1. Heard learned counsel for the petitioner, learned Standing Counsel appearing for respondent nos. 1 and 2 and Sri Ghaus Beg, learned counsel appearing for respondent no.3.
2. Under challenge is the order dated 05.07.2016 passed by respondent no.3, a copy of which is Annexure-1 to the writ petition, by which the claim of the petitioner for being appointed on compassionate ground under the rules has been rejected. A further prayer is for a mandamus commanding the respondents to give appointment to the petitioner on compassionate ground.
3. Learned counsel for the petitioner contends that the mother of the petitioner was working as Assistant Teacher in Primary School Meerganj, Block Tejwapur, District Bahraich when she died on 25.01.2013 during her service tenure itself. The petitioner in the capacity of being the only legal heir applied for being appointed on compassionate ground in the year 2015. When her application was not considered, she preferred Writ Petition No.6624 (SS) of 2015 and this Court vide order dated 03.12.2015 directed respondent no.3 to look into the matter and take appropriate decision on the claim of the petitioner. Subsequent thereto, respondent no.3 has passed the impugned order dated 05.07.2016 rejecting the claim of the petitioner for being appointed on compassionate ground.
4. Learned counsel for the petitioner contends that a perusal of the impugned order dated 05.07.2016 would indicate that the claim of the petitioner has been rejected primarily on the ground that the petitioner does not fall within the ambit of the Government Order dated 04.09.2000 which only provides for appointment of son, unmarried or widowed daughter, wife or husband while the petitioner is a married lady.
5. Learned counsel for the petitioner contends that the impugned order of rejection runs contrary to the law laid down by the Division Bench of this Court in the case of Neha Srivastava vs. State of U.P. and another passed in Special Appeal Defective No.863 of 2015 decided on 23.12.2015, wherein the Division Bench after considering the earlier Division Bench judgment in the case of Smt. Vimla Srivastava vs. State of U.P. and other passed in Writ Petition No.60881 of 2015 decided on 04.12.2015 has noted that the exclusion of married daughters from the ambit of the expression 'family' in Rule 2(c) of 1974 rules i.e. U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974, is illegal and unconstitutional. It is also contended that the judgment of Neha Srivastava (supra) has been affirmed by the Apex Court with the dismissal of Special Leave to Appeal (C) No.22646 of 2016 decided on 23.07.2019. It is thus contended that once the matter in issue pertaining to a married daughter being also entitled for being considered for compassionate appointment has been settled beyond doubt by the Division Bench of this Court as affirmed by the Apex Court consequently the impugned order of rejection would round foul to the aforesaid proposition of law. Thus, the impugned order dated 05.07.2016 merits to be quashed with further direction to the respondents to consider the claim of the petitioner for being appointed on compassionate ground.
6. On the other hand, learned Standing Counsel as well as Sri Ghaus Beg, learned counsel for respondent no.3, have supported the impugned order dated 05.07.2016 on the ground that once the rules do not themselves contemplate for appointment of a married daughter consequently there is no illegality or infirmity in the impugned order by which the claim of the petitioner for compassionate appointment has been rejected as admittedly the petitioner is the married daughter of the deceased employee.
7. Having heard learned counsel for the contesting parties and having perused the records, what comes out is that the respondents have proceeded to reject the claim of the petitioner for being appointed on compassionate ground solely on the ground that the Government Order dated 04.09.2000 does not contain any provision for consideration of case of a married daughter as only the provision is for consideration of case of son, unmarried daughter, widow daughter , wife or husband. However, this aspect of the matter has already been considered by a Division Bench of this Court in the case of Neha Srivastava(supra) considering the earlier Division Bench judgment in the case of Smt. Vimla Srivastava(supra). The Division Bench of this Court after considering the provisions has held as under:-
"Learned counsel for the petitioner, in support of his submissions, has placed reliance in the judgment passed by the Division Bench of this Court in Writ Petition No.60881 of 2015 (Smt. Vimla Srivastava v. State of U.P. & Anr.) decided on 04.12.2015 in which Hon'ble the Division Bench had proceeded to allow the claim of the married daughter for compassionate appointment and held 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 Art.14 and 15 of the Constitution. The relevant paragraphs of the judgment is reproduced hereunder:-
"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."
Shri Sanjay Kumar Singh, learned Standing Counsel has tried to defend the order passed by learned Single Judge on the ground that the order has been passed by learned Single Judge on 27.10.2015 and at the relevant pointed of time as per the definition of Rule 2 (c) of the Rules of 1974 the married daughter was excluded from the definition of 'family' for the purposes of compassionate appointment. It is submitted that learned Single Judge has rightly proceeded and passed the order, which was applicable at the relevant point of time.
Heard rival submissions and perused the record.
As indicated above, the coordinate Bench of this Court in Smt. Vimla Srivastava v. State of U.P. & Anr. (Supra) while proceeding with the matter had held that the exclusion of married daughters from the ambit of 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. The Court had also struck down the word 'unmarried' in Rule 2 (c) (iii) of the Dying-in-Harness Rules and proceeded to direct the respondent authorities to consider the claim of the applicant on the basis of all relevant facts and circumstances and directed that her right could not be excluded from consideration only on the ground of their marital status.
As the coordinate Bench of this Court has also decided the question, the same is binding on us and holds the field. The judicial propriety demands that the same view be followed by the coordinate Benches.
In view of the aforesaid facts and circumstances, the order impugned passed by learned Single Judge cannot sustain and is accordingly set aside. Consequently, it is directed that the competent authority would be at liberty to consider the claim for compassionate appointment of the petitioner on the basis of all the relevant facts and circumstances and the petitioner shall not be excluded from consideration for compassionate appointment only on the ground of her marital status.
The special appeal is allowed accordingly. "
The aforesaid judgment has also been affirmed by the Apex Court with the dismissal of the Special Leave to Appeal (C) No.22646 of 2016 filed by the State Government against the judgment of Neha Srivastava.
8. When the impugned order dated 05.07.2016 is seen in the light of the law laid down by the Division Bench of this Court in the case of Neha Srivastava (supra) what clearly comes out is that the impugned order rejecting the claim of the petitioner for compassionate appointment on the ground of a married daughter not being included in the Government Order dated 04.09.2000 is clearly unsustainable in the eyes of law.
9. Accordingly, the writ petition is allowed. A writ of certiorari is issued quashing the order dated 05.07.2016, a copy of which is Annexure-1 to the petition. A writ of mandamus is issued commanding the respondent no.3 to consider the case of the petitioner for compassionate appointment on the basis of all relevant facts and circumstances of the case and the petitioner shall not be excluded from consideration for compassionate appointment only on the ground of her marital status. The said consideration would be done within a period of three months from the date of receipt of a certified copy of this order.
Order Date :- 28.11.2019 A. Katiyar