Court No. - 36
Case :- WRIT - A No. - 10055 of 2021 Petitioner :- Smt. Sanju Yadav Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ashutosh Kumar Tiwari,Ram Bilas Yadav Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the petitioner and learned Standing Counsel.
Present writ petition has been preferred assailing the validity of the order dated 1.2.2021 passed by Commandant 35th Battalion, P.A.C., Lucknow by which the claim of the petitioner for compassionate appointment has been rejected on the ground that she is married daughter, who does not come under the purview of dependent of deceased employee.
The record in question reflects that the father of the petitioner late Jairam Yadav working as Head Constable died-in-harness 24.8.2020 leaving behind Smt. Sheela Devi (wife) and Smt. Sanju (daughter)-the petitioner. The mother of the petitioner moved an application on 5.1.2021 to accord compassionate appointment to her married daughter having requisite qualifications, who is also living with her and fully dependent upon her. However, by order impugned the said representation was rejected on the ground that the petitioner is married, therefore, she does not come under the definition of family as 'daughter'.
Submission of learned counsel for the petitioner is that Division Bench of this Court in the case of Vimla Srivastava and others Vs. State of U.P. and others (Writ-C No.60881 of 2015 decided on 04.12.2015) Laws (All) -2015-12-60 has decided the controversy by holding that married daughter also comes under the definition of daughter, therefore, the claim should be considered by the competent authority for appointment on compassionate ground. The order of Division Bench was challenged before Hon'ble Apex Court in Special Leave to Appeal (C) No.22646/2016; The State of Uttar Pradesh and another Vs. Neha Srivastava, which has been decided vide judgment and order dated 23.07.2019 by dismissing the petition. In view of the above, the ratio of the judgment of the Division Bench of this Court has been upheld.
In the light of the aforesaid, submission of learned counsel for the petitioner is that the impugned order cannot sustain on the dictum of the Division Bench of this Court. He, therefore, submitted that the impugned order is liable to be set aside and the writ petition deserves to be allowed.
On the other hand, learned counsel for the respondents does not dispute the ratio of the judgment relied upon by learned counsel for the petitioner and submitted that the controversy in regard to appointment of married daughter in different government departments has been settled by Division Bench of this court as well as by Hon'ble Apex Court, therefore, the issue is no more res integra.
On perusal of the impugned order, it is evident that the claim of the petitioner has been rejected only on the ground that she is married daughter of the deceased employee.
I have gone through the Division Bench judgment of this Court in the case of Vimla Srivastava and others (Supra) and Special Leave to Appeal (C) No.22646/2016 (Supra). The Division Bench of this Court in the case of Vimla Srivastava and others (Supra) upon consideration of the relevant provisions for appointment on compassionate ground has recorded as under:
"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."
The finding returned by the Division Bench was subject matter of challenge before the Hon'ble Supreme Court in Special Leave to Appeal (C) No.22646/2016 (Supra), which was dismissed on 23.07.2019 by affirming the ratio of the judgment of the Division Bench of this Court.
On perusal of the finding returned on the point that whether a married daughter is entitled for consideration of appointment on compassionate ground or not, the Division Bench of this Court has held that the married daughter also comes under the definition of daughter, therefore, she is entitled for consideration of appointment on compassionate ground.
In view of the above, the order impugned rejecting the claim of the petitioner for appointment on compassionate ground is hereby set aside.
The writ petition is allowed. The competent authority would be at liberty to consider the claim of the petitioner for compassionate appointment on the basis of all other relevant factors but her candidature would not be rejected merely on the ground of her marital status.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 13.8.2021 SP/