Allahabad High Court
Smt. Santoshi vs State Of U.P. And 2 Others on 21 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 604
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 05 Case :- WRIT - A No. - 834 of 2020 Petitioner :- Smt. Santoshi Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Jadu Nandan Yadav,Arimardan Yadav Counsel for Respondent :- C.S.C. Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Agnivesh holding brief of Sri Arimardan Yadav, learned counsel for the petitioner and Sri Shyam Sundar, learned standing counsel for the State-respondents.
2. This writ petition has been filed praying for the following relief:
"(i) Issue a writ, order or direction in the nature of mandamus directing the respondents to permit the petitioner for remarriage without effecting the services of the petitioner."
3. Briefly stated facts of the present case are that the husband of the petitioner, namely Dharmendra Kumar was a class-IV employee in the respondent No.3 - Institution. During tenure of his service, he died on 06.03.2011. Therefore, the petitioner applied for her appointment on compassionate ground and she was appointed as a class-IV employee by appointment letter dated 23.12.2011, under the Uttar Pradesh Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974. Now the petitioner wants to remarry with her devar (real younger brother of her husband), namely Sri Ranjeet Kumar. Averments in this regard has been made in paragraph-8 of the writ petition. In paragraph-9 of the writ petition, it is stated that the respondents are not permitting the petitioner to remarry with her devar Ranjeet Kumar.
4. Learned counsel for the petitioner submits that the respondent Nos.2 and 3 have threatened that if the petitioner remarries with her devar, then action may be taken against her since her appointment was made on compassionate ground as she has to maintain the dependants of her deceased husband. Learned counsel for the petitioner states that the petitioner shall maintain dependants of her deceased husband including her mother-in-law. Learned counsel for the petitioner further states that to show her bona fide, the petitioner would pay every month, one third of her salary to her mother-in-law after she contracts marriage with her devar.
5. I have carefully considered the submissions of the learned counsel for the petitioner and the learned standing counsel.
6. The petitioner has obtained employment on compassionate ground under Rule 5 of the Uttar Pradesh Recruitment of Dependants of Government Servant Dying in Harness Rules, 1974 (hereinafter referred to as 'the Rules, 1974'), which is reproduced below:
"5. Recruitment of a member of the family of the deceased - (1) In case a Government servant dies in harness after the commencement of these rules, and the spouse of the deceased Government servant is not already employed under the Central government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purpose, be given a suitable employment in Government Service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules if such person -
(i) fulfils the educational qualifications prescribed for the post:
Provided that in case appointment is to be made on a post for which typewriting has been prescribed as an essential qualification and the dependent of the deceased Government servant does not possess the required proficiency in typewriting, he shall be appointed subject to the condition that he would acquire the requisite speed of 25 words per minute in typewriting well within one year and if he fails to do so, his general annual increment shall be withheld and a further period of one year shall be granted to him to acquire the requisite speed in typewriting and if in the extended period also he again fails to acquire the requisite speed in typewriting, his services shall be dispensed with.
Provided further that in case appointment is to be made on a post for which the knowledge of computer operation and typewriting has been prescribed as an essential qualification and the dependent of the deceased Government servant does not possess the required proficiency in computer operation and typewriting, he shall be appointed subject to the condition that he would acquire the 'CCC' certificate in computer operation awarded by the DOEACC Society or a certificate equivalent thereto from an Institution recognized by the Government together with the required speed of 25 words per minute in typewriting well within one year and, if he fails to do so, his general annual increment shall be withheld and a further period of one year shall be granted to him to acquire the required certificate in computer operation and the required speed in typewriting and if in the extended period also he again fails to acquire the required certificate in computer operation and the required speed in typewriting, his services shall be dispensed with."
(ii) is otherwise qualified for Government service; and
(iii) makes the application for employment within five years from the date of the death of the Government servant:
Provided that where the State Government is satisfied that the time limit fixed for making the application for employment causes undue hardship in any particular case, if may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner:
Provided further that for the purpose of the aforesaid proviso, the person concerned shall explain the reasons and give proper justification in writing regarding the delay caused in making the application for employment after the expiry of the time limit fixed for making the application for employment along with the necessary documents/proof in support of such delay and the Government shall, after taking into consideration all the facts leading to such delay, take the appropriate decision."
(2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death.
(3) Every appointment made under sub-rule (1) shall be subject to the condition that the person appointed under sub-rule (1) shall maintain other members of the family of deceased Government servant, who were dependent on the deceased Government servant immediately before his death and are unable to maintain themselves.
(4) Where the person appointed under sub-rule (1) neglects or refuses to maintain a person to whom he is liable to maintain under sub-rule (3), his services may be terminated in accordance with the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, as amended from time to time."
7. From perusal of Rule 5 of the Rules, 1974, it is clear that appointment of dependent of a deceased employee under Rule 5 of the Rules, 1974 is conditional. The conditions are provided in sub-Rules (3) and (4) of Rule 5. Therefore, a person obtaining appointment under Rule 5(1) of the Rules, 1974 is bound to maintain other members of the family of the deceased government servant, who were dependent on the deceased government servant immediately before his death and are unable to maintain themselves. If the person so appointed under Rule 5(1) of the Rules, 1974 neglects or refuses to maintain a dependent of the deceased employee to whom he is liable to maintain under sub-Rule (3), then services of such compassionate appointee may be terminated under sub-Rule (4) in accordance with the provisions of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, as amended from time to time. But the appointment of the dependent of the deceased employee under Rule 5(1) of the Rules, 1974, cannot be interfered with solely on the ground that he/ she has contracted remarriage. Remarriage is not restricted by the Rules, 1974.
