Uttarakhand High Court
WPSS/1214/2021 on 15 December, 2021
Office Notes,
reports, orders or
proceedings or
SL. No Date COURT'S OR JUDGES'S ORDERS
directions and
Registrar's order
with Signatures
WPSS No.1214 of 2021
Hon'ble Sharad Kumar Sharma, J.
Mr. Devang Dobhal, Advocate, for the
petitioner.
Mr. Narain Dutt, Brief Holder, for the
State of Uttarakhand.
The brief facts of the case are that the
petitioner has earlier approached the writ court
by way of filing a writ petition being WPSS
No. 891 of 2019, praying to consider her claim
for grant of compassionate appointment, as a
consequence of the death of Smt. Gauri
Sharma, the mother the petitioner, who is said
to have died on 27.03.2008, while she was in
service in a Medical Department, of the State of
Uttarakhand.
The petitioner had preferred the writ
petition on the premise, that the definition of
family as provided under the Dying In Harness
Rules 1974, since initially did not included
within its ambit the married daughters, they
didn't fell within the domain and zone of
consideration for the grant of compassionate
appointments under the Dying In Harness
Rules, 1974. However, later on, on the
reference being been made to the Full Bench of
this Court, the Full Bench of this Court, had
decided the matter in Special Appeal No.187 of
2017, wherein, on the basis of the aspect of the
gender discrimination, that when the married
son has been brought within the ambit of
definition of "family" under the Dying In
Harness Rules, 1974, the married daughters too
cannot be excluded and hence by virtue of the
implications of the Full Bench judgment, the
married daughters were brought within the zone
of the consideration for the grant of the
compassionate appointment under the Rules of
1974.
Based on the said principles, the
petitioner's earlier writ petition was disposed of
by the co-ordinate Bench of this Court on
16.04.2019, holding, thereof, that with the
changed circumstances, and changed legal
position, as a consequence of the Full Bench
judgement, the petitioner's application for
consideration for grant of appointment on
compassionate grounds requires a
consideration.
But, if the said judgement is taken into
consideration, one fact which is quite apparent
is that the death of the mother has taken place
way back on 27.03.2008. In fact after the death
of the petitioner's mother, the petitioner had not
raised any claim, may be even in the capacity of
being a married daughter, within the time
period as prescribed by Rule 5 of the Dying in
Harness Rules, 1974, on compassionate
grounds. Approaching the writ court at a
belated stage in the year 2019, when there was
a denial of appointment on compassionate
grounds, in fact directing, it to be reconsidered
runs contrary and against the spirit of the
Legislation itself, which basically intends to
provide an immediate reprieve to the bereaved
family, which had lost the breadwinner, so that
they may be able to sustain themselves in crisis,
and that is why the Legislature consciously had
provided the provisions of Rule 5 in the Rules
of 1974, which provides the cut off period,
within which the application was required to be
made. While issuing a direction to consider the
petitioner's claim, I am of the view that the
implications of Rule 5 of the Rules of 1974,
was also required to be considered. Hence, I
frame the following questions:-
(1) That as to whether in those cases, where the
death has taken place much prior in time i.e.
beyond period provided under Rules, and the
claim is raised beyond the period prescribed
within the Rule 5 of the Rules of 1974, by a
married lady, who has now been brought within
the definition of a family, as a consequence of
the judgement of the Full Bench in Special
Appeal No.187 of 2017, could still be
considered irrespective of the provisions
contained under Rule 5 of the Rules of 1974?
(2). Second question of reference is, that
whether the implications of the judgement of
the Full Bench, where on the basis of the
principles of gender discrimination, the married
daughter was brought within the definition of
the family for the purposes of consideration of
the claim of compassionate appointment
under the Rules of 1974. Whether the
implications of the judgement could be made
applicable retrospectively in relation to even
those cases, where the death has chanced, much
prior to the period prescribed under Rule 5 of
the Rules of 1974, and the judgment would
have procedural retrospective applicability?
Since there is a vacuum prevailing on
these aspects, let the matter be referred to the
Larger Bench to answer these questions,
hence I am not inclined to interfere in the writ
petition at this stage. Though it would be
without a deprivation to the petitioner's right, if
the reference is decided in favour of
the petitioner's by the larger Bench, to
reapproach to the Court.
Registry is directed to place the order
before the Hon'ble Chief Justice.
Order accordingly.
(Sharad Kumar Sharma, J.)
15.12.2021
NR/
