The petition seeks issuance of a writ in the nature of certiorari quashing impugned order dated 11.04.2016 passed by respondent no.2/Executive Engineer, Irrigation Division, Rae Bareli.
The petition also seeks issuance of a writ in the nature of mandamus directing respondents to reconsider the case of the petitioner for appointment on compassionate grounds on appropriate post under U.P. Recruitment of Dependents of Government Servant Dying in Harness Rules, 1974.
Brief facts of the case are that the petitioner's father Shri Om Prakash was employed in the Irrigation Department in the year 1976 as Roller Operator. After his death on 05.05.1986, her mother Mrs. Chandrawati was appointed as Peon and posted in Sub Division Bachharawan functioning under Executive Engineer, Irrigation Division, Rae Bareli. Marriage of the petitioner was solemanised with Shri Jitendra Kumar, R/o Village Mankhera, Post Kankaha, District Lucknow. The petitioner's mother died on 12.09.2009. The petitioner's husband is also unemployed and he was also dependent on petitioner's mother (now deceased). After death of the petitioner's mother, the petitioner has no source of income. She applied for appointment on compassionate grounds under U.P. Recruitment of Dependents of Government Servant Dying in Harness Rules, 1974 (hereinafter referred as 'dying in harness rules') on 19.11.2009 and when no order was passed, she again applied for the same on 28.09.2012 and 26.10.2012 but again no order was passed on the said applications. The petitioner filed a writ petition bearing No.1328 (SS) of 2015 which was disposed of vide order dated 23.12.2015 with a direction to the competent authority to consider and decide petitioner's application for compassionate appointment keeping in mind the law settled. Vide impugned order dated 11.04.2016 (supra), the Executive Engineer rejected the claim of the petitioner. Hence, the writ petition has been filed.
Learned counsel for the petitioner has submitted that the impugned order dated 11.04.2016 (supra) has been passed by respondent no.2 in utter denial of the verdict of Hon'ble Supreme Court as well as this Court passed in several judgments. It is submitted that now the law is settled that under Section 2C of dying in harness rules, the petitioner/married daughter is also included in the 'member of family'. Thus, while passing the impugned order, the concerned authority has not considered the legal position as also not taken into consideration the several judgments passed by Hon'ble Supreme Court as well as this Court from time to time. The impugned order is illegal, arbitrary and contrary to the law settled and deserves to be quashed.
Per Contra, learned counsel appearing for the State has opposed the petition on merit, however has acceded to the legal position laid down by Hon'ble Supreme Court as well as this Court.
Counter and rejoinder affidavits have been filed by the parties and are available on record.
I have heard learned counsel for the parties and perused the record.
The Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 have been framed under the proviso to Article 309 of the Constitution and regulate the grant of compassionate appointment to the members of the family of a government servant who dies in harness. The Rules define the expression "family" to include, among others, "unmarried daughters and unmarried adopted daughters". The Rules also bring sons and adopted sons within the ambit of a family. The eligibility of a son or adopted son is not conditioned by marital status. The challenge in these proceedings is to the stipulation that only an unmarried daughter falls within the definition of the expression "family". as a consequence of the condition, a married daughter ceases to fall within the family of a deceased government servant for the purpose of seeking compassionate appointment.
Rule 2(c) of the Dying-in-Harness Rules defines the expression "family" in the following terms:
"2(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 daughters-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."
In exploring the nature of the constitutional challenge which has been addressed in these proceedings, it would at the outset be necessary to dwell briefly on the nature and purpose of compassionate appointment. The object and purpose of compassionate appointment is to provide ameliorative relief to the family of a government servant who has died in harness. Compassionate appointment is an exception to the principle that there must be an equality of opportunity in matters of public employment under Article 16 of the Constitution. Equality of opportunity postulates a level playing field where all eligible persons are entitled to compete in an effort to secure public employment. The basis of the exception that is carved out by the Dying-in-Harness Rules is that the death of a wage earner while in the service of the State imposes severe financial hardship on the family faced with an untimely death. Compassionate appointment is intended to provide immediate financial support to such a family by stipulating that upon the death of its wage earner while in harness as a government servant, another member of the family would be granted appointment. Compassionate appointment is not a reservation of a post in public employment but is in the nature of an enabling provision under which a member of the family of a deceased government servant who has died while in harness can seek appointment based on financial dependency and need.
