Priti Niranjan vs State Of U.P. And 2 Others
2022 Latest Caselaw 511 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 33
 

 
Case :- WRIT - A No. - 3578 of 2022
 

 
Petitioner :- Priti Niranjan
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Jitendra Kumar Ravat
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

Heard Mr. Jitendra Kumar Rawat, learned counsel for the petitioner and the learned Standing Counsel for the State-respondents.

This writ petition has been filed interalia for the following relief:-

"a) Issue a writ, order or direction in the nature of certiorari quashing the order dated 10.01.2022 passed by Executive Engineer, Nalkoop Khand-It Orai (Respondent No.3) by which he reject the claim of the petitioner for compassionate appointment on the ground of delay.

b). Issue a writ order or direction in the nature of mandamus commanding the respondents to re-consider the claim of the petitioner and provide the compassionate appointment to the petitioner under the dying and harness rules by treating the application of the petitioner within time.

......."

It is the case of the petitioner that the father of the petitioner, namely, Anantram was working as Nalkoop Chalak and when he was posted on the said post in the office of Executive Engineer, Nalkoop Khand-I, Orai, he expired on 22nd December, 2013 during harness. After death, Anantram left behind his wife and two daughters including the petitioner. Since the elder sister of the petitioner was already married and was living with her in-laws, therefore, was not dependent at the time of death of her father. The petitioner and her mother are fully dependent upon the deceased employee i.e. her father. The marriage of the petitioner was also performed with one Brijesh Verma but due to strained and incompatible relationship between the petitioner and her husband, she took divorce from her husband after three years of her marriage. Therefore, after divorce, the petitioner being fully dependent upon her father i.e. deceased employee, made an application on 21st May, 2018 before respondent no.3 for appointment on compassionate ground under dying-in-harness rules along with no objection certificate of her mother i.e. wife of the deceased employee in form of an affidavit. The said application has been made within five years from the date of death of the father of the petitioner. When the said application has not been considered, she made several representations before respondent no.3, the last being dated 7th February, 2020. Ultimately, the petitioner approached this Court by means of Writ-A No. 2695 of 2021 (Priti Niranjan Vs. State of U.P. & Others) for consideration of her claim for appointment on compassionate ground and the Writ Court vide order dated 23rd February, 2021, on the undertaking given by the learned Standing Counsel that the claim of the petitioner shall be considered in accordance with law within four months from the date of the said order, disposed of the said writ petition. Pursuant to the order dated, respondent no. 3 has passed the order dated 10th January, 2022 rejecting the claim of the petitioner for appointment on compassionate ground. It is against this order that the present writ petition has been filed.

Learned counsel for the petitioner submits that respondent no.3 without examining the claim of the petitioner properly and without examining Rule-2 (c) of Dying-in-Harness Rules, 1974, has rejected the claim of the petitioner for appointment on compassionate ground while passing the order impugned on two grounds, namely, (i) more than five years have elapsed between the date of death of the father of the petitioner i.e. 22nd November, 2013 and the date of Government Order i.e. 12th November, 2021, wherein it has been provided that the married daughter of a deceased employee is also entitled for appointment on compassionate ground, therefore, the same is not applicable in the case of the petitioner and (ii) the petitioner being the married daughter of deceased employee is not included under the definition of family as per Dying-in-Harness Rules, 1974, which is per se illegal.

So far as the second ground taken in the order impugned rejecting the claim of the petitioner that the petitioner being married daughter is not included in the list of family of a deceased employee under Dying -in-Harness Rules, 1974 is concerned, learned counsel for the petition submits that the word "married" as included in the family of a deceased employee in Rule 2 (c) of Rules, 1974 has already been struck down by a Division Bench of this Court in the case of Smt. Vimla Srivastava & Others Vs. State of U.P. & Others reported in Law (All) 2015-12-60, which has been followed by another Division Bench of this Court in Smt. Uma Vs. State of U.P. & Another (Special Appeal No. 268 of 2016) decided on 12the April, 2016 and the same has attained finality. Further, a Writ-Court vide judgment and order dated 15th December, 2020 in Writ-A No. 10928 of 2020 (Manjul Srivastava Vs. State of U.P. & Others), after relying upon the aforesaid Division Bench judgments of this Court, has opined that a married daughter is also entitled for appointment on compassionate ground. He therefore, submits that the second ground taken in the order impugned has no legs to stand.

