Allahabad High Court
Chanchal Pachauri vs State Of U.P. And Another on 30 September, 2020
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 74 Case :- WRIT - A No. - 6071 of 2020 Petitioner :- Chanchal Pachauri Respondent :- State of U.P. and Another Counsel for Petitioner :- Ashutosh Mishra Counsel for Respondent :- C.S.C. Hon'ble Ajit Kumar,J.
1. Heard Sri Ashutosh Mishra, learned counsel for the petitioner and learned Standing Counsel.
2. By means of this petition under Article 226 of the Constitution, the petitioner has challenged the order dated 14.05.2020 passed by respondent no. 2 rejecting the claim of petitioner for compassionate appointment on account of death of her father in harness.
3. The facts of the case can be drawn in a narrow compass like this that the petitioner and her elder sister Sonam Upadhyay were only married daughters survived by late Munna Lal Sharma who died on 20.12.2018 while in active service working as Tubewell Operator with Tubewell IVth Division, Hathra in the Irrigation Department. Since the wife of late Munna Lal Sharma had pre deceased her husband and the elder daughter Sonam Upadhyay had given her no objection in favour of the present petitioner to apply for appointment on compassionate ground and since the husband of the present petitioner was unemployed, the petitioner applied for compassionate appointment vide application dated 06.03.2019. The petitioner is qualified being Post Graduate and stated to have agreed for any job, if offered, as compassionate appointment. However, the claim of the petitioner came to be rejected vide order dated 20.04.2019 on the ground that there was no rule for granting appointment to a married daughter. Since this order passed by the authority concerned was in the teeth of judgment of this Court in Isha Tyagi v. State of U.P. & Ors [Writ - C No. 41279 of 2014] now followed in the case of Smt. Vimla Srivastava v. State of U.P. reported in 2016 (1) All.LJ 678, the petitioner challenged the order before this Court vide Writ - A No. 8965 of 2019. As the petitioner's claim was rejected on the ground that she was a married daughter and the controversy regarding compassionate appointment of a married daughter had remained no more res integra, this Court set aside the order of respondent authority dated 20.04.2019 and remitted the matter for decision afresh.
4. The petitioner supplied copy of order of this Court along with a representation to the respondent no. 2 on 29.02.2020 but her claim has again been turned down vide order dated 14.05.2020 on the ground that there was no provision for giving compassionate appointment to a married daughter under U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 as amended in the year 2001.
5. The argument of learned counsel for the petitioner is that after the judgments of two Division Benches of this Court in Ruby Mausuf (supra) and followed in the case of Smt. Vimla Srivastava (supra) the authority had clearly erred in law in rejecting the claim of the petitioner on the ground that there was no provision under dying in harness rules so as to offer compassionate appointment to a married daughter.
6. Learned Standing Counsel has submitted that the definition of family under Dying in Harness Rules, 1974 as amended from time to time has yet not come to be modified in compliance of the judgments of this Court and that is the reason possibly why going by the literal meaning given under the Dying in Harness Rules, respondent has come to pass the order impugned.
7. Having heard learned counsels for the parties and their respective arguments raised across the bar, this Court is of the considered opinion that once the legal position has been clarified in two judgments of this Court that the married daughter would be entitled to get compassionate appointment as dependent of deceased, if there are no other dependent and merely for her status being married, her claim would not be rejected. Further, the SLP bearing no. 23646 of 2016 filed against the judgment in Smt. Vimla Srivastava (supra) has come to be rejected by the Apex Court, nothing remains for the discretion of the authority to further interpret the term 'family' and the 'dependants' as given in 1974 Rules. The Division Bench in the case of Smt. Vimla Srivastava (supra) vide para 15, 23, 24, 25, 26 & 27 has held thus:
"15. In the judgment of this Court in Isha Tyagi v. State of U.P., Writ C. No. 41279 of 2014, a Division Bench considered the legality of a condition which was imposed by the State Government while providing horizontal reservation to descendants of freedom fighters. The condition which was imposed by the State excluded the children of the daughter of a freedom fighter from seeking admission to medical colleges in the State under an affirmative action programme. Holding this to be unconstitutional, the Division Bench held as follows:
"It would be anachronistic to discriminate against married daughters by confining the benefit of the horizontal reservation in this case only to sons (and their sons) and to unmarried daughters. If the marital status of a son does not make any difference in law to his entitlement or to his eligibility as a descendant, equally in our view, the marital status of a daughter should in terms of constitutional values make no difference. The notion that a married daughter ceases to be a part of the family of her parents upon her marriage must undergo a rethink in contemporary times. The law cannot make an assumption that married sons alone continue to be members of the family of their parents, and that a married daughter ceases to be a member of the family of her parents. Such an assumption is constitutionally impermissible because it is an invidious basis to discriminate against married daughters and their children. A benefit which this social welfare measure grants to a son of a freedom fighter, irrespective of marital status, cannot be denied to a married daughter of a freedom fighter."
