1. Heard learned counsel for the petitioner, learned Additional Chief Standing counsel for respondent No.1 and Sri Rishabh Kapoor, learned counsel for respondent Nos.2 and 3.
2. By means of present writ petition, the petitioner has prayed for the following reliefs :-
"(i) Issue a Writ/ Order or Direction in the nature of Certiorari quashing the impugned order of rejection dated 22.07.2021 (contain as annexure no.1 to the writ petition).
(ii) Issue a Writ/ Order or Direction in the nature of Mandamus directing the opposite parties to reconsider and appoint the petitioner on suitable post under dying in harness rules without further more delay and provide all the service benefits.
(iii)..."
3. Brief fact of the case is that father of the petitioner was working on the post of Executive Engineer in U.P. Jal Nigam who died while in service on 3.8.2015. The mother of the petitioner preferred applications on 25.8.2015 and 21.12.2015 stating therein that her daughter (petitioner) may be appointed on a suitable post after attaining the age of 18 years.
4. Submission of learned counsel for the petitioner is that the petitioner got married and after marriage she is owing and taking responsibility of the mother and younger sister in future. He submits that Division Bench of Allahabad High 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.
5. He submits that 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.
6. 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.
7. On the other hand, learned State Counsel and counsel representing other respondents do 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.
8. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.
9. On perusal of the impugned order dated 22.7.2021, it is evident that the respondent has rejected the claim of the petitioner only on the ground that she is married daughter of the deceased employee.
10. 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).
11. 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."
12. 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.
13. 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.
14. In view of the above, the impugned order dated 22.07.2021, rejecting the claim of the petitioner for appointment on compassionate ground, is hereby set aside.
15. The writ petition succeeds and is allowed.
16. However, the respondent No.3 is directed to consider the claim of the petitioner for appointment in accordance with her qualification in the light of observation made above and to pass appropriate order in accordance with law within a period of six weeks from the date of production of a certified copy of this order.
Order Date :- 29.7.2021 Gautam