So far as the first ground taken in the order impugned in rejecting the claim of the petitioner on the ground that since more than five years have elapsed between the date of death of the father of the petitioner and the introduction of the Government Order dated 12th November, 2021, the claim of the petitioner cannot be considered, is concerned, learned counsel for the petitioner submits that since the word "married" as included in the family of a deceased employee in Rule 2 (c) of Rules, 1974 has already been struck down by a Division Bench of this Court in the case of Smt. Vimla Srivastava & Others (Supra), which has been followed by another Division Bench of this Court in Smt. Uma Vs. State of U.P. & Another (Special Appeal No. 268 of 2016) decided on 12th April, 2016 and the same has also attained finality with the dismissal of the Special Leave Petition 22646 of 2016 (The State of U.P. & Another Vs. Neha Srivastava) by the Apex Court on 23rd July, 2019, the applicability of Government Order dated 12th November, 2021 does not arise in the case of the petitioner. Learned counsel for the petitioner, therefore, submits that the first ground taken under the order impugned has also no legs to stand.

On the cumulative strength of the aforesaid, learned counsel for the petitioner submits that the the order impugned is liable to be quashed.

On the other-hand, learned Standing Counsel submits that there is no illegality in the order impugned, but he could not dispute the submissions made by the learned counsel for the petitioner.

I have heard learned counsel for the parties and have gone through the records of the present writ petition.

This Court finds substance in the submission made by the learned counsel for the petitioner on the first issue that respondent no.3 has taken hyper technical view in rejecting the claim of the petitioner.

So far as the second submission made by the learned counsel for the petitioner is concerned, this Court also finds substance in the same. A Division Bench of this Court in the case of Smt. Vimla Srivastava (Supra) has already struck down by the word "married" from the definition of family of a deceased employee in Rule 2 (c) of Rules, 1974. The said judgment has also been followed by another Division Bench of this Court in the case of Smt. Neha Srivastava (Supra), which has been attained finality after the dismissal of the Special Leave Petition No. 22646 of 2016 filed by the State of Uttar Pradesh against the said Division Bench judgment in the case of Smt. Neha Srivastava (Supra) vide order dated 23rd July, 2019 referred to above. The relevant portion of the Division Bench judgment of this Court in the case of Smt. Vimla Srivastava (Supra) reads 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 Dyingin-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."

For ready reference, the relevant portion of the another Division Bench judgment of this Court in the case of Smt. Neha Srivastava (Supra) is also being quoted herein below:

"Consequently, judgment dated 04.12.2015 passed in the case of Vimla Srivastava (Supra), on subsequent occasion by coordinate bench of this Court has to be followed by us based on judicial discipline, and learned Standing counsel has informed us that said judgement is holding the field till today as validity of the same has not been challenged before Apex Court and there is no interim order operating, we proceed to pass order directing therein that in case appellant-petitioner applies for consideration of her claim for grant of compassionate appointment, then same be examined and her claim should not be non-suited on the ground that she is married daughter of deceased, however at the point of time of consideration of her claim, dependency should also be looked into as to whether she was really dependant or it is a pretence to get compassionate appointment, apart from other relevant considerations for grant of compassionate appointment including the fact of status of her husband preferably within three months from the date of presentation of certified copy of the order passed by this Court."

Apart from the above, this Court also observes that A Writ-Court vide judgment and order dated 15th December, 2020 in Writ-A No. 10928 of 2020 (Manjul Srivastava Vs. State of U.P. & Others), after relying upon the aforesaid Division Bench judgments of this Court, has opined that a married daughter is also entitled for appointment on compassionate ground.

To the first ground taken by respondent no.3 under the order impugned, this Court is of opinion that it is no doubt true that the application has been made by the petitioner within five years i.e. on 21st May, 2018 from the date of death of her father i.e. 22nd December, 2013. The first ground taken for rejecting the claim of the petitioner on the ground that more than five years have elapsed between the date of death of the father of the petitioner i.e. 22nd December, 2013 and the introduction of the Government Order dated 12th November, 2021, wherein it has been provided that the married daughter of a deceased employee is also entitled for appointment on compassionate ground, does not arise, as the word "married" has already been struck down by a Division Bench of this Court in the case of Smt. Vimla Srivastava (Supra) from Dying-in-Harness Rules, 1974.

In view of the aforesaid, this Court finds that the order impugned passed by respondent no.3 dated 10th January, 2022 cannot be legally sustained and hereby set aside. This matter is remitted back to respondent no.3 for decision afresh. While considering this matter afresh, respondent no.3 shall pass a reasoned and speaking order, in light of the observations made herein and the law applicable, preferably within a period of two months from a date of production of a certified copy of this order.

The present writ petition is allowed subject to the observations made above.

(Manju Rani Chauhan, J.)

Order Date :- 6.4.2022

Sushil/-