JUDGMENT Hon’ble V.K. Shukla, J.—Petitioner Smt. Ankita Srivastava wife of Late Prateek Kumar Srivastava presently posted as Junior clerk in the office of Up Sambhagiya Krishi Prasar Adhikari, Sadar, District Ballia has approached this Court to issue a writ in the nature of mandamus directing the respondents to permit the petitioner for re-marriage without effecting the services of the petitioner. 2. Brief background of the case is that father-in-law of the petitioner namely late Buddhi Sagar Lal Srivastava was working in the office of Up Sambhagiya, Krishi Prasar Adhikari, Sadar, District Ballia, and he died in harness leaving behind his wife namely Smt. Usha Devi, one son Prateek Kumar Srivastava (husband of the petitioner) and two unmarried daughters namely Km. Pratima Srivastva and Km. Kavita Srivastava. After death of father of the petitioner, husband of the petitioner Prateek Kumar Srivastava was offered appointment as Junior Clerk on compassionate basis vide order dated 14.9.2001. While Prateek Kumar Srivastava has been performing his duty, petitioner was married to him as per Hindu Vedic Rites on 18.5.20085. As the luck of the petitioner would have been, her husband died in harness on 24.5.2006, leaving behind, his widowed mother namely Smt. Usha Devi, wife Ankita Srivastava (Petitioner) and two unmarried sister Km. Pratima Srivastava and Km. Kavita Srivastava. Petitioner had claimed compassionate appointment and as orders were not being passed, she filed Civil Misc. Writ Petition No. 68064 of 2007 and this Court on 14.2.2007 directed the authority concerned to take decision on the same. Pursuant thereto petitioner has been offered appointment on compassionate basis vide appointment letter dated 11.5.2007 and has been performing her duty. It appears that at the point of time when appointment had been offered to her, petitioner has been asked to file her notarial affidavit to the effect that after death of her husband, neither she has married nor she has any intention to remarry in future. Petitioner continues to perform her duty and her submission is that sister-in-law of petitioner namely Pratima Srivastava has already been married in the year 2009 and other sister-in-law namely Kavita Srivastava has died on 20.10.2008. Petitioner continues to perform her duty and her submission is that sister-in-law of petitioner namely Pratima Srivastava has already been married in the year 2009 and other sister-in-law namely Kavita Srivastava has died on 20.10.2008. Petitioner has stated that only one member to be looked after by her is her mother-in-law and her mother-in-law is getting family pension and she owns ancestral property / land, and if any help either monetary or physical is required to her, the petitioner is always ready for that. Petitioner submits that at this stage of life when she is 31 years of age, father of petitioner has searched suitable bride groom to her and petitioner is ready to re-marry with him, but as petitioner has filed affidavit on 30.7.2007 that petitioner would not to remarry, the said affidavit would be used against her, and accordingly petitioner is before this Court. 3. Sri Brajesh Pratap Singh, learned counsel for the petitioner contended with vehemence that under Dying in Harness (Recruitment of Government Servant) Rules, 1974, as amended from time to time, as per Rule 5, one member of the family is entitled to be offered appointment. Rule-5 of Dying in Harness Rules, 1974 and here petitioner has been offered appointment, and as she ha been asked to file affidavit, that she would not marry, the said affidavit is being used to prevent the petitioner, from re-marrying, and accordingly, petitioner be accorded permission to marry, an as such writ petition deserves to be allowed. 4. Countering the said submission, learned Standing Counsel contended that once petitioner remarries, the object of compassionate appointment shall stand frustrated, and accordingly writ petition be dismissed. 5. 4. Countering the said submission, learned Standing Counsel contended that once petitioner remarries, the object of compassionate appointment shall stand frustrated, and accordingly writ petition be dismissed. 5. In order to appreciate respective arguments, the relevant provisions of Rule-5 of U.P. Employment of Dependent of Government Servant Dying in Harness Rules, 1974 is being extracted below : Rule 5: Recruitment of a member of the family of the deceased.—(1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government Or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the under the Central Government Or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules if such person— (i) fulfils the educational qualification prescribed for the post, (ii) is otherwise qualified for Government service, and, (iii) makes the application for employment with five years from the date of death of the Government servant: Provided that where the State Government is satisfied that the time-limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner. (2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death.” Perusal of aforementioned Rules would go to show that every appointment made under sub rule (3) of Rule 5 is subject to the condition that said person has to maintain other member of the family of the deceased, who were dependent on deceased immediately. Sub rule (4) of Rule 5 clearly proceeds to mention that where a person is unable to maintain the other member of the family of the deceased, as per sub rule (3) of Rule 5 then his service may be terminated under U.P. Government Servant (Discipline and Appeal) Rules, 1999, as amended from time to time. The only obligation cast upon the person at the time of offering employment under Dying in Harness Rules, 1974 is that a person shall maintain other member of the family who were dependent on deceased, and in case a person is unable to maintain the family member of the deceased then services of a person may be terminated as per U.P. Government Servant (Discipline & Appeal) Rules, 1999. Affidavit as has been so taken from the petitioner that she would not remarry is not at all subscribed by rules and as petitioner has submitted her affidavit, petitioner is before this Court with request that she should be accorded permission to remarry. 6. Remarriage is a personal choice of the petitioner and same can not at all be curtailed in any manner whatsoever, under the provisions of Dying in Harness Rule, 1974 as on compassionate appointment being offered she will have to comply with the obligation that which has been cast upon her i.e. to maintain the family members of deceased and in the event of failure to maintain, she can be subjected to the disciplinary proceeding and nothing beyond the same. Authority concern could not have insisted and asked the petitioner to file undertaking that she would not remarry in future and taking of such an undertaking would be clearly violative of Article 21 of the Constitution of India, inasmuch as right to marry a person of owns choice has been curtailed. 7. Apex Court, in the case of Kapila Hingorani v. State of Bihar, 2003(6) SCC 1 , has proceeded to mention that term life used in Article 21 has a wide and for reaching concept. It means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and localities by which life is enjoyed. Right to marry person of ones choice, has been accepted as integral part of Article 21 of Constitution a per the judgment of Apex Court, in the case of Lala Singh Vs. It means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and localities by which life is enjoyed. Right to marry person of ones choice, has been accepted as integral part of Article 21 of Constitution a per the judgment of Apex Court, in the case of Lala Singh Vs. State of U.P. One cannot be denied of companionship, as companionship is one of the faculties by which life can be enjoyed, and merely because compassionate appointment ha been provided, a person cannot be forced to sign affidavit sacrificing his/her fundamental right, that in future remarriage will not at all be contracted . The employer has in effect misused his dominant status of employer by asking for such an affidavit. This Court also in the case of Smt. Subhwanti Devi v. Shiksha Adhikshak, 1988 UPLBEC 80 (DB), has taken the view, that remarriage may be a social or a biological human necessity, but same can never be made for termination of service, and remarriage has not at all been defined as one of the misconduct, disqualifications or disabilities. 8. In view of this affidavit, which has been so given by the petitioner that she would not remarry is neither here nor there. Petitioner is free to solemnize the remarriage, but she will have to kept in mind sub rule (3) and (4) of Rule 5 of 1974 Rules. The petitioner to show her bona fidies has contended before this Court that 1/3rd of her salary would be paid to her mother-in-law each and every month after she contracted marriage. In view of this undertaking being furnished, present writ petition stands allowed by making it open to the petitioner that she is free to contract her remarriage and the affidavit given by her before the authority concerned in no way would effect the services of the petitioner and in case there is any breach of terms and condition of appointment, then action be taken, but strictly in accordance with law. Consequently, present writ petition is allowed. ——————