Allahabad High Court
U.P. Power Corporation Ltd vs Smt. Urmila Devi on 27 January, 2011
Equivalent citations: 2011 LAB. I. C. 2225, (2011) 102 ALLINDCAS 460 (ALL), 2011 (3) ALL LJ 1, (2011) 129 FACLR 80, (2011) 6 SERVLR 400, (2011) 3 ESC 1585, (2012) 3 ALL WC 2377, (2011) 3 ADJ 432 (ALL), (2011) 85 ALL LR 837, (2011) 4 JCR 201 (ALL), (2011) 2 LAB LN 660
Author: F.I. Rebello
Bench: Ferdino Inacio Rebello, Vineet Saran, Vikram Nath
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Chief Justice's Court Case :- SPECIAL APPEAL No. - 1026 of 2003 Petitioner :- U.P. Power Corporation Ltd. Respondent :- Smt. Urmila Devi Petitioner Counsel :- Navin Sinha, Sr. Advocate, Nripendra Mishra, R.P. Srivastava, Pankaj Kumar Shukla, H.P. Dubey, C.S.C. Respondent Counsel :- Ashok Pandey Hon'ble Ferdino Inacio Rebello, Chief Justice Hon'ble Vineet Saran,J.
Hon'ble Vikram Nath,J.
A petition, being Civil Misc. Writ Petition No. 20938 of 2002, was filed by Smt.Urmila Devi, respondent herein, daughter-in-law of the deceased Kishun Lal, who died in harness on 21.04.1999. Kishun Lal, at the time of his death, was employed as Painter in the Electricity Transmission Division II of the U.P. Power Corporation, Allahabad. Anil Kumar, husband of the respondent predeceased his father. Late Kishun Lal was survived by the respondent herein and two children, i.e. one son and one daughter. After the death of Kishun Lal, his daughter-in-law Urmila Devi, respondent herein, applied for compassionate appointment, which was declined by order dated 22.04.2002 on the premise that she did not fall within the definition of ?family? as given under the U.P. State Electricity Board Dying in Harness Rules, 1975 (hereinafter referred to as the 'Rules'). That order was the subject matter of consideration before the learned Single Judge in the writ petition. The learned Single Judge, after considering the definition of ?family? and various judgments, was pleased to allow the petition by order dated 09.09.2003 holding that a widowed daughter-in-law would fall within the definition of family. This is the order which had been challenged in the special appeal.
At the time of hearing of the appeal, various judgments were cited on behalf of the learned counsel for the appellant ? Power Corporation before the learned Appellate Bench for the proposition that where a discretion to grant compassionate appointment is vested in a particular office holder, the writ Court can, at best, direct the consideration of the case of an otherwise entitled dependant, but it cannot, by itself, direct the appointment to be made by issuing a writ of mandamus.
On behalf of the writ petitioner-respondent, reliance was placed on a Division Bench decision of this Court in State of U.P. & Ors. Vs. Rajendra Kumar, [2000 (1) AWC 155], where the Rule considered was of appointment on compassionate basis in the State Government. The learned Appellate Bench, then, considered the meaning of the expression 'family shall include' and thereafter was pleased to observe as under:-
?In a similar way, in the present context, it is our opinion that the word ?include?, although usually prefixing an illustrative category, here prefixes an exclusive one. As such, the matter is referred to the Hon?ble Chief Justice for constitution of a larger Bench; until the said decision the order under appeal will have to remain stayed as contempt application is pending. Stay order passed accordingly.?
We find, however, that the learned Bench has really not framed the question for consideration by this Bench. From the observations made, however, it appears that the learned Appellate Bench did not agree with the view taken in the case of Rajendra Kumar (supra). In that light of the matter, the question for our consideration would be:-
?Whether the definition of ?family? under the Rules would include a daughter-in-law?
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.
We may mention that, at the preliminary hearing, our attention was invited to a Division Bench judgment of this Court in the case of Basic Shiksha Adhikari, Hardoi Vs. Madhu Mishra & Ors., [2009 (27) LCD 995], where the question for consideration was ?whether a widowed daughter-in-law can claim appointment under the Dying in Harness Rules? The learned Bench, after considering the definition of the word ?family?, was pleased to hold that the decisions in Smt. Urmila Devi Vs. U.P. Power Corporation & Ors., 2003 (4) AWC 3205, & Sanyogita Rai (Smt.) Vs. State of Uttar Pradesh & Ors., (2006) 2 UPLBEC 1972, are not in conformity with the well settled principles of law and they are, accordingly, overruled. In other words, the judgment in Urmila Devi (supra) no longer subsists. It is, therefore, clear that the reference as such, would not be maintainable.
However, during the pendency of these proceedings, considering the peculiar features of the case, the appellant themselves, on queries raised by the Court, have taken a decision to give appointment to the respondent on producing the documents as set out in the affidavit filed on behalf of the appellants. They have also made it clear that the age bar would not come in the way while giving appointment to the respondent. In the light of that, in our opinion, really, nothing further would survive in this reference. However, liberty to the respondent, in the event appointment is not given, to apply.
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.
Learned Chief Standing Counsel to forward a copy of this order to the Secretary of the concerned Department in the State Government for appropriate consideration.
With the above observations, the reference is disposed of.
At this stage, parties agree that as the judgment in Urmila Devi (supra) has since been held to be no longer a good law, the appeal itself can be treated to be disposed of.
Accordingly, the appeal stands disposed of.
Order Dt.- 27.1.2011 AHA (F.I. Rebello, C.J.) (Vineet Saran, J.) (Vikram Nath, J.)