8. Remarriage is a personal choice of the petitioner who has obtained employment on compassionate ground under the Rules, 1974, which does not curtail employment of the petitioner on remarriage. Even after remarriage, the petitioner is bound to comply with the provisions of sub-Rule (3) failing which he may suffer consequences under sub-Rule (4) of Rule 5.
9. Right to marry with person of choice, is an integral part of Article 21 of the Constitution of India. Companionship of choice by remarriage by a widow cannot be denied as companionship is one of the faculties by which life can be enjoyed. Merely because compassionate appointment has been obtained by the petitioner, she cannot be forced to sacrifice her fundamental right under Article 21 of the Constitution of India. In the relevant Rules as enacted dealing with disciplinary proceedings, remarriage has not been mentioned as one of the misconduct, disqualifications or disabilities. This is possibly for reason that fundamental rights under Article 21 of the Constitution of India, cannot be curtailed on account of remarriage by a widow. Even if a statutory provision is enacted to prohibit remarriage by a widow, as a condition for employment under the dying in harness Rule, its validity may be liable to challenge for breach of fundamental rights guaranteed under Article 21 of the Constitution of India.
10. In Smt. Subhwanti Devi vs. Siksha Adhikshak, Basic Siksha, Nagar Chetra, Allanabad and others, 1988 UPLBEC 80 (paras-8 and 9), a Division Bench of this court considered termination of an employee on the ground of remarriage and held that remarriage may be a social or biological human necessity or it may be on account of oppressive or aggressive nature of certain anti-social elements but that cannot be made the basis for termination of service.
11. In Municipal Employees' Union vs. Additional Commissioner (Water) DWS & SDU and another, 1996 (73) FLR 963 (Paras-8 and 10), a Division Bench of Delhi High Court considered the similar controversy of remarriage of a widow and held that there being no restraint by any personal law against remarriage, she is entitled to remarry. Even if a Rule prohibiting remarriage exists, it may be liable to challenge for breach of Article 21 of the Constitution of India. Even if any such condition is imposed in any contract of employment restricting a widow to remarry, that would be ultra vires to the provisions of Article 21 of the Constitution of India and will be of no effect in law.
12. In Civil Misc. Writ Petition No.19016 of 2013 (Smt. Anikta Srivastava vs. State of U.P. and others), decided on 11.04.2013, a Bench of this court considered similar controversy and held as under:
"Remarriage is a personal choice of the petitioner and same can not at all be curtailed in any manner whatsoever, under the provisions of Dying in Harness Rule, 1974 as on compassionate appointment being offered she will have to comply with the obligation that which has been cast upon her i.e. to maintain the family members of deceased and in the event of failure to maintain, she can be subjected to the disciplinary proceeding and nothing beyond the same. Authority concern could not have insisted and asked the petitioner to file undertaking that she would not remarry in future and taking of such an undertaking would be clearly violative of Article 21 of the Constitution of India, inasmuch as right to marry a person of owns choice has been curtailed.
Apex Court, in the case of Kapila Hingorani Vs. State of Bihar 2003(6) SCC1 , has proceeded to mention that term life used in Article 21 has a wide and for reaching concept. It means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and localities by which life is enjoyed. Right to marry person of ones choice, has been accepted as integral part of Article 21 of Constitution a per the judgment of Apex Court, in the case of Lala Singh Vs. State of U.P. One cannot be denied of companionship, as companionship is one of the faculties by which life can be enjoyed, and merely because compassionate appointment ha been provided, a person cannot be forced to sign affidavit sacrificing his/her fundamental right, that in future remarriage will not at all be contracted . The employer has in effect misused his dominant status of employer by asking for such an affidavit. This Court also in the case of Smt. Subhwanti Devi Vs. Shiksha Adhikshak 1988 U.P.L.B.E.C. 80 (DB) has taken the view, that remarriage may be a social or a biological human necessity, but same can never be made for termination of service, and remarriage has not at all been defined as one of the misconduct, disqualifications or disabilities. "
13. In Special Leave to Appeal (C) No.16315 of 2017 (Smt. Premlata Acharya vs. Suman Acharya and others), decided on 28.07.2017, Hon'ble Supreme Court considered similar controversy in the matter of payment of family pension while considering the provisions of the Rajasthan Compassionate Appointment of Dependants of Deceased Government Servants Rule, 1996 and observed that the family pension should continue to be paid to the grandfather of the children for the benefit of the children as per the Rules and 50% of the salary of the widow who remarried leaving her children with the maternal grandfather of the children, should continue to be paid for the children until the last of them attains the age of 25 years.
14. For all the reasons afore-stated, the writ petition is disposed off making it open to the petitioner that she is free to contract her remarriage. She shall give an undertaking in the form of an affidavit before the respondent Nos.2 and 3 that she shall pay one third of her salary to her mother-in-law every month, after she contracts the remarriage and shall continue to pay it to her mother-in-law till her (mother-in-law) life time.
15. With the aforesaid observations, the writ petition is disposed off.
Order Date :- 21.1.2020 NLY