Court No. - 53
Case :- WRIT - A No. - 12955 of 2019 Petitioner :- Smt. Suneeta Respondent :- State Of U.P. And Another Counsel for Petitioner :- Bhola Nath Yadav,Kamal Singh Counsel for Respondent :- C.S.C.
Hon'ble Jayant Banerji,J.
Supplementary affidavit filed today is taken on record.
Heard Sri Bhola Nath Yadav, learned counsel petitioner and the learned Standing Counsel for the respondents.
This writ petition has been filed inter alia with the following prayer:-
"1. To issue a writ, order or direction in the nature of mandamus directing the respondent No.2 to appoint the petitioner on the suitable post under the dying-in-harness Rules on the compassionate ground in place of her father Late Hira Lal who died in harness discharging his duties on the post of Beldar, within the period stipulated by this Hon'ble Court.
2.To issue a writ, order or direction in the nature of mandamus directing the respondent No.2 to consider and decide the representation dated 29.5.2018 moved by the petitioner for the appointment of the petitioner on the suitable post under the dying-in-harness Rules by reasoned and speaking order within the period stipulated by this Hon'ble Court".
It is contended by the learned counsel for the petitioner that the petitioner's father died on 10.1.2018 and she is the sole heir of her father. The contention is that though the petitioner is married, she continues to reside in the house of her late father along with her husband and children as well as her mother. Her family was totally dependant on her father.
Learned counsel for the petitioner has relied upon the judgement in the matter of Smt. Vimla Srivastava Vs. State of U.P. and another1 in which, while referring to a prior judgement rendered in the case of 1 2016 (1) ADJ 21(DB) Mudita V. State of U.P.2 as not laying down the correct position of law, the Court observed as follows:-
"25. During the course of submissions, our attention was also drawn to the judgement rendered by a learned Single Judge of this Court in Mudita V. State of U.P., 2015 (9) ADJ 16. 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 could not therefore be expected to continue to provide for the family of the deceased Government servant. The judgement proceeds on the premise that marriage severs all relationship 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.
26. 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.
27. We, accordingly, strike down the word 'unmarried' in Rule 2(c) (iii) of the Dying-in-Harness Rules.
28. 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."
Learned counsel for the petitioner has submitted a copy of the judgement dated 23.12.2015 passed in Special Appeal Defective No. 863 of 2015 (Neha Srivastava Vs. State of U.P. and another), whereby, the Division Bench of this Court while following the judgement of this Court in Smt. Vimla Srivastava (supra), proceeded to allow the Special Appeal and set aside the order passed by the learned Single Judge in the writ petition. The learned Single Judge had rejected the claim of Neha Srivastava for compassionate appointment on the ground that she being a married daughter is not entitled for compassionate appointment and she does not fall within the definition of family under the Rules of 1974. This appellate judgement in the matter of Neha Srivastava was challenged in Special Leave to Appeal (C) No. 22646 of 2016 before 2 2015 (9) ADJ 16 the Supreme Court which was dismissed by means of an order dated 23.7.2019.
Considering the fact that the provision excluding a married daughter in the definition of 'family' appearing in Rule 2(c) of the U.P. Recruitment of Dependant of Government Servant Dying-in-Harness Rules, 1974 was declared as unconstitutional, it is directed that the competent authority shall consider the application of the petitioner dated 29.5.2018 (Annexure No. 3 to the supplementary affidavit) within 10 days of filing of a copy of that application along with a certified copy of the order passed today. The competent authority may ask the petitioner to submit a proper application with necessary enclosures and other requirements. The competent authority shall then decide the same in accordance with law expeditiously and preferably within six months from the date of submission of the application.
With the aforesaid observations, this writ petition is disposed of.
Order Date :- 22.8.2019 sfa/ (Jayant Banerji, J)