Allahabad High Court
Smt. Sana Siraj vs State Of U.P. And 9 Others on 13 January, 2020
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- WRIT - A No. - 49199 of 2017 Petitioner :- Smt. Sana Siraj Respondent :- State Of U.P. And 9 Others Counsel for Petitioner :- Anupam Kulshreshtha Counsel for Respondent :- C.S.C., Abhinav Ojha, Mohammed Yusuf, Rakesh Chandra Pathak, Suresh Chandra Kushwaha Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the parties.
Petitioner is before this Court with a request to issue a mandamus commanding the respondent nos. 1 to 6 not to pay the family pension, gratuity, G.P.F., leave encashment, arrears of salary and other benefits payable regarding the deceased employee, namely, Sirajuddin, father of the petitioner to the respondent no. 7. With a further request commanding the respondent nos. 1,2,4 and 6 to give employment to the petitioner under Dying-in Harness Rules.
It appears from the record that the father of the petitioner, namely, Sirajuddin who was a Constable in Civil Police, died in harness on 17.1.2017. He left behind him one married daughter, namely, Smt. Sana Siraj (petitioner), two minor daughters, namely, Km. Uzma Siraj and Km. Wazaira Siraj and one minor son, namely, Shayam Siraj whereby by the petitioner was born with the wedlock of one Jubaida Bano (first wife of late Sirajuddin). It appears that late Sirajuddin had solemnised a second marriage with one Smt. Nishat Parveen (respondent no.7) and from their wedlock three children, namely, Km. Uzma Siraj, Km. Wazaira Siraj and Shayam Siraj (respondent no. 8, 9 and 10) were born. The service records of late Sirajjudin indicates the name of Smt. Jubaida Bano as his wife and he solemnised the second alleged marriage without prior permission of the State Government. Smt. Jubaida Bano died on 2.9.2011 during lifetime of Sirajuddin. After death of Sirajuddin, the petitioner submitted an application on 25.1.2017 under the RTI for information about G.P.F., gratuity etc. of her father and his arrears of salary. In response thereof, petitioner received a letter of Circle Officer (City), Behraich dated 11.4.2017 annexing report of the Head Clerk, Police Office, Behraich stating therein that no amount has been paid till date and payment may be made to the nominee of the deceased Government servant. Thereafter, the petitioner moved an application on 27.1.2017 to the respondent no. 4 claiming that she was dependent of her father and she is entitled to claim G.P.F., gratuity etc. apart from the employment under Dying-in-Harness Rules. Copy of which was also sent to the D.I.G., Devi Patan Mandal (Gonda), D.G.P., U.P., Lucknow and S.P. Behraich. In response thereof, the petitioner received a letter of respondent no. 5 dated 16.6.2017 whereby claim of the petitioner in respect of payment of gratuity alone to the extent of 1/5 share was allowed and other claims including family pension were rejected. It has also been in the said letter that Smt. Nishat Parveen was nominated in the service records and as such, she is entitled for family pension.
Learned counsel for the petitioner, in this backdrop, submits that the alleged marriage of father of the petitioner with respondent no. 7 during lifetime of the mother of the petitioner was a void marriage under Rule 29(1) of the U.P.Government Servant Conduct Rules, 1956 and as such, respondent no. 7 is not legally entitled for family pension, gratuity, G.P.F., leave encashment, arrears of salary etc. including employment in dying-in-harness. In support of his submissions, he has placed reliance upon judgment of the Apex Court in the cases of Rameshwari Devi Vs. State of Bihar & Others 2000(2) SCC 431 and Khursheed Ahmad Khan Vs. State of U.P. & Others 2015(8) SCC 439. He further submits that though the marriage of the respondent no. 7 with the father of the petitioner was void but the children (respondent nos. 8, 9 and 10) would be legitimate children and therefore would be entitled to equal shares in family pension, gratuity etc. So far as the alleged nomination in the service record is concerned it has been urged that the same is an act of manipulation by the officials in connivance with the respondent no. 7. He further submits that the petitioner being married daughter of the deceased employee falls in clause (iii) of sub-rule (c) of Rule 2 of the Dying-in-Harness Rules though the word "unmarried daughter" is mentioned in the said clause but the same has been declared unconstitutional, being violative of Articles 14 and 15 of the Constitution of India and as such, claim of the petitioner for employment under Dying-in-Harness Rules cannot be rejected. In support of his submissions, he has placed reliance upon Division Bench judgment of this Court in Vimla Srivastava Vs. State of U.P. & Others 2016(1) AWC 1068.
In this backdrop, the Court has proceeded to examine the record in question. So far as other benefits are concerned as per pleadings set-up before this Court, the Authority has settled the issue by extending the same between the children. While filing the counter-affidavit by the private respondent, it has also been acknowledged that the petitioner is married daughter of first wife and according to Rule 2(c) of U.P. Government Servant Conduct Rule 1956, she does not fall in the definition of family. As it has been urged by learned counsel for the petitioner that so far as the status of second wife while first wife was alive without obtaining permission of the Government under Rule 29(1) of the Rules 1956, subsequent marriage is a void marriage. Eventually the first wife died and as such the petitioner is well within the definition of family and accordingly, right of employment is to be extended first to the petitioner instead of second wife whereas the status of second wife is being disputed. In support of his submissions, he has placed reliance upon Division Bench judgment of this Court in Vimla Srivastava Vs. State of U.P. & Others 2016(1) AWC 1068 decided on 4.12.2015. At the same time, so far as claim of the children with second wife, the same is not disputed by learned counsel for the petitioner and it has been urged that they would be entitled to equal shares in family pension, gratuity etc. but so far as the compassionate employment is concerned, in case, financial status of the petitioner is still miserable, the Authority can process her application for compassionate employment independently in accordance with law.
In view of the aforesaid, with the consent of the parties, the present writ petition stands disposed of finally asking the competent authority to look into the grievance of the petitioner sympathetically and in case, the petitioner's case for compassionate employment falls under the zone of consideration, definitely, the same may be extended to the petitioner strictly as per law.
Order Date :- 13.1.2020 A.K.Srivastava