Allahabad High Court
Arti Devi vs State Of U.P. And 3 Others on 19 July, 2021
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- WRIT - A No. - 5801 of 2021 Petitioner :- Arti Devi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ram Suphal Shukla,Lalit Kumar Gond Counsel for Respondent :- C.S.C.,Arun Kumar Hon'ble Mahesh Chandra Tripathi,J.
The petitioner is before this Court for grant for appointment on compassionate ground. The claim of the petitioner has been invalidated on the foot that she is a married daughter of the deceased employee and does not come within the ambit of the definition of family in the U.P. Dying in Harness Rules, 1974.
Sri Ram Suphal Shukla, learned counsel for the petitioner submits that the order passed by the authority is in the teeth of the law laid down by the learned Division Bench of this Court in the case of Vimla Srivastava Vs. State of U.P and another 2016 (8) ADJ 21 (DB) as well as Neha Shukla Special Appeal Defective No. 863 of 2015.
Learned Standing Counsel could not dispute the applicability of the judgment rendered by this Court in the case of Neha Srivastava (supra) and Vimla Srivastava (supra) to the facts of this case.
The right of married daughter to seek employment under the Dying in Harness Rules arose for consideration before the learned Division Bench in the case of Vimla Srivastava Vs. State of U.P and another reported at 2016 (8) ADJ 21 (DB). The Division Bench in Vimla Srivastava (supra) after surveying the relevant provisions of the U.P. Dying in Harness Rules as well as the constitutional rights of the petitioner has held thus:
"24. We are in respectful agreement with the view which has been expressed on the subject by diverse judgments of the High Courts to which we have made reference above.
25. During the course of submissions, our attention was also drawn to the judgment rendered by a learned Single Judge of this Court in Mudita vs. State of U.P.13. The learned Single Judge while proceeding to deal with an identical issue of the right of a married daughter to be considered under the Dying-in-Harness Rules observed that a married daughter is a part of the family of her husband and could not therefore be expected to continue to provide for the family of the deceased government servant. The judgment proceeds on the premise that marriage severs all relationships that the daughter may have had with her parents. In any case it shuts out the consideration of the claim of the married daughter without any enquiry on the issue of dependency. In the view that we have taken we are unable to accept or affirm the reasoning of the learned Single Judge and are constrained to hold that Mudita does not lay down the correct position of the law.
26. In conclusion, we hold that the exclusion of married daughters from the ambit of the expression "family" in Rule 2 (c) of the Dying-in-Harness Rules is illegal and unconstitutional, being violative of Articles 14 and 15 of the Constitution.
27. We, accordingly, strike down the word 'unmarried' in Rule 2 (c) (iii) of the Dying-in-Harness Rules.
28. 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.
29. The writ petitions shall, accordingly, stand allowed. There shall be no order as to costs."
The law laid down in the case of Vimla Srivastava (supra was also followed in subsequent ruling of this Court in Neha Srivastava (supra). In the following terms:
"As indicated above, the coordinate Bench of this Court in Smt. Vimla Srivastava v. State of U.P. & Anr. (Supra) while proceeding with the matter had held that the exclusion of married daughters from the ambit of expression "family" in Rule 2 (c) of the Dying-in-Harness Rules is illegal and unconstitutional, being violative of Articles 14 and 15 of the Constitution. The Court had also struck down the word 'unmarried' in Rule 2 (c) (iii) of the Dying-in-Harness Rules and proceeded to direct the respondent authorities to consider the claim of the applicant on the basis of all relevant facts and circumstances and directed that her right could not be excluded from consideration only on the ground of their marital status.
As the coordinate Bench of this Court has also decided the question, the same is binding on us and holds the field. The judicial propriety demands that the same view be followed by the coordinate Benches.
In view of the aforesaid facts and circumstances, the order impugned passed by learned Single Judge cannot sustain and is accordingly set aside. Consequently, it is directed that the competent authority would be at liberty to consider the claim for compassionate appointment of the petitioner on the basis of all the relevant facts and circumstances and the petitioner shall not be excluded from consideration for compassionate appointment only on the ground of her marital status.
The special appeal is allowed accordingly."
It needs to be mentioned that the judgment of Neha Srivastava was carried in appeal before Hon'ble Supreme Court. Hon'ble Supreme Court rejected the appeal of the State by order dated 23.7.2019 passed in Special Appeal No. 22646 of 2016 State of U.P. Vs. Neha Srivastava.
In this case the mother of the petitioner late Smt. Pushpa Devi was working on the post of Assistant Teacher. The mother of the petitioner died in harness on 2.10.2016. The petitioner had made a claim for compassionate appointment under the Dying in Harness consequent to the death of her mother. The claim of the petitioner has never been redressed by the respondent authority which is in teeth of law laid down in the case of Vimla Srivastava (supra) and Neha Srivastava (supra).
The matter is remitted to competent authority for fresh consideration of the case of the petitioner for appointment under the Dying in Harness Rules.
It is clarified that the mere eligibility for consideration to be appointed under the Dying in Harness Rules does not ipso facto guarantee an appointment. It merely assures a right of consideration for appointment. The eligibility for appointment on compassionate ground has to be determined in the light of the law laid down by the Full Bench of this Court the case of Shiv Kumar Dubey Vs. State of U.P 2014 (2) ADJ 312 as well as other ruling rendered by the Constitutional Courts from time to time. The authority shall bear in mind the purpose of compassionate ground appointment. The respondents while considering the case for appointment shall enquire into the financial dependency of the petitioner on her mother at the time of her death. Besides this the financial crisis or penury caused to the petitioner by the death of her mother and her own financial condition are relevant issues to be factored into the decision. The claim of the petitioner shall be considered within a period of two months.
The writ petition is disposed of to the extent indicated above.
Order Date :- 19.7.2021 Jaswant