Court No. - 6
Case :- WRIT - A No. - 6640 of 2021
Petitioner :- Smt. Manju
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Ram Dayal Tiwari,Sr. Advocate Sri.
M.D. Singh Shekher
Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
The present petition has been filed challenging the order dated 6.1.2021 (Annexure-14 to the writ petition), whereby the claim of the petitioner for appointment under Dying-in-harness Rules in place the father of the petitioner, who died in harness, has been rejected, merely on the ground that the petitioner as well as the other daughters of the deceased being married were not entitled for appointment.
Learned counsel for the petitioner argues that the said issue is no more alive and has been specifically decided by this Court in the leading case of Smt. Vimla Srivastava Vs. State of U.P. and another; 2016 (1) ADJ 21, wherein the expression "family", used in Rule 2 (C) of the Dying-in-harness Rules, has been held to be illegal and unconstitutional and violative of Articles 14 and 15 of the Constitution of India and thus in terms of the said judgment, it has now well settled that a married daughter are also eligible for appointment under the Dying-in-harness Rules.
In that context, the order dated 6.1.2021 is set aside as the same is contrary to the law as laid down in the case of Smt. Vimla Srivastava (Supra).
The other question that has arisen in the matter is that the deceased was working as a Lekhpal in Tehsil Mohammadabad and died while in service on 18.8.2019. Admittedly, he was survived by his wife namely Dharmawati and two daughters Manju Devi and Kusum Kumari. An affidavit was filed by the mother of the petitioner Dharmawati before the District Magistrate to the effect that out of two daughters, the elder daughter Manju Devi stayed with Dharmawati and she looks after her and thus she requested that the appointment be granted to Manju Devi. She also specified that Kusum Kumari is married and stays away whereas Manju Devi stays with the mother.
Initially, the other sister of the petitioner Kusum Kumari also filed an affidavit that the appointment be given to the petitioner that means that she relinquished her right in favour of her elder sister Manju Devi, the present petitioner. It is on record that subsequently the said Kusum Kumari moved an application that she is entitled for appointment on compassionate ground as she is graduate and her elder sister Manju Devi, the present petitioner, is illiterate.
In that context, it is said that a dispute has arisen as to who should get the employment under the Dying-in-harness Rules on account of death of the father of the petitioner.
Rule 5 of the Dying-in-harness Rules, 1974 provides for grant of appointment to a family member, who is not already employed. The word "family" has been defined under Section 2(c) of the said Rules, which is as under:-
"[(c) "family" shall include the following relations of the deceased Government servant:
(i) Wife or husband;
(ii) Sons/adopted sons;
(iii) Unmarried daughters, unmarried adopted daughters, widowed daughters, and widowed daughter-in-law;
(iv) unmarried brothers, unmarried sisters and widowed mother dependent on the deceased Government servant, if the deceased Government servant was unmarried;
(v) aforementioned relations of such missing Government servant who has been declared as "dead" by the competent Court;
Provided that if a person belonging to any of the above mentioned relations of the deceased Government servant is not available or is found to be physically and mentally unfit and thus ineligible for employment in Government service, then only in such situation the word "family" shall also include the grandsons and the unmarried granddaughters of the deceased Government servant dependent on him.]"
A plain reading of the said definition indicates that while defining the word "family", the same has been divided into five sub sections, at serial no. 1, it is the wife or husband of the deceased, who is entitled for employment under the Dying-in- harness Rules and if wife or husband is not available then sons/adopted sons and if the sons and adopted sons is not available, then unmarried daughters, etc. The said Rule 2(c) (iii) was interpreted in the case of Smt. Vimla Srivastava (Supra) to hold that provisions of use of word "unmarried" pre-fixed before "daughters" of said Rule 2(c) (iii) was held arbitrary, illegal and unconstitutional. Thus, after the said judgment, Clause (iii) of Rule 2(c) has to be read as "daughters".
It is well settled that the whole scheme of providing employment to the heirs of the deceased is to mitigate the financial difficulties faced by the family on account of the death of the bread earner of the family. In the present case, after the death of the father of the petitioner, it was the mother, who was entitled to get employment under the Dying-in-harness Rules firstly will be the mother. Once it is clear that the mother has relinquished her right in favour of one of the daughter, which relinquishment that will determine the authority or the right of the person to whom the employment should be given. The said interpretation is in consonance to the scheme of the Rules, which aim at mitigating the financial difficulties faced by the family after death of the deceased.
In the present case, the wife who is facing the financial difficulties at the first instance and thus she was entitled to claim employment and as she has relinquished the said right in favour of her elder daughter Manju Devi, the petitioner herein, thus there is no doubt that it is the petitioner, who is eligible to get the employment on compassionate grounds to the exclusion of the other sister.
The writ petition is allowed with a direction to the respondent no. 2 to grant employment to the petitioner subject to the other requirements of the Rules, if any. The said exercise shall be carried out by the District Magistrate expeditiously, preferably within a period of two months from the date of service of a copy of this order before the respondent no. 2.
Copy of the order downloaded from the official website of this Court shall be treated/accepted as certified copy of this order.
Order Date :- 30.7.2021
S. Rahman