Pooja Yadav vs State Of U.P.Thru Prin.Secy. ...
2019 Latest Caselaw 6276 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 20
 

 
Case :- SERVICE SINGLE No. - 20802 of 2019
 

 
Petitioner :- Pooja Yadav
 
Respondent :- State Of U.P.Thru Prin.Secy. State Industrial Developmet&Ors
 
Counsel for Petitioner :- Vashu Deo Mishra,Santosh Kumar Mishra
 
Counsel for Respondent :- C.S.C.,Abha Singh
 

 
Hon'ble Abdul Moin,J.

1. Heard learned counsel for the petitioner, learned Standing Counsel appearing for respondent no. 1 and Sri Manoj Sahu, Advocate, who files Vakalatnama on behalf of respondent nos. 2 and 3.

2. With the consent of learned counsel for the parties, the writ petition is finally decided at the admission stage.

3. The petitioner, a married daughter, is before this Court challenging the impugned order dated 30.07.2019 by which her claim for being appointed on compassionate ground has been rejected by the respondents. The ground indicated in the impugned order is that in terms of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (for short, '1974 Rules') there is no provision for appointment of a married daughter. It has also been indicated that there is no notification issued by the State Government for the purpose of bringing in the married daughter within the ambit of 'family' as provided under 1974 Rules.

4. Learned counsel for the petitioner contends that this aspect of the matter has already been considered by a Division Bench of this Court in the case of Neha Srivastava vs. State of U.P. and another passed in Special Appeal Defective No.863 of 2015 decided on 23.12.2015, wherein the Division Bench after considering the earlier Division Bench judgment in the case of Smt. Vimla Srivastava vs. State of U.P. and another passed in Writ Petition No.60881 of 2015 decided on 04.12.2015 has noted that the exclusion of married daughters from the ambit of the expression 'family' in Rule 2(c) of 1974 Rules is illegal and unconstitutional being violative of Articles 14 and 15 of the Constitution of India and also noted that the word 'unmarried' was struck down by the Court in Rule 2(c) (iii) of the 1974 Rules with a further direction to the respondents to consider the claim of married daughter on the basis of all relevant facts and circumstances of the case. The judgment of Neha Srivastava (supra) has been affirmed by the Apex Court with the dismissal of Special Leave to Appeal (C) No.22646 of 2016 decided on 23.07.2019. Thus, placing reliance on the judgments of Neha Srivastava (supra) and Smt. Vimla Srivastava (supra), it is contended that the impugned order dated 03.07.2019 which rejects the claim of the petitioner on the ground of married daughter not being covered under the provisions of 1974 Rules is liable to be set-aside.

5. On the other hand, Sri Manoj Sahu, learned counsel for respondent nos. 2 and 3, submits that once 1974 Rules do not contain any provision for inclusion of a married daughter consequently the impugned order dated 03.07.2019 has been correctly passed by the respondents.

6. Having heard learned counsel for the contesting parties and having perused the records, what clearly comes out is that the respondents have proceeded to reject the claim of the petitioner for being appointed on compassionate ground solely on the ground that 1974 Rules as amended by 2011 amendment do not contain any provision for consideration of the case of a married daughter as a married daughter does not fall within the ambit of "family" as defined in Rule 2(c) of 1974 Rules. However, this aspect of the matter has already been considered by a Division Bench of this Court in the case of Neha Srivastava(supra) considering the earlier Division Bench judgment in the case of Smt. Vimla Srivastava(supra). The Division Bench of this Court after considering the provisions has held as under:-

"Learned counsel for the petitioner, in support of his submissions, has placed reliance in the judgment passed by the Division Bench of this Court in Writ Petition No.60881 of 2015 (Smt. Vimla Srivastava v. State of U.P. & Anr.) decided on 04.12.2015 in which Hon'ble the Division Bench had proceeded to allow the claim of the married daughter for compassionate appointment and held that the exclusion of married daughters from the ambit of the expression "family" in Rule 2 (c) of the Dying-in-Harness Rules is illegal and unconstitutional, being violative of Art.14 and 15 of the Constitution. The relevant paragraphs of the judgment is reproduced hereunder:-

"We are in respectful agreement with the view which has been expressed on the subject by diverse judgments of the High Courts to which we have made reference above.

