Shamim Khan vs State Of U.P. Thru. Prin. Secy. Food And Civil Supply U.P. Govt., Lko.

A.F.R.
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
WRIT - A No. - 2477 of 2026
Shamim Khan

.....Petitioner(s)
Versus
State Of U.P. Thru. Prin. Secy. Food And Civil Supply U.P.
Govt., Lko.
.....Respondent(s)
Counsel for Petitioner(s) : Ranvijay Singh, Annpurna Devi
Counsel for Respondent(s) : C.S.C.
Court No. - 19
HON'BLE MANISH KUMAR, J.
1. The present writ petition has been preferred by the petitioner for quashing
of the impugned order dated 05.12.2025 whereby the claim of the petitioner
for grant of family pension has been rejected on the ground that as per G.O.
dated 23.12.2016 issued by ' the petitioner being an
वित्त (सामान्य ) अनुभाग -3',
unmarried sister of the deceased employee does not fall within the definition of
the family, though, she was nominated by her deceased brother in his service
book for entitlement of the family pension. Relevant paragraph 7(4) of the
G.O. dated 23.12.2016 as quoted in the impugned order also is quoted
hereinbelow:-
"
वर्ग-1
(
क) विधवा/विधुर, आजन्म अथवा पुनर्विवाह, जो भी पहले हो।
(
ख) पुत्र/पुत्री (विधवा पुत्री सहित) को विवाह/पुनर्विवाह अथवा 25 वर्ष की आयु तक अथवा जीविकोपार्जन की तिथि, जो भी पहले हो,
तक।

वर्ग-2
(
च) अविवाहित/विधवा/तलाकशुदा पुत्री जो वर्ग-1 से आच्छादित नहीं है, को विवाह/पुनविवाह तक अथवा जीविकोपार्जन की तिथि

अथवा मृत्यु की तिथि तक, जो भी पहले हो।
(
छ) ऐसे माता-पिता जो सरकारी सेवक पर उनके जीवनकाल में पूर्णतः आश्रित रहे हो तथा मृत सरकारी सेवक के पीछे कोई विधवा /
विधुर अथवा बच्चे न हो। आश्रित माता-पिला, अविवाहित/तलाकशुदा/विधवा पुत्री को पारिवारिक पेशन जीवनपर्यन्त मिलेगी।
वर्ग-2 से आच्छादित अविवाहित/विधवा/तलाकशुदा पुत्री तथा आश्रित माता-पिला को पारिवारिक पेशन की अनुमन्यता उसी दशा में होगी
जब मृतक के परिवार से उक्त वर्ग-1 में सम्मिलित पात्र व्यक्ति उपलब्ध न हो तथा मृतक सरकारी सेवक के परिवार में ऐसी कोई संतान न
हो, जो विकलांग हो। पारिवारिक पेंशन की अनुमन्यता बच्चों को उनकी जन्म तिथि के क्रम में होगी अर्थात पहले जन्म लिये बच्चे को
अनुमन्यता पहले होगी और उसकी पात्रता समाप्त होने के उपरान्त बाद में जन्म लेने वाले बच्चे की पात्रता स्थापित होगी।"
2. There appears force in the submission of learned counsel for the petitioner

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2
that as per Rule 3 (v) of U.P. Retirement Benefits Rules, 1961 (hereinafter
referred to as 'the Rules, 1961'), the unmarried sister falls within the definition
of family. For convenience, the relevant part of Rule 3(v) is quoted
hereinbelow:-
"(3) 'Family' means the following relative of an officer:-
(v) brothers below the age of 18 years and unmarried and widowed sisters (including step
brothers and step sisters."
3. The averment made in paragraph 8 that the petitioner is the unmarried
sister and paragraph 13 that the Government Order cannot supersede the
statutory provision i.e. in the present case, Rules, 1961 has not been denied
or disputed in para 8 & 9 of the counter affidavit respectively, except placing
reliance upon the same Government Order.
4. The Pension Rules, 1991 are framed in exercise of power under proviso to
Article 309 of the Constitution of India. For convenience, the same is quoted
hereinbelow:-
"309. Recruitment and conditions of service of persons serving the Union or a State -
Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate
the recruitment, and conditions of service of persons appointed, to public services and posts in
connection with the affairs of the Union or of any State:

