Bindesh Yadav vs State Of U.P. And 3 Others
2023 Latest Caselaw 21744 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:163857
 
Court No. - 35
 

 
Case :- WRIT - A No. - 12684 of 2018
 

 
Petitioner :- Bindesh Yadav
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Onkar Nath
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vikas Budhwar,J.

1. Heard Sri Omkar Nath, learned counsel for the writ petitioner and Sri Shailendra Singh, learned Standing Counsel who appears for the respondents No. 1 to 4.

2. The case of the writ petitioner is that her father namely, Om Prakash Yadav who was posted as Sub-Inspector in U.P. Police in District Etawah died in an encounter of Bhura Gang on 03.04.1990. At the time of death of the father of the writ petitioner, she was a minor and she attained the age of 18 years on 13.06.2007 and she applied for compassionate appointment under the provisions of U.P. Government Servant Dying-In-Harness Rules, 1974. In various paragraphs of the writ petition it is averred that on paper work was done as only correspondences were made, however, the claim of the writ petitioner for being accorded compassionate appointment was never considered. Learned counsel for the writ petitioner has invited the attention of the Court towards Annexure 9 at page 33 of the paper book relevant reference whereof has been given in para 14 of the writ petition so as to contend that the matter being referred to the State Government, the State Government, in turn, on 30th September, 2016 accorded relaxation and when again the matter was not being considered, the writ petitioner preferred Writ A No. 46892 of 2017 (Kumari Bindesh Vs. State of U.P) which came to be disposed of with a direction to the Senior Superintendent of Police, Etawah to take decision within a period of two months from the date of production of certified copy of the order. According to the writ petitioner now the claim of the writ petitioner has been turned down by virtue of the order dated 27.01.2018 by the fourth respondent, Senior Superintendent of Police, Etawah.

3. Questioning the order dated 27.01.2018 passed by the Senior Superintendent of Police, Etawah, the writ petitioner has filed the present writ petition. On 03.07.2018 this Court proceeded to pass the following order.-

"Petitioner's claim for grant of compassionate appointment has been rejected by the order impugned on the ground that a married daughter is not included within the definition of family as per the Rules of 1974. A Division Bench of this Court in Smt. Vimla Srivastava Vs. State of U.P. and another, in Writ Petition No.60881 of 2015, decided on 4.12.2015 has already declared the provisions to be ultra vires.

This Court, however, is informed that issue is pending before the Apex Court and the interim order is operating. In such circumstances, no interference with the order is called for, at this stage, while matter is pending before the Apex Court.

This writ petition is, accordingly, adjourned sine die.

Liberty stands reserved to the petitioner to move an application as and when the issue is resolved."

4. Order sheet reveals that neither instructions were sought nor time had been accorded to the learned Standing Counsel who appears for the respondents to file their response.

5. Today when the matter has been taken up Sri Shailendra Singh, learned Standing Counsel who appears for the respondents has made a statement at bar that since legal issue is involved in the present writ petition, thus, the matter may be decided in the absence of response, however, the factual issues be left to be decided by the fourth respondent, Senior Superintendent of Police, Etawah.

6. With the consent of the parties, the writ petition is being disposed of at the admission stage without seeking any response from the respondents.

7. Sri Omkar Nath, learned counsel for the writ petitioner has submitted that the order dated 27.01.2018 passed by the fourth respondent is wholly unsustainable in the eyes of law as it takes note of a fact which is totally non-existent in the present case particularly when the said issue stands decided upto the level of the Apex Court.

8. Elaborating the said submission, it is being sought to be contended that the ground on which the claim of the writ petitioner has been negated is that the writ petitioner is a married woman who had solemnized marriage on 10.12.2012 and, thus, she being a married woman would not fall within the definition of a "Dependant of the Deceased" in terms of Section 2(c) of U.P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974. He further submits that even in fact the provisions contained under Section 2C, insofar as it excludes the married daughter, has been read down by this Court in the case of Smt. Vimla Srivastava Vs. State of U.P. 2016 (1) ADJ 21 which has been carried in the Special Leave Petition which has also been rejected. He further submits that now the rules have been amended and the married daughters have also been made entitled to the said benefits.

9. Accordingly, the submission is that the order impugned in the present writ petition be set aside and the matter be remitted back to the fourth respondent, Senior Superintendent of Police, Etawah, to decide the matter afresh.

10. Sri Shailendra Singh, learned Standing Counsel while countering the said submission has sought to argue that though he does not dispute the proposition of law laid down in the judgment of Smt. Vimla Srivastava (supra) but, according to him the entitlement of the writ petitioner will be dependent upon various other factors including the continuation of the financial dependency, need and destitution in that regard.

10. The submission is that these factual issues have to be taken into consideration particularly when the death occurred in the year 1990 though the writ petitioner claims to have been litigating before this Court. In rejoinder, learned counsel for the writ petitioner submits that the matter be remitted back to the fourth respondent, Senior Superintendent of Police, Etawah and the writ petitioner will appear before the fourth respondent and would place his version and thereafter, a conscious decision be taken in that regard.

11. Undisputedly, the writ petitioner claims to be the daughter of the deceased who had died-in-harness on 03.04.1990 and relaxation was accorded on 30.09.2016 and the writ petitioner being aggrieved against the non-consideration of the claim had preferred Writ A No. 46892 of 2017, now the order impugned had been passed negating the claim of the writ petitioner on the ground that the writ petitioner is a married woman. As the said issue is no more res integra as in the case of Smt. Vimla Srivastava (supra) the Apex Court has read down the said provision and now the married daughter is also entitled to be considered for compassionate appointment, thus, the matter needs re-look.

12. Considering the submission of the rival parties as well as the stand taken by them, the writ petition is being decided on the following terms; (a) the order dated 27.01.2018 passed by the fourth respondent is set aside; (b) the matter stands remitted back to the fourth respondent, Senior Superintendent of Police, Etawah to decide the matter afresh strictly in accordance with law within a period of two months from the date of production of certified copy of the order; (c) it is open for the writ petitioner to place his version either in writing or in the form of a representation accompanied with the self attested copy of the writ petition and the fourth respondent, Senior Superintendent of Police, Etawah shall consider the same and pass orders on following fundamental and core issues; (i) the issue with regard to the continuance of destitution and financial dependency of the writ petitioner; (ii) the issue with regard to the lapse of sufficient time though on 30.09.2016 relaxation has been accorded by the State Government and the writ petitioner had filed Writ A No. 46892 of 2017 whereby the fourth respondent, Senior Superintendent of Police, Etawah was required to decide the claim which even in fact has been rejected in the order impugned in the writ petition; (iii) the eligibility qualifications of the writ petitioner vis-a-vis the post to which the writ petitioner, if, is entitled to be appointed; (iv) any other ancillary or incidental issues related with the same.

Needless to point out that this Court has not adjudicated on the merits of the matter.

Order Date :- 11.8.2023

Rajesh