Rule 5 of the Dying-in-Harness Rules provides that such an appointment is contemplated to be given to a member of the family of a deceased government servant who has died in harness where the spouse of the government servant is not already employed with the Central or the State Governments or a Corporation owned by them. Moreover, a member of the family who is not already employed with the Central or State Governments or their Corporations can be given suitable employment in government service in relaxation of the normal recruitment rules. Such an appointment can be granted if the person (i) fulfills the educational qualifications prescribed for the post; (ii) is otherwise qualified for government service; and (iii) makes an application for employment within five years from the date of the death of the government servant. The rationale for imposing the requirement of the application being made within five years is that the nexus between the grant of employment and the need of the family is preserved. That is because after a lapse of time the sense of need or dependency may cease to exist both financially and otherwise. However, Rule 5 enables the time limit to be dispensed with or relaxed for the purpose of dealing with a case in a just and equitable manner where undue hardship is shown. Where compassionate appointment is provided under Rule 5, there is an obligation under the rule for the person appointed to maintain the other members of the family of the deceased government servant who were dependent on him/her immediately before the death occurred and who are unable to maintain themselves. When the person appointed neglects or refuses to maintain a person whom he or she is liable to maintain, the services are liable to be terminated under the Conduct, Discipline and Appeal Rules.
The basic rationale and the foundation for granting compassionate appointment is thus the financial need of the family of a deceased government servant who has died in harness and it is with a view to alleviate financial distress that compassionate appointment is granted.
The issue before the Court is whether marriage is a social circumstance which is relevant in defining the ambit of the expression "family" and whether the fact that a daughter is married can constitutionally be a permissible ground to deny her the benefit of compassionate appointment.
In the judgment of this Court in Isha Tyagi v. State of U.P. - Writ C No.41279 of 2014, a Division Bench considered the legality of a condition which was imposed by the State Government while providing horizontal reservation to descendants of freedom fighters. The condition which was imposed by the State excluded the children of the daughter of a freedom fighter from seeking admission to medical colleges in the State under an affirmative action programme. Holding this to be unconstitutional, the Division Bench held as follows:
"It would be anachronistic to discriminate against married daughters by confining the benefit of the horizontal reservation in this case only to sons (and their sons) and to unmarried daughters. If the marital status of a son does not make any difference in law to his entitlement or to his eligibility as a descendant, equally in our view, the marital status of a daughter should in terms of constitutional values make no difference. The notion that a married daughter ceases to be a part of the family of her parents upon her marriage must undergo a rethink in contemporary times. The law cannot make an assumption that married sons alone continue to be members of the family of their parents, and that a married daughter ceases to be a member of the family of her parents. Such an assumption is constitutionally impermissible because it is an invidious basis to discriminate against married daughters and their children. A benefit which this social welfare measure grants to a son of a freedom fighter, irrespective of marital status, cannot be denied to a married daughter of a freedom fighter."
Dealing with the aspect of marriage, the Division Bench held as follows:
"Marriage does not have and should not have a proximate nexus with identity. The identity of a woman as a woman continues to subsist even after and notwithstanding her marital relationship. The time has, therefore, come for the Court to affirmatively emphasise that it is not open to the State, if it has to act in conformity with the fundamental principle of equality which is embodied in Articles 14 and 15 of the Constitution, to discriminate against married daughters by depriving them of the benefit of a horizontal reservation, which is made available to a son irrespective of his marital status."
In Vijaya Manohar Arbat v. Kashirao Rajaram SawaI - AIR 1987 SC 1100, the Supreme Court held in the context of the provisions of Section 125 of the Code of Criminal Procedure 1973 that "a daughter after her marriage does not cease to be a daughter of the father or mother".
The same principle was applied in Githa Hariharan v. Reserve Bank of India - (1999) 2 SCC 228 while defining the ambit of the expression "the father, and after him, the mother" in Section 6(a) of the Hindu Succession Act, 1956. The Supreme Court observed that if the word ''after' was read to mean that a mother would be disqualified from acting as a guardian of a minor during the lifetime of the father, this would run counter to the constitutional mandate of gender equality and will lead to an impermissible differentiation between males and females. Interpreting the word ''after', the Supreme Court held that it does not necessarily mean after the death of the father but would mean in the absence of, whether temporary or otherwise or in a situation of the apathy of the father or his inability to maintain the child.
In National Legal Services Authority v. Union of India - (2014) 5 SCC 438, the Supreme Court recognized that gender identity, is an integral part of sex within the meaning of Articles 15 and 16 and no citizen can be discriminated on the ground of gender. The Supreme Court observed as follows:
"We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community."
In Smt. Vimla Srivastava v. State of U.P. & Anr. - Writ - C No.60881 of 2015 Dated 04.12.2015, a Division Bench of this Court has struck down the word 'unmarried' in Rule 2 (c) (iii) of Dying-in-Harness Rules and hold that 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.
In view of the above, the instant petition is allowed.
Impugned order dated 11.04.2016 passed by respondent no.2/Executive Engineer, Irrigation Division, Rae Bareli is hereby quashed.
A mandamus is issued to the Executive Engineer, Irrigation Division, Rae Bareli to consider the petitioner's claim for compassionate appointment, in accordance with law, which shall mean without reference to her marital status, within a period of three months from the date of production of a copy of this order.
No order as to costs.
Order Date :- 25.1.2021 nishant/-