Allahabad High Court
Mohita Singh Chauhan vs State Of U.P. And 3 Others on 26 July, 2021
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 33 Case :- WRIT - A No. - 8244 of 2021 Petitioner :- Mohita Singh Chauhan Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Vinay Kumar Srivastava Counsel for Respondent :- C.S.C. Hon'ble Ashwani Kumar Mishra,J.
Heard learned counsel for the parties.
Petitioner's claim for compassionate appointment has been rejected vide order dated 30.01.2021, which records that petitioner is a married daughter and, therefore, not a member of family in terms of Dying-in-Harness Rules, 1974.
The question, as to whether married daughter would form part of the family, has been considered by a Division Bench of this Court in the case of Smt. Vimla Srivastava vs. State of U.P. and another (Writ Petition No. 60881 of 2015), in which the Division Bench has been placed to observe as under:
"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 vs. State of Karnataka9. The same view has been adopted by a Division Bench of the Bombay High Court in Smt. Ranjana Murlidhar Anerao vs. The State of Maharashtra10 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 15 but the same also infringes the right guaranteed by Article 19(1)(g) of the Constitution."
The same view has been adopted by a learned Single Judge of the Madras High Court in S Kavitha vs. The District Collector11. A learned Single Judge of the Kolkata High Court in Purnima Das vs. The State of West Bengal12 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.
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.
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.
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.
We, accordingly, strike down the word 'unmarried' in Rule 2 (c) (iii) of the Dying-in-Harness Rules.
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.
The writ petitions shall, accordingly, stand allowed. There shall be no order as to costs."
A special leave petition filed against the aforesaid order has also been dismissed.
In view of the pronouncement of law on the subject in question, the order passed by the District Inspector of Schools, Etah declining prayer for grant of compassionate appointment only on the ground that the petitioner is a married daughter cannot be sustained. The order impugned, accordingly, stands quashed.
Learned Standing Counsel submits that the authority may be permitted to reconsider the matter.
The petition is, accordingly, stands disposed of with a direction to the District Inspector of Schools, Etah (respondent no. 3) to consider the matter afresh in light of the aforesaid observations of this Court in the case of Smt. Vimla Srivastava (supra) within a period of three months from the date of presentation of a copy of this order.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Date :- 26.7.2021 Pkb/