Smt Kiran vs State Of U.P. And 3 Others
2022 Latest Caselaw 21586 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 37
 

 
Case :- WRIT - A No. - 11196 of 2022
 

 
Petitioner :- Smt Kiran
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Pratik Srivastava,Abhishek Bhushan,Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Abhishek Srivastava,Krishna Agarawal
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

(Oral)

1. Heard learned counsel for the petitioner and Shri Abhishek Srivastava, learned counsel for the contesting respondents.

2. This petition has been filed challenging the order dated 25.06.2022 passed by the respondent no. 3 rejecting the petitioner's application for compassionate appointment.

3. It is the case of the petitioner that her father late Girish Chandra was a Class III employee working in the office of respondent no. 3 and he died in harness on 15.09.2020, he was survived by his widow and two daughters and a son. The petitioner is the second daughter, the first daughter is married to a government employee working in Amroha and the son Amit Kumar is a government employee posted in Moradabad. Late Girish Chandra was a permanent resident of Moradabad and therefore when he died his widow started living in Moradabad. The petitioner is married in Moradabad and living with her in-laws but her husband Rahul Kumar is un-employed. The petitioner's mother started living with the petitioner and her husband and in-laws after the death of her father and she has been looking after the widowed mother and therefore, she is entitled for appointment on compassionate ground.

4. The petitioner filed an application for compassionate appointment on 22.04.2022 saying that she is a Graduate and has "CCC" certificate and therefore, eligible for appointment on Class III post, when the petitioner's representation was not decided, she again made a representation this time to the Chief Engineer and also to the Chairman of the Corporation. Now, the representation of the petitioner has been rejected by the respondent No. 3, the Executive Engineer, Electricity Distribution Division, Bijnor on 25.06.2022 by a non speaking order without considering that even a married daughter is entitled for compassionate appointment, but by only stating that such a appointment cannot be given to the petitioner in view of the Circular dated 05.07.2012 issued by the Corporation.

5. It has been submitted by the counsel for the petitioner that Dying in Harness Rules, 1974 applicable to U.P. Government Servants and their Dependents was amended in the year 2021 on the basis of judgment rendered by this Court and confirmed by the Supreme Court and now even a married daughter is included within the definition of family.

6. The counsel for the respondent Nos. 2 to 4 have filed a counter affidavit wherein they have denied the petitioner's right for compassionate appointment saying that the petitioner is married daughter and residing at her matrimonial home and her brother is a government employee and her sister is also married to a government employee. Only because the mother of the petitioner has started living with the petitioner and the petitioner's husband in unemployed, it cannot be said that family is facing financial crisis which is necessary prerequisite for appointment of dependents of deceased employee on compassionate ground. The mother of the petitioner is getting family pension and has also been given all terminal benefits on the death of late Girish Chandra. If the State Government has issued any amendment to the Rules of 1974 they shall not be automatically applicable to the Corporation as the employees of Corporation are governed by their own Rules/Regulations and Policies framed by the Board of Directors of the Company.

7. The counsel for the respondents have placed reliance upon a judgment rendered by a Division Bench of this Court in Special Appeal No. 223 of 2021 (State of U.P. and Another vs. Madhavi Mishra and 2 Ors.) decided on 23.09.2021 and also judgment of the Supreme Court in Civil Appeal No. 5122 of 2021 (The Director of Treasuries in Karnataka & Anr. vs. Somyashree) decided on 13.09.2021 to say that the petitioner not being a dependent on her deceased father and the family not being in financial crisis after the death of the employee her case for compassionate appointment cannot be considered.

8. Shri Krishna Agarwal, learned counsel for the respondents says that mistakenly a separate counter affidavit has been filed on behalf of respondent No. 3 which may be ignored by this Court as it shall be governed by the counter affidavit filed on behalf of the Corporation.

9. Learned counsel for the petitioner in his rejoinder affidavit has submitted that the petitioner's father was working as Class III employee in Bijnor and her two siblings her sister and her brother are not looking after their widowed mother. The widowed mother is living with the petitioner and she is taking care of the widowed mother and therefore she is entitled for compassionate appointment. It has also been submitted in terms of the judgment of this Court and the Supreme Court that Dying in Harness Rules, 1974 have been amended in the State of U.P. on 04.05.2022 and married daughters are also entitled for compassionate appointment. A copy of the amended Government Order dated 04.05.2022 has been filed as R.A.-1 to the rejoinder affidavit.

