Allahabad High Court
Kajal vs State Of U P And 2 Others on 27 January, 2021
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 34
Case :- WRIT - A No. - 709 of 2021
Petitioner :- Kajal
Respondent :- State Of U P And 2 Others
Counsel for Petitioner :- Ravendra Singh,Krishnaji Khare
Counsel for Respondent :- C.S.C.
Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner and Sri Birendra Pratap Singh, the learned Standing Counsel for the State respondents.
The petitioner is aggrieved by the order of 09 October 2020 pursuant to which the respondent No. 3 has negatived the claim of the petitioner for being accorded compassionate appointment. The first ground which has been taken is that the application for grant of compassionate appointment was made five years after the death of the government employee. The second ground taken is that the petitioner was the married daughter and would thus not be entitled for consideration under the U.P. Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974. Before this Court, it is fairly conceded by the respondents that neither of the reasons assigned to reject the claim of the petitioner would sustain.
Undisputedly, the period of five years which is prescribed under the 1974 Rules, is not a rule of limitation. It merely prescribes that where an application is made after the expiry of the period of five years, the matter would have to be remitted to the competent authority in the State Government to consider whether circumstances warrant the benefits of compassionate appointment being extended. It does not provide for the rejection of an application merely because it comes to be made five years after the death of the government servant.
Insofar as the question of a married daughter being entitled to the benefits of the 1974 Rules is concerned, it is conceded that the same stands settled in light of the declaration of law in Smt. Vimla Srivastava Vs. State of U.P. And Another [Writ Petition No. 60881 of 2015 decided on 04.12.2015]. In that decision the Division Bench upon due consideration of the Rules held as follows:
"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."
Following the decision in Vimla Srivastava, a Division Bench of the Court in Neha Srivastava Vs. State of U.P. And Another [Special Appeal Defective No. 863 of 2015, decided on 23.12.2015] observed as follows:
"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 decision rendered in Neha Srivastava was taken in appeal by the State. The Supreme Court has dismissed the S.L.P. In terms of its order of 23 July 2019. The judgment in Neha Srivastava has consequently attained finality. Before the Court, the respondents also do not refer to any appeal that may have been preferred against the decision rendered in Vimla Srivastava or any order of the Supreme Court in terms of which the operation of that judgment may have been stayed. Consequently, the declaration entered in that decision striking down Rule 2(3)(iii) clearly applies and the order impugned cannot be sustained.
In view of the aforesaid, it was submitted that the ends of justice would merit the impugned order being set aside and the matter being remitted to the third respondent for consideration afresh.
Accordingly, the writ petition is allowed. The impugned order dated 09 October 2020 passed by the third respondent is hereby quashed and set aside. The matter shall be remitted to that respondent to consider the claim of the petitioner afresh bearing in mind the observations entered hereinabove. The claim of the petitioner shall be attended to and disposed of with expedition and preferably within a period of three months from today. The Court only clarifies that the claim of the petitioner has been evaluated only on the basis of the reasons assigned in the impugned order. Consequently, all other contentions of respective parties are kept open.
Order Date :- 27.1.2021
Arun K. Singh
(Yashwant Varma, J.)
