Seema Devi vs State Of U.P. And 2 Others
2021 Latest Caselaw 11130 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										       AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 12665 of 2021
 

 
Petitioner :- Seema Devi
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Manoj Kumar Patel
 
Counsel for Respondent :- C.S.C.,Dharmendra Pratap Singh
 

 
Hon'ble Yashwant Varma,J.

Heard learned counsel for the petitioner and Sri Chandan Kumar learned Standing Counsel for the State respondents.

The present petition challenges an order of 24 May 2021 pursuant to which the respondents have proceeded to reject the application of the petitioner for being accorded appointment on compassionate grounds holding that a divorced daughter would not fall within the ambit of the 1974 Rules.  The petitioner questions the correctness of that view taken firstly on the ground that under the 1974 Rules the expression "unmarried" as prefixed to the word "daughter" already stands struck down by the Court in Smt. Vimla Srivastava v. State of U.P. and Another1. According to learned counsel, the definition of family as employed in the 1974 Rules is thus liable to be read as encompassing daughters per se of the deceased government servant. Additionally, learned counsel for the petitioner draws the attention of the Court to the decision of the Court in  State of U.P. And Others v. Noopur Srivastava2 wherein it was specifically held that a divorced daughter would fall within the ambit of the 1974 Rules. Dealing with that question the Division Bench in Noopur Srivastava held thus:-

"23. Further, under Rule 2 (c) of Rules of 1974 there is no express exclusion that a "divorced daughter" is not entitled to appointment under the Rules nor the expression "Unmarried" daughter has been clarified by putting the words to the effect that it means a "daughter never married" or "daughter not married" and being so the secondary meaning of term "Unmarried" cannot be ignored and is liable to be taken into account in the given circumstances in context of beneficial legislation i.e. Rules of 1974.

24.On the basis of aforesaid discussion in the context of Rules of 1974, we hold that the expression "divorced daughter" is included/implicit in the expression "Unmarried daughter". Accordingly we hold that a "divorced daughter" is entitled to compassionate appointment if she was dependant, on the date of death of her father/mother (the employee) and the marriage was dissolved legally either prior to or after the date of death of bread earner of the family and she remains "not married" at the time of appointment.

25.In addition, the judgment dated 4.7.2011 passed in Writ Petition No. 2707 (SS) of 2004 (Gudiya Awasthy v. State of U.P. was challenged in the Special Appeal No. 19 of 2012 and this Court vide judgment dated 4.9.2018 has set aside the judgement dated 04.07.2011 and being so, no reliance can be placed on the judgment dated 04.07.2011 as the effect of setting aside a judgment in the eye of law is that, the judgment which has been set aside is not in existence and a judgment/order by which the judgment is set aside would be the operative decision in the case. According to doctrine/principle of "merger" original decision merges in appellate decision. The logic underlying the doctrine of merger is that there cannot be more than one decree or order governing the same subject matter at a given point of time. Thus, judgment dated 04.07.2011 passed in Gudiya Awasthy's case is liable to be ignored and argument based on the same are not sustainable and liable to be rejected."

Sri Chandan Kumar learned Standing Counsel, on the other hand, drew the attention of the Court to a recent decision of the Supreme Court in The Director of Treasuries in Karnataka And Another v. V. Somyashree3 to contend that the aforesaid decision of the Supreme Court is a binding authority in support of the proposition that a divorced daughter cannot claim benefits of compassionate appointment.

It is these rival submissions which fall for consideration. Before proceeding to consider the merits of the submission of the State resting on V. Somyashree, it would be appropriate to briefly advert to the legal position as enunciated by this Court dealing with the provisions of the 1974 Rules.

