Court No. - 55
Case :- SPECIAL APPEAL No. - 1130 of 2011 Appellant :- Smt. Sudha Jain Respondent :- State Of U.P. And Others Counsel for Appellant :- H.N. Pandey Counsel for Respondent :- C.S.C.,Ajay Kr. Sharma,Ajay Kumar Pandey
Hon'ble Vikram Nath,J.
Hon'ble Saurabh Shyam Shamshery,J.
Heard Sri H.N. Pandey, learned counsel for the appellant and Sri Gopal Chandra Saxena, learned counsel for the respondent no.1. No one is present on behalf of the other respondents although the names of Sri Ajay Kumar Pandey and Sri Ajay Kumar Sharma, Advocates are printed in the cause list from the side of the respondents.
Present Special Appeal is directed against the judgment and order dated 29.04.2011 passed by learned Single Judge in Writ A No.30654 of 2008 (Smt. Sudha Jain vs. State of U.P. and others), by which, the writ petition filed by the appellant was dismissed, on the ground that 'widowed daughter-in-law' was not included within the definition of 'family' in section 2(c) of the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974.
In the present case Smt. Shashi Bala Jain, Head Mistress at Primary School, Pinna, Vikas Shetra Vaghara, Muzaffarnagar, died on 14.12.2007 leaving behind appellant (widowed daughter-in-law) wife of her only son who died on 2.7.2001. Appellant also has two minor sons and one minor daughter from wedlock.
Appellant had applied for appointment under the U.P. Government Servant Dying in Harness Rules, 1974 and she was appointed as Class IV employee by the order dated 28.04.2008 passed by District Basic Education Officer, Muzaffarnagar. The appellant joined the service on 1.5.2008. The District Basic Education Officer, Muzaffarnager on the basis of certain complaint cancelled the order of appointment by order dated 6.6.2008, on the ground that dispute regarding succession was pending and appointment was obtained by withholding some relevant information.
The appellant challenged the order dated 6.6.2008 before the Single Judge in Writ-A No.30654 of 2008. Learned Single Judge dismissed the writ petition by order dated 29.04.2011. The learned Single Judge held that “in the facts and circumstances of the case, this Court has no hesitation to hold that widowed daughter-in-law is not within the definition of family for being considered for appointment on compassionate ground, in view of the the Division Bench of this Court in the case of Basic Shiksha Adhikari, Hardoi vs. Madhu Mishra and others, reported in 2009 (27) LCD 995.”
During the pendency of the petition, the order dated 06.06.2008 passed by District Basic Education Officer, Muzaffar Nagar remained stayed.
The appellant has challenged the order dated 29.04.2011 in the present Special Appeal. By order dated 29.07.2011, present Special Appeal was admitted and impugned order was also stayed with the direction that the appellant will continue on the post, on which she was working.
Today counsel of the parties brought into the notice of the Bench that by way of Uttar Pradesh Recruitment of Dependents of Government Servant Dying-in-Harness (IXth Amendment) Rules, 2011 'widowed daughter-in-law' is also included within the definition of 'family' in Section 2 of the Act. The said rule is reproduced below-
“ THE UTTAR PRADESH RECRUITMENT OF DEPENDANTS GOVERNMENT SERVANTS DYING IN HARNESS (NINTH AMENDMENT) RULES, 2011.
1. (1) These rules may be called The Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness (Ninth Amendment) Rules, 2011.
(2) They shall come into force at once.
2. In the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974, in rule 2, for existing clause (c) set out in column 1 below, the clause as set out in column 2 shall be substituted, namely:-
In view of the above mentioned development, whereby through amendment 'widowed daughter-in-law' is now included within the word 'family, the appellant who is a 'widowed daughter-in-law' is entitled for the appointment under the Rules of 1974. The appellant is already working on the post since 2008, therefore, in the interest of justice she shall be allowed to work on the post, she is working.
Accordingly the appeal is allowed and the order dated 29.04.2011 passed by learned Single Judge as well as the order dated 06.06.2008, passed by the District Basic Education Officer, Muzaffarnagar is set aside.
Order Date :- 22.1.2019 RPS [Saurabh Shyam Shamshery, J.] [Vikram Nath, J.]