Provided that it shall be competent for the President or such person as he may direct in the case
of services and posts in connection with the affairs of the Union, and for the Governor [] of a *
State or such person as he may direct in the case of services and posts in connection with the
affairs of the State, to make rules regulating the recruitment, and the conditions of service of
persons appointed, to such services and posts until provision in that behalf is made by or under
an Act of the appropriate Legislature under this article, and any rules so made shall have effect
subject to the provisions of any such Act."
5. Any Rule framed under Article 309 of the Constitution of India cannot be
modified or changed and superseded by issuing Government Order passed by
the State Government. The same can be modified by making amendment in
the Rules made under Article 309 of the Constitution of India not otherwise,
therefore, any Rule framed under Article 309 of the Constitution of India can
only be replaced by an act of an appropriate legislature. It cannot be replaced
or amended by an executive order, as held by Hon'ble Supreme Court in the
case of 'Union of India Vs. S.S. Soma Sundaram Vishwanath' reported in
[AIR 1988 SC 2255], the relevant paragraph of which is quoted hereinbelow:-
"It is well settled that the norms regarding recruitment and promotion of the officer belong to the
Civil Service can be laid down either by a law made by the appropriate Legislature or by the
rules made under the proviso to Article 309 of the Constitution of India or by means of executive
instructions issued in Article 73 of the Constitution of India in the case of Civil Services in the
Government of India and under Article 162 of the Constitution of India in the case of Civil
Services in the State Governments, if there is a conflict between the executive Instructions
and the rules made under the proviso to Article 309 of the Constitution of India the rule

WRIA No. 2477 of 2026
3
made under the proviso to Article 309 of the Constitution of India prevail and if there is a
conflict between the rules made under the proviso to Article 309 of the Constitution of
India and the law made by the appropriate Legislature, the latter prevails." (emphasis
added)
6. Similarly in case of 'Paluru Ram Krishnaiah Vs. Union of India' reported
in [AIR 1990 SC 166] , comparing rules framed under Article 309 and
executive instructions, the Court held:-
"It is thus apparent that an executive instruction could make a provision only with regard to
matter which was not covered by the Rules and that such executive instruction could not
override any provision of the Rule. "
7. Further in paragraph-3 of the judgment passed in case of 'K. Kuppusamy
and Another Vs. State of T.N. and Others' reported in [(1998) 8 SCC 469] ,
the Court held:-
"3. The short point on which these appeals must succeed is that the Tribunal fell into an error in
taking the view that since the Government had indicated its intention to amend the relevant
rules, its action in proceeding on the assumption of such amendment could not be said to be
irrational or arbitrary and, therefore, the consequential orders passed have to be upheld. We are
afraid this line of approach cannot be countenanced. The relevant rules, it is admitted, were
framed under the proviso to Article 309 of the Constitution. They are statutory rules. Statutory
rules cannot be overridden by executive orders or executive practice . Merely because the
Government had taken a decision to amend the rules does not mean that the rule stood
obliterated. Till the rule is amended, the rule applies. Even today the amendment has not been
effected. As and when it is effected ordinarily it would be prospective in nature unless expressly
or by necessary implication found to be retrospective. The Tribunal was, therefore, wrong in
ignoring the rule."
8. In paragraph-25 of the judgment passed in case of 'B.N. Nagarajan and
others etc. Vs. State of Karnataka and Others etc' reported in [AIR 1979
SC 1676: (1979) 4 SCC 507], the Court held:-
"25........In other words, the regularisation order, in colouring the appointments of promotees as
Assistant Engineers with permanence would run counter to the rules framed under Article 309 of
the Constitution of India. What could not be done under the three sets of Rules as they stood,
would thus be achieved by an executive fiat. And such a course is not permissible because
an act done in the exercise of the executive power of the Government, as already stated,
cannot override rules framed under Article 309 of the Constitution. " (emphasis added)
9. In paragraph-14 of the judgment passed by Hon'ble Supreme Court in case
of 'Ajaya Kumar Das vs. State of Orissa' reported in [(2011) 11 SCC 136],
the Court held:-
"14. Neither the Circular dated 18-06-1982 nor the subsequent Circular dated 19-3-1983
modifying the earlier Circular dated 18-6-1982 can override the statutory provision contained in
Rule 74(b) of the Code if it results in reduction of pay of the employee on promotion. That the
Orissa Service Code has been framed under Article 309 of the Constitution of India is not in

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dispute. It is well settled that Statutory Rules framed under Article 309 of the Constitution can be
amended only by a Rule or Notification duly made under Article 309 and not otherwise.
Whatever be the efficacy of the executive orders or circulars or instructions, statutory rules
cannot be altered or amended by such executive orders or circulars or instructions nor can they
replace the statutory rules. The Rules made under Article 309 of the Constitution cannot be
tinkered by the administrative Instructions or Circulars. "
10. In view of the facts, circumstances and discussion made hereinabove and
the judgments of Hon'ble Supreme Court referred hereinabove, the impugned
order dated 05.12.2025 is hereby quashed and a writ of mandamus is issued
directing the respondent/Principal Secretary, Food and Supply, Govt. of U.P,
Lucknow to pass an order for payment of pension to the petitioner along with
arrears with interest @ 6 per cent per annum w.e.f. 15.05.2024 the date on
which the brother of the petitioner had expired, till actual payment is made.
11. The said exercise be completed within a period of six weeks from the date
of production/receipt of certified copy of this order.
12. In the result, the writ petition is allowed.
October 23, 2026
Nitesh
(Manish Kumar,J.)
Digitally signed by :-
NITESH KUMAR TEWARY
High Court of Judicature at Allahabad,
Lucknow Bench