10. This Court having perused the notification dated 04.05.2022, finds that it refers to entitlement are of married daughters and also widowed daughter-in-laws and clarifies that the 12th Amendment to the Dying in Harness Rules, 1974 shall be applicable with effect from 1993. It has also clarified that the State Government in cases of genuine difficulty may condone the delay in filing an application for compassionate appointment beyond 5 years also.

11. This Court after going through the Circular issued by the Corporation is clearly of the opinion that the Corporation is governed by its own Polices and Regulations. The Board of the Corporation has not yet adopted amendments made in the Rules of 1974 by the Government in 2021. That apart, the petitioner has been unable to show that she was dependent on her father's income at the time of his death. It is apparent from the pleading on record that her elder sister is married to a government employee living in Amroha. The petitioner's brother is also a government employee in Moradabad. The widowed mother of the petitioner for reasons best known to the family has not been residing with her employed son. After getting family pension and terminal benefits of late Girish Chandra she has chosen to go and live in the matrimonial home of the petitioner, may be because the petitioner's husband is allegedly unemployed, and it is the family pension of the widowed mother which is being used for taking care of the petitioner and her unemployed husband.

12. This Court has also gone through the judgment rendered by the Division Bench of this Court in Second Appeal No. 223 of 2021 (Supra) where this Court having considered the case of Smt. Vimla Srivastava vs. State of U.P. 2016 1ADJ page No. 21 and the amendment to the definition of family carried out by State Government thereafter, has taken into account the criteria for compassionate appointment to dependents of deceased employees. It has been observed by the Division Bench that the death of the wage earner during service will entitle dependents for compassionate appointment only in case the family members were dependent upon the income of the wage earner and would face financial crisis in the absence of any one to look after them. This Court had placed reliance upon the judgment of Supreme Court in The Director of Treasuries in Karnataka & Anr. vs. Somyashree decided on 13.09.2021 where the Supreme Court had observed that compassionate appointment is an exception to the general rule of direct recruitment under Article 16 of the Constitution of India. No aspirant has a right to compassionate appointment. In case compassionate appointment is sought by family member of deceased employee it can be considered only after all the norms laid down in the State Policies/Regulations are satisfied by such family members. The norms prevailing on the date of consideration of application shall be strictly observed for consideration of claim for compassionate appointment.

13. The Division Bench after considering the facts in the case of State of U.P. and Another vs. Madhavi Mishra (supra) observed that nowhere in her application Madhavi Mishra had disclosed any fact about her mother getting family pension and as to how she was dependent on her father even after her marriage. The object of the scheme was to provide employment to the unemployed member of the deceased employee who died in harness. Only because the married daughter has not been excluded from the definition of family now, it could not be said that Smt. Madhavi Mishra was in anyway dependent on her father after her marriage. The law enjoins that it is duty of the husband to maintain his wife and enables her to claim alimony in case he refuses to maintain her. Therefore, the dependency on the father ceases the moment the daughter is given in marriage and that is the justification for excluding married daughters from the category of dependents.

14. The Court also considered judgment rendered by the High Court of Kerela in a similar case in V Sunithakumari vs. K.S.E.B. and Others, 1992 SCC online KER145

15. The Division Bench thereafter observed in the case of Madhavi Mishra (Supra) that petitioner cannot claim for compassionate appointment as a matter of right specially when she has deliberately omitted to mention eligibility of her mother to get family pension, thus not leaving her in penury and also not making her dependent on the present applicant. There is the tradition also that a married daughter is dependent on her husband and not on her father.

16. This Court has gone through the pleadings on record and finds that there is no pleading regarding the mother of the petitioner getting family pension and other terminal benefits on the death of late Girish Chandra. There is also no denial of such a statement made by the respondents in their counter affidavit in the rejoinder affidavit filed by the petitioner. It has not come out from the pleadings that the petitioner was in anyway dependant on the income of her father at the time he was alive. Only because the husband of the petitioner is allegedly unemployed and the mother of the petitioner is living with the petitioner and her husband and in-laws in petitioner's matrimonial home, it cannot be said that the petitioner has any right for compassionate appointment.

17. This Court finds no good ground to show interference in the order impugned. The writ petition stands dismissed.

18. No order as to cost.

Order Date :- 19.12.2022

SY