23. Specifically in the context of compassionate appointments various High Courts have taken the view that a woman who is married cannot be denied entry into service on compassionate appointment merely on the ground of marriage. This view was taken by a learned Single Judge of the Karnataka High Court in Manjula v. State of Karnataka, 2005 (104) FLR 271. The same view has been adopted by a Division Bench of the Bombay High Court in Smt. Ranjana Murlidhar Anerao v. The State of Maharashtra, Writ Petition No. 5592 of 2009 decided on 13 August 2014 where it was held that the exclusion of a married daughter for the grant of a retail kerosene license on the death of the license holder was not justifiable. The Division Bench of the Bombay High Court held as follows:
"This exclusion of a married daughter does not appear to be based on any logic or other justifiable criteria. Marriage of a daughter who is otherwise a legal representative of a license holder cannot be held to her disadvantage in the matter of seeking transfer of license in her name on the death of the license holder. Under Article 19(1)(g) of the Constitution of India the right of a citizen to carry on any trade or business is preserved. Under Article 19(6) reasonable restrictions with regard to professional or technical qualifications necessary for carrying on any trade or business could be imposed. Similarly, gender discrimination is prohibited by Article 15 of the Constitution. The exclusion of a married daughter from the purview of expression "family" in the Licensing Order of 1979 is not only violative of Article 19(15) but the same also infringes the right guaranteed by Article 19(1)(g) of the Constitution."
24. The same view has been adopted by a learned Single Judge of the Madras High Court in S. Kavitha v. The District Collector, Writ Petition No. 16153 of 2015, decided on 9 June 2015. A learned Single Judge of the Kolkata High Court in Purnima Das v. The State of West Bengal, Writ Petition No. 33967 (W) of 2013, decided on 19 March 2014 has held that while appointment on compassionate ground cannot be claimed as a matter of right, at the same time, it was not open to the State to adopt a discriminatory policy by excluding a married daughter from the ambit of compassionate appointment.
25. 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.
26. During the course of submissions, our attention was also drawn to the judgment rendered by a learned Single Judge of this Court in Mudita v. State of U.P., Writ Petition No. 49766 of 2015, decided on 10 September 2015. 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.
27. 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."
8. Rule 2(C) of the Dying in Harness Rules, 1974 defines 'family' thus:
"2(c) "family" shall include the following relations of the deceased Government servant:
(i) Wife or husband;
(ii) Sons/adopted sons;
(iii) Unmarried daughters, unmarried adopted daughters, widowed daughters and widowed daughters-in-law;
(iv) Unmarried brothers, unmarried sisters and widowed mother dependent on the deceased Government servant, if the deceased Government servant was unmarried;
(v) aforementioned relations of such missing Government servant who has been declared as "dead" by the competent Court;
Provided that if a person belonging to any of the above mentioned relations of the deceased Government servant is not available or is found to be physically and mentally unfit and thus ineligible for employment in Government service, then only in such situation the word "family" shall also include the grandsons and the unmarried granddaughters of the deceased Government servant dependent on him."
9. In view of the above exposition of law, now the term 'family' will include married daughter as well. Thus, the order impugned cannot be sustained. The respondents are directed to give compassionate appointment to the petitioner, if otherwise she is eligible as per relevant rules within a period of eight weeks from the date of production of copy of this order.
10. With the aforesaid observations and directions, the writ petition is allowed.
11. The copy of the order available on official website of this Court shall be treated to be genuine one, however, as and when the certified copy of the order is issued, the same shall also be submitted before the competent authority.
Order Date :- 30.9.2020 IrfanUddin