as for the payment of post retiral dues of late Jameel Ahmad. The petitioner also moved an application on 16.07.2002 for grant of appointment on compassionate ground under Rules 1974. A letter dated 22.11.2002 was issued by Regional Health Officer to Smt. Chhoti, alleged wife of late Jameel Ahmad to file succession certificate to get payment of post retiral dues and for consideration of her claim for the appointment on compassionate ground. A letter dated 06.10.2006 was also sent by the Nagar Swasthya Adhikari to the District Magistrate, Lucknow a copy thereof to the petitioner as well as the opposite party no.8 to get the matter inquired into and issue the legal heir certificate. It is admitted case of the respondent no.8 that she had failed to produce the succession certificate before the competent authority. it is also relevant to point out that only on the basis of fraudulent entry in the service book she has obtained appointment in Nagar Nigam.

16. The original service book has been produced by learned counsel for Nagar Nigam before the Court.

17. I have perused the same which also reflects manipulation incorporating the name of Smt. Chhoti in the service book and on the basis of incorporation of nominee in the service book, respondent no.8 could not be treated to be the legal heir of late Jameel Ahmad. The judgment relied upon by the learned counsel for the petitioner also holds the field and does not confer entitlement upon the respondent no.8 to get appointment on the basis of incorporation in the service book.

18. This is a very serious dispute whether she is second wife of late Jameel Ahmad or not. For ready reference, para-10,17 and 18 of the judgment of Hon'ble Supreme Court in the case of Shipra Sengupa (supra) has been quoted hereinabove.

19. In view of the reasons recorded hereinabove, I am of the considered opinion that there was a direction to produce the succession certificate to get payment of post retiral dues of late Jameel Ahmad and without producing the succession certificate, no appointment would have been made due to death of Jameel Ahmad. Therefore, the impugned appointment order dated 27.01.2006 of Smt. Chhoti daugher of Sumer Lal in Nagar Nigam Lucknow on compassionate ground under Rules 1974 in place of late Jameel Ahmad, is hereby quashed.

20. The writ petition succeeds and is allowed.The respondents are directed to get succession certificate from the petitioner and to consider her for appointment on compassionate ground as well as payment of post retiral dues accordingly.

Order Date :- 27.7.2022

dk/