It may at the outset be noted that insofar as our 1974 Rules are concerned, the question posited stands answered in unequivocal terms in favour of the petitioner in light of the decision in Noopur Srivastava.  The Division Bench has taken into consideration the fact that Rule 2(c) does not expressly exclude a divorced daughter. The Court proceeded to hold that a divorced daughter would implicitly fall within the expression "unmarried daughter". It becomes relevant to note that under the 1974 Rules as they stood at the time of introduction of the Eighth Amendment to those Rules [published on 9 February 2007], only unmarried and widowed daughters stood included in the definition of family. Subsequently and in terms of the Ninth Amendment to those Rules [published on 22 December 2011], unmarried daughters, unmarried adopted daughters, widowed daughters and widowed daughters-in-law were brought within the sweep of the expression "family". Rule 2 (c ) in its form as noticed above was what fell for consideration in Vimla Srivastava. In order to understand the import and essence of that decision, the Court deems it apposite to refer to the following extracts:-

9.....The invidious discrimination that is inherent in Rule 2 (c) lies in the fact that a daughter by reason of her marriage is excluded from the ambit of the expression ''family''. Her exclusion operates by reason of marriage and, whether or not she was at the time of the death of the deceased Government servant dependent on him. Marriage does not exclude a son from the ambit of the expression ''family''. But marriage excludes a daughter. This is invidious. A married daughter who has separated after marriage and may have been dependent on the deceased would as a result of this discrimination stand excluded. A divorced daughter would similarly stand excluded. Even if she is dependent on her father, she would not be eligible for compassionate appointment only because of the fact that she is not ''unmarried''. The only basis of the exclusion is marriage and but for her marriage, a daughter would not be excluded from the definition of the expression ''family''.  

The Court then went on to hold:-

The issue before the Court is whether marriage is a social circumstance which is relevant in defining the ambit of the expression ''family'' and whether the fact that a daughter is married can constitutionally be a permissible ground to deny her the benefit of compassionate appointment. The matter can be looked at from a variety of perspectives. Implicit in the definition which has been adopted by the state in Rule 2 (c) is an assumption that while a son continues to be a member of the family and that upon marriage, he does not cease to be a part of the family of his father, a daughter upon marriage ceases to be a part of the family of her father. It is discriminatory and constitutionally impermissible for the State to make that assumption and to use marriage as a rationale for practicing an act of hostile discrimination by denying benefits to a daughter when equivalent benefits are granted to a son in terms of compassionate appointment. Marriage does not determine the continuance of the relationship of a child, whether a son or a daughter, with the parents. A son continues to be a son both before and after marriage. A daughter continues to be a daughter. This relationship is not effaced either in fact or in law upon marriage. Marriage does not bring about a severance of the relationship between a father and mother and their son or between parents and their daughter. These relationships are not governed or defined by marital status. The State has based its defence in its reply and the foundation of the exclusion on a paternalistic notion of the role and status of a woman. These patriarchal notions must answer the test of the guarantee of equality under Article 14 and must be held answerable to the recognition of gender identity under Article 15. 

The fundamental precept which forms the foundation of Vimla Srivastava is of the daughter being constitutionally empowered to avail of the same benefits as would extend to a son. The Court, as a corollary to the above, held that a daughter cannot be denied rights and benefits flowing from the 1974 Rules merely based on the circumstance of marriage. More importantly and for the purposes of the present matter, it becomes pertinent to highlight that while expounding upon the various circumstances where the statutory definition would result in invidious discrimination, the Court specifically took note of a situation where a daughter separated after marriage, may have been staying with her parents and was financially dependent upon them.

The principles as enunciated in the aforesaid two decisions would clearly establish that a divorced daughter cannot be denied the benefits enshrined in the 1974 Rules. That takes the Court to consider the impact of the decision of the Supreme Court in V. Somyashree.

It becomes pertinent to note that in the aforesaid decision, the Supreme Court was dealing with the provisions made in Rules 2 and 3 of the Karnataka Civil Services (Appointment on compassionate Grounds) Rules 19964. Rule 2 of the 1996 Rules defined the word "dependent" in the following terms:- 

"2. Definitions:(1) In these rules, unless the context otherwise requires:

(a) "Dependent of a deceased Government servant" means-

(i) in the case of deceased male Government servant, his widow, son, (unmarried daughter and widowed daughter) who were dependent upon him; and were living with him; and

(ii) in the case of a deceased female Government servant, her widower, son, (unmarried daughter and widowed daughter) who were dependent upon her and were living with her;

(iii) 'family' in relation to a deceased Government servant means his or her spouse and their son, (unmarried daughter and widowed daughter) who were living with him.