During the course of submissions, our attention was also drawn to the judgment rendered by a learned Single Judge of this Court in Mudita vs. State of U.P.13. The learned Single Judge while proceeding to deal with an identical issue of the right of a married daughter to be considered under the Dying-in-Harness Rules observed that a married daughter is a part of the family of her husband and could not therefore be expected to continue to provide for the family of the deceased government servant. The judgment proceeds on the premise that marriage severs all relationships that the daughter may have had with her parents. In any case it shuts out the consideration of the claim of the married daughter without any enquiry on the issue of dependency. In the view that we have taken we are unable to accept or affirm the reasoning of the learned Single Judge and are constrained to hold that Mudita does not lay down the correct position of the law.

In conclusion, we hold that the exclusion of married daughters from the ambit of the expression "family" in Rule 2 (c) of the Dying-in-Harness Rules is illegal and unconstitutional, being violative of Articles 14 and 15 of the Constitution.

We, accordingly, strike down the word 'unmarried' in Rule 2 (c) (iii) of the Dying-in-Harness Rules.

In consequence, we direct that the claim of the petitioners for compassionate appointment shall be reconsidered. We clarify that the competent authority would be at liberty to consider the claim for compassionate appointment on the basis of all the relevant facts and circumstances and the petitioners shall not be excluded from consideration only on the ground of their marital status.

The writ petitions shall, accordingly, stand allowed. There shall be no order as to costs."

Shri Sanjay Kumar Singh, learned Standing Counsel has tried to defend the order passed by learned Single Judge on the ground that the order has been passed by learned Single Judge on 27.10.2015 and at the relevant pointed of time as per the definition of Rule 2 (c) of the Rules of 1974 the married daughter was excluded from the definition of 'family' for the purposes of compassionate appointment. It is submitted that learned Single Judge has rightly proceeded and passed the order, which was applicable at the relevant point of time.

Heard rival submissions and perused the record.

As indicated above, the coordinate Bench of this Court in Smt. Vimla Srivastava v. State of U.P. & Anr. (Supra) while proceeding with the matter had held that the exclusion of married daughters from the ambit of expression "family" in Rule 2 (c) of the Dying-in-Harness Rules is illegal and unconstitutional, being violative of Articles 14 and 15 of the Constitution. The Court had also struck down the word 'unmarried' in Rule 2 (c) (iii) of the Dying-in-Harness Rules and proceeded to direct the respondent authorities to consider the claim of the applicant on the basis of all relevant facts and circumstances and directed that her right could not be excluded from consideration only on the ground of their marital status.

As the coordinate Bench of this Court has also decided the question, the same is binding on us and holds the field. The judicial propriety demands that the same view be followed by the coordinate Benches.

In view of the aforesaid facts and circumstances, the order impugned passed by learned Single Judge cannot sustain and is accordingly set aside. Consequently, it is directed that the competent authority would be at liberty to consider the claim for compassionate appointment of the petitioner on the basis of all the relevant facts and circumstances and the petitioner shall not be excluded from consideration for compassionate appointment only on the ground of her marital status.

The special appeal is allowed accordingly. "

The aforesaid judgment has also been affirmed by the Apex Court with the dismissal of the Special Leave to Appeal (C) No.22646 of 2016 filed by the State Government against the judgment of Neha Srivastava.

7. When the impugned order dated 03.07.2019 is seen in the light of the law laid down by the Division Bench of this Court in the case of Neha Srivastava (supra) what clearly comes out is that the impugned order rejecting the claim of the petitioner for compassionate appointment on the ground of married daughter not being included in the definition of family as defined in Rule 2(c) of 1974 Rules is clearly unsustainable in the eyes of law.

8. Accordingly, the writ petition is allowed. A writ of certiorari is issued quashing the order dated 03.07.2019, a copy of which is Annexure-1 to the petition. A writ of mandamus is issued commanding the respondent no.3 to consider the case of the petitioner for compassionate appointment on the basis of all relevant facts and circumstances of the case and the petitioner shall not be excluded from consideration for compassionate appointment only on the ground of her marital status. The said consideration would be done within a period of three months from the date of receipt of a certified copy of this order.

Order Date :- 1.8.2019

A. Katiyar