Allahabad High Court
Rekha Devi vs State Of U.P. And 5 Others on 2 December, 2022
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 29 Case :- SPECIAL APPEAL No. - 235 of 2017 Appellant :- Rekha Devi Respondent :- State Of U.P. And 5 Others Counsel for Appellant :- Rajesh Kumar Srivastava,Gaurav Sharan Srivastava Counsel for Respondent :- C.S.C. Hon'ble Manoj Misra,J.
Hon'ble Vikas Budhwar,J.
Heard learned counsel for the appellant; and learned Additional Chief Standing Counsel for the respondents 1 and 2.
As the respondents 3 to 6 are proforma respondents, we do not deem it appropriate to issue notices to them and therefore this matter is being finally decided after hearing the counsels for the contesting parties.
The appellant on death of her father in harness on 03.06.2013 made a claim for compassionate appointment. The said claim was rejected on the ground that she is a married daughter of the deceased employee and since a married daughter is not included amongst the dependents/family of the deceased employee entitled to compassionate appointment, her claim is not acceptable. The order rejecting her claim dated 30.08.2016 was challenged in Writ-A No.51486 of 2016 which was dismissed by the impugned judgment and order dated 15.11.2016.
Questioning the order dated 15.11.2016 passed by the learned Single Judge in Writ-A No.51486 of 2016, this intra court appeal has been filed.
The contention of the learned counsel for the appellant is that by a Division Bench judgment in Vimla Srivastava Vs. State of U.P. and another: 2016 (1) ADJ 21 the word 'unmarried' prefixed to daughter in the definition of family in Rule 2 (c)(iii) of the Dying in Harness Rules, 1974 has been struck down as ultra vires articles 14 and 15 of the Constitution therefore, the claim of the petitioner for compassionate appointment would have to be accorded fresh consideration.
The learned Standing Counsel submitted that the learned Single Judge has placed reliance on a Full Bench decision of this Court in Km. Shehnaj Begum Vs. State of U.P. and others in Special Appeal No.1343 of 2011 wherein it was held that the definition of 'family' in the Dying in Harness Rules, 1974 cannot be expanded therefore, the benefit of the Division Bench order cannot be provided to the appellant. Moreover, the amendment in the Dying in Harness Rules, 1974 made in the year 2021 cannot confer any benefit to the writ petitioner as it would be applicable prospectively whereas, for the writ petitioner, the cause of action had arisen in the year 2013.
In response to the above submission, the learned counsel for the appellant has submitted that the Full Bench decision has not tested the vires of the definition of family as found in 1974 Rules. In so far as Vimla Srivastava's judgment is concerned, that declares the word 'married' prefixed to daughter as ultra vires articles 14 and 15 of the Constitution and once the same has been struck down by this Court and that judgment continues to hold the field, the authorities would have to accord consideration to the claim of the daughter of the employee who died in harness regardless of the daughter being married. In support of the above submission, the learned counsel for the appellant has placed reliance on a Division Bench decision of this Court dated 23.12.2015 in Special Appeal Defective No.863 of 2015: Neha Srivastava Vs. State of U.P. and another as also another Division Bench decision dated 08.07.2021 in Special Appeal No.1343 of 2011 (Km Shehnaj Begum Vs. State of U.P. and others) wherein a similar issue had arisen which was disposed off in following terms:-
"Heard Sri Manish Kumar Nigam, learned counsel for the appellant and learned chief standing counsel for the respondents.
By this appeal challenge is made to the judgment dated 26.4.2011 whereby the writ petition was dismissed. It was filed to seek compassionate appointment by the divorced daughter.
The definition of family given under U.P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 (hereinafter referred to as the 'Rules, 1974') was not permitted consideration of application by a married daughter. The learned single Judge dismissed the writ petition in reference to several judgments on the issue. Since there were conflicting judgments of the Division Benches, the matter was referred to the Larger Bench and the questions framed were answered though the issue as to whether divorced daughter can claim compassionate appointment was kept open. The appellant is a divorced daughter and accordingly the prayer is made by the counsel for the appellant to decide the issue about her entitlement to get compassionate appointment.
It is submitted that the Division Bench of this Court in the case of Smt. Vimla Srivastava vs. State of U.P and another [2016 (1) ADJ 21 (DB)] struck down the word 'unmarried' appearing in the definition of family. It is to provide consideration of application of married as well as unmarried daughters. After the judgment aforesaid, the State of Uttar Pradesh amended the Rules 1974 to provide consideration to the married daughters also. In the light of the aforesaid, prayer is to set aside the judgment of the Single Bench with acceptance of the writ petition so as the appeal. The respondents may be directed to consider the case of the petitioner for compassionate appointment.
We have considered the submission made by the counsel for the appellant so as the chief standing counsel.
The petitioner-appellant sought compassionate appointment being a divorced daughter. The application was submitted within the period given under Rule 5 of the Rules, 1974. She was denied compassionate appointment with reference to the definition of 'family' given under Rules 1974. The definition of 'family' was including only unmarried daughter. The petitioner was married but later on divorced. The fact now remains that married as well as unmarried daughter can claim appointment under Rule 1974. It is not only in reference to the judgment of this Court in the case of Smt. Vimla Srivastava (supra) but pursuant to the amended Rules. The Full Bench judgment of this Court would not apply to this case and otherwise the issue in reference to the divorced daughter was kept open. Since the Rules defining the family has been struck down to the extent of use of word 'unmarried', the petitioner is thus entitled to consideration for her appointment on compassionate ground.
In view of the above, judgment of the learned single Judge so as the decision of the respondents are set aside and the appeal is allowed with the direction to the respondents to consider the case of the petitioner for compassionate appointment as per Rules 1974. It would be within six months from the date of receipt of this order."
Learned counsel for the appellant has also informed us that against the decision of the Division Bench of this Court in Neha Srivastava's case (supra) the State went in appeal to the Apex Court but the Special Leave to Appeal (C) No.22646 of 2016 was dismissed summarily vide order dated 23.07.2019 therefore, the view taken in Vimla Srivastava's case (supra) stands.
Having considered the rival submissions and having noticed that the decision of this Court in Smt. Vimla Srivastava's case (supra) has not been set aside and thereafter the Rules have also been amended by the State to bring them in conformity with the decision of this Court, the claim of the appellant being the daughter of the deceased employee would have to be considered on merits afresh, in accordance with law.
Consequently, the appeal is allowed. The judgment and order of the learned Single Judge dated 15.11.2016 in Writ-A No.51486 of 2016 is set aside with a direction upon the respondents to consider the case of the appellant for compassionate appointment as per the 1974 Rules and in accordance with law and take appropriate decision thereon, preferably, within a period of three months from the date a copy of this order is produced in the office of second respondent (District Magistrate, Maharajganj).
It is clarified that if there is any competing claim for compassionate appointment in lieu of death of the employee concerned, the same shall also be considered as per law and on its merit.
Order Date :- 2.12.2022 AKShukla/-