(2) Words and expressions used but not defined shall have the same meaning assigned to them in the Karnataka Civil Services (General Recruitment) Rules, 1977."

The Supreme Court thereafter proceeded to hold as follows:-

"8.1 From the aforesaid rules it can be seen that only 'unmarried daughter' and 'widowed daughter' who were dependent upon the deceased female Government servant at the time of her death and living with her can be said to be 'dependent' of a deceased Government servant and that 'an unmarried daughter' and 'widowed daughter' only can be said to be eligible for appointment on compassionate ground in the case of death of the female Government servant. Rule 2 and Rule 3 reproduced hereinabove do not include 'divorced daughter' as eligible for appointment on compassionate ground and even as 'dependent'. As observed hereinabove and even as held by this Court in the case of N.C. Santhosh (Supra), the norms prevailing on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment. The word 'divorced daughter' has been added subsequently by Amendment, 2021. Therefore, at the relevant time when the deceased employee died and when the original writ petitioner- respondent herein made an application for appointment on compassionate ground the 'divorced daughter' were not eligible for appointment on compassionate ground and the 'divorced daughter' was not within the definition of 'dependent'."

In order to ascertain the ratio of V. Somyashree, it becomes important to note that the same essentially turned upon the language employed in Rule 2(a) of the Karnataka Rules which only brought an unmarried and widowed daughter within their scope and the ambit of the scheme for compassionate appointment. It was in the aforesaid backdrop and since a divorced daughter had not been specifically added in the definition of "dependent" that the Supreme Court upheld the contention that a divorced daughter could not be extended the benefits of compassionate appointment.  The decision is also liable to be viewed in the context of the 2021 amendment which was introduced in the Karnataka Rules in terms of which a divorced daughter was specifically included in the definition of "dependent" subsequently. The Supreme Court thus came to conclude that since a divorced daughter did not stand included in the definition of dependent at the time when the government servant died and the application was made, appointment on compassionate grounds could not be claimed.

Regard must also be had to the fact that the 1974 Rules post the decision in Vimla Srivastava, are liable to be interpreted with the Court necessarily proceeding on the basis that the word "unmarried" stands deleted and effaced. In light of the judicial declaration of invalidity, it would be deemed to have never existed on the statute book. Viewed in that light also it is manifest that the decision of the Supreme Court in V. Somyashree is clearly distinguishable since there the Court was called upon to render judgment in light of the Karnataka Rules as they stood and in the absence of any challenge to the constitutional validity of those provisions.

The undisputed position which thus emerges from the aforesaid discussion is that consequent to the expression "unmarried" as appearing in Rule 2 (c) being struck down by this Court as constitutionally invalid, "daughters" per se, irrespective of whether they were married or divorced, would be entitled to be recognised as being entitled to claim the benefit of the 1974 Rules. This, of course, subject to the well accepted caveat that they would, like sons, have to establish a position of financial dependency at the time of the untimely demise of the government servant. In light of the position in law as found by the Court, learned Standing Counsel submitted that the ends of justice would merit the matter being remitted to the third respondent to consider the claim of the petitioner afresh.

Accordingly the writ petition is allowed.  The impugned order of 24 May 2021 is hereby quashed. The matter shall stand remitted to the third respondent for considering the claim of the petitioner afresh. It is only clarified that this Court has interfered with the impugned order solely on the grounds and for the reasons noted above. All other aspects germane to the consideration of grant of compassionate appointments which would include consideration of factors such as a situation of financial despondency as well as the petitioner being dependent of the deceased government servant are left open to be considered independently by the respondents.

Order Date :- 23.9.2021

Faraz

(Yashwant Varma, J.)