Neelam Mishra vs State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 13319 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 8
 

 
Case :- WRIT - A No. - 3170 of 2023
 

 
Petitioner :- Neelam Mishra
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home, Lko. And Others
 
Counsel for Petitioner :- Anurag Tripathi,Anand Mani Tripathi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Dinesh Kumar Singh,J.

1. Heard Sri Anand Mani Tripathi assisted by Sri Anurag Tripathi, learned counsel appearing for the petitioner and Sri Virendra Singh, learned Standing Counsel appearing for the State.

2. Present petition under Article 226 of the Constitution of India has been filed seeking following reliefs:-

"(i) To issue a writ, order or direction in the nature of Certiorari thereby quashing the order dated 13.10.2022 passed by the opposite party No.2 as contained in annexure no.1 to the writ petition.

(ii) to issue a writ, order or direction in the nature of Mandamus thereby commanding/directing the opposite parties to reconsider the case of the petitioner for appointment under The Uttar Pradesh Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974 on a suitable post according to her qualification in the department forthwith.

(iii)....

(iv)...."

3. This is second writ petition filed by the petitioner seeking appointment on compassionate ground after the death of her father-in-law on 02.06.2018, who was serving as Head Constable in U.P. Civil Police and died in harness.

4. Earlier, the petitioner filed a writ petition being Writ A No.8279 of 2019 and the said writ petition was disposed of vide order dated 29.08.2022. Operative portion of the said order would read as under:-

"In view of the aforesaid submissions advanced by the learned counsel for the parties, the present petition is disposed of with the direction to opposite party no.2 to consider and decide the representation of the petitioner dated 06.3.2019 contained in Annexure 6 to the writ petition expeditiously, say within a period of eight weeks in accordance with law from the date a certified copy of this order is produced before him and communicate its decision to the petitioner."

5. In pursuance of the liberty granted by this Court, the petitioner moved a representation seeking appointment on compassionate ground under The Uttar Pradesh Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974 (hereinafter referred to as the 'Rules, 1974'). Said representation has been rejected vide detailed order dated 13.10.2022 passed by the Director General of Police, U.P.

6. Late father-in-law of the petitioner, Sri Dinanath Pandey, who was working as Head Constable and died in harness, has left behind his wife Smt. Durga Devi, three sons namely, Sachidanand Pandey, Krishna Nand Pandey and Sampurnanand Pandey, and a married daughter namely, Sunita Sharma. Petitioner' husband is Sampurrnand Pandey.

7. The petitioner moved an application on 06.03.2019 in the Department for giving her appointment on compassionate ground along with affidavits of other family members including her husband that they would have no objection, if the appointment is offered to the petitioner.

8. It has been noted in the impugned order that the husband of the petitioner are three brothers and one sister. Elder brothers of husband of the petitioner are living in Dehradun and are in job. In the application, it was said that some criminal case was registered against elder brother of her husband, the entire responsibility to look after the mother of the husband is on the petitioner, who is daughter-in-law of the deceased. Details of the family members, who are from Late Deena Nath Pandey, have been given in chart in para 6 of the impugned order.

9. Considering the definition of the family under the Rules, 1974 in which widowed daughter-in-law is specifically included and a daughter-in-law whose husband is alive is excluded from the purview of the definition clause, the competent authority has been of the opinion that the petitioner being a daughter-in-law whose husband is alive would not be entitled for appointment on compassionate ground under the Rules, 1974.

10. Sri Anand Mani Tripathi, learned counsel appearing for the petitioner submits that the reasoning in the impugned order is unsustainable as the authority is required to see that whether the family member, who is claiming appointment on compassionate ground under the Rules, 1974, is looking after the other family members of the deceased employee or not?; and whether other family members are dependant on the person who is seeking appointment on compassionate ground or not?

11. Sri Anand Mani Tripathi further submits that from the affidavits of other family members, it is evident that the mother-in-law of the petitioner is dependant on the petitioner and, therefore, she is entitled to be given appointment under the Rules, 1974. Sri Anand Mani Tripathi, learned counsel appearing for the petitioner further places reliance on the judgment of the Full Bench of this Court in the case of U.P. Power Corporation Ltd. vs Smt Urmila Devi : [2011(3) ESC 1585 (All)(FB)] in which it was held that as the widowed daughter was included in the definition clause, there was no justification to leave widowed daughter-in-law from the definition clause of the dependant/family of the deceased employee.

He places reliance on the para 5 and 8 of the said judgment which reads as under:-

"5. There is no dispute that the definition of family under the Rules, does not include a daughter-in-law though it includes a widowed daughter.

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8.We must, however, note one feature of the definition of the word ?family? as generally contained in most Rules. The definition of ?family? includes wife or husband; sons; unmarried and widowed daughters; and if the deceased was an unmarried government servant, the brother, unmarried sister and widowed mother dependant on the deceased government servant. It is, therefore, clear that a widowed daughter in the house of her parents is entitled for consideration on compassionate appointment. However, a widowed daughter-in-law in the house where she is married, is not entitled for compassionate appointment as she is not included in the definition of 'family'. It is not possible to understand how a widowed daughter in her father?s house has a better right to claim appointment on compassionate basis than a widowed daughter-in-law in her father-in-law?s house. The very nature of compassionate appointment is the financial need or necessity of the family. The daughter-in-law on the death of her husband does not cease to be a part of the family. The concept that such daughter-in-law must go back and stay with her parents is abhorrent to our civilized society. Such daughter-in-law must, therefore, have also right to be considered for compassionate appointment as she is part of the family where she is married and if staying with her husband's family. In this context, in our opinion, arbitrariness, as presently existing, can be avoided by including the daughter-in-law in the definition of 'family'. Otherwise, the definition to that extent, prima facie, would be irrational and arbitrary. The State, therefore, to consider this aspect and take appropriate steps so that a widowed daughter-in-law like a widowed daughter, is also entitled for consideration by way of compassionate appointment, if other criteria is satisfied."

12. On the other hand, Sri Virendra Singh, learned Standing Counsel states that the Court cannot enhance the scope of the statutory prescription wherein a daughter-in-law whose husband is alive is not included in the definition clause, and it is only the widowed daughter-in-law alongwith the widowed daughter is included in the definition clause. He further submits that the rules have been correctly taken note of in the impugned order and, therefore, impugned order is justified, which is not liable to be interfered with.

13. I have considered the submissions of learned counsel appearing for the petitioner and learned Standing Counsel for the State and perused the record.

14. From perusal of the averments made in the writ petition, it is evident that the petitioner has nowhere mentioned her husband is unemployed and what are his qualifications. Admittedly, other family members are employed i.e. two other brothers of the husband of the petitioner are employed and are settled in Dehradun. It is also said that husband of the petitioner lives outside the parental home. Three sons of the deceased, Deenanath Pandey living outside the parental home would not mean that the deceased wife is wholly dependant on the unemployed daughter-in-law of the deceased.

15. Further, definition clause of the Rules, 1974 specifically include widowed daughter-in-law and not the daughter-in-law whose husband is alive. This Court will not supplant the definition clause to include the daughter-in-law whose husband is alive within the scope of the definition of the family of the deceased.

16. In view thereof, I do not find that the competent authority has committed any error of law in rejecting the claim of the petitioner for her appointment on compassionate ground after death of her father-in-law, who was employed as Head Constable in U.P. Civil Police.

17. This petition being devoid of merit and substance is hereby dismissed.

(Dinesh Kumar Singh, J.)

Order Date :- 28.4.2023

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