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2014 DIGILAW 3793 (ALL)

SONIYA v. STATE OF U. P.

2014-12-19

SUNITA AGARWAL

body2014
JUDGMENT Hon’ble Mrs. Sunita Agarwal, J.—Heard Sri Kamlesh Shukla, learned counsel for the petitioner and learned Standing Counsel. 2. Short controversy raised in the present writ petition is as to whether the petitioner being a married daughter of the deceased employee has a right for consideration for appointment on compassionate ground. The petitioner is only daughter of her parents and her case is that she is unemployed and was fully dependent upon her father at the time of his death. Her mother i.e. wife of the deceased employee moved an application on 22.2.2012 before the Principal/Chief Superintendent, S.N. Medical College and Hospital, Agra for providing employment to her daughter i.e. petitioner. Reminders were sent by the petitioner and her mother but no decision has been taken and hence this writ petition. 3. In the supplementary-affidavit filed on 17.10.2014, the petitioner sought to submit that she alongwith her husband Bhupendra Sharma is residing at her parental residence and is looking after wife of the deceased(mother of the petitioner) and the entire family. 4. It is also indicated therein that the petitioner’s husband was earlier working in a shoe factory at Agra but on account of fire in the factory in the year 2002, he lost his job and since thereafter her entire family including her husband were fully dependent upon the deceased employee. 5. Submission of learned counsel for the petitioner is that the petitioner being married daughter though is not included in the definition of “Family” under Dying-in-Harness Rules, is entitled for consideration for compassionate appointment as she was fully dependent upon her father. Merely because the petitioner is a married daughter, she cannot be refused appointment as it would be violative of Article 15 and 16 of the Constitution of India. 6. For awarding compassionate appointment, the ‘dependency’ should be the yardstick and not the marriage of family members of the deceased. Supreme Court has recognized right to employment in case of a married woman as early as in the year 1979 in the case of C.B. Muthamma v. Union of India and others, AIR 1979 SC 1868 . 6. For awarding compassionate appointment, the ‘dependency’ should be the yardstick and not the marriage of family members of the deceased. Supreme Court has recognized right to employment in case of a married woman as early as in the year 1979 in the case of C.B. Muthamma v. Union of India and others, AIR 1979 SC 1868 . In support of his submissions, learned counsel for the petitioner has relied upon the judgment of Bombay High Court in Ranjana Murlidhar Anerao v. The State of Maharashtra, LAWS(BOM)-2014-8-68 and Karnataka High Court in R. Jayamma v. Karnataka Electricity Board and another, ILR 1992 KARNATAKA 3416 and Manjula v. State of Karnataka, by its Secretary, Department of Co-operation and another, 2005(104) FLR 271. 7. Learned Standing Counsel, on the other hand, submits that the petitioner has no right for consideration for appointment on compassionate ground as she is not eligible for such appointment being not a dependent family member of the deceased employee. A married daughter is not included in the expression “Family” of the deceased employee and hence there is no merit in the writ petition and the same deserves to be dismissed. 8. The dependent petitioner is the sole heir of the deceased employee. There are two family members of the deceased employee namely, the petitioner and her mother. Indisputably, the petitioner was married prior to death of her father in the year 2011. It is also apparent from the facts indicated in the writ petition that she was living with her husband till the year 2000 who was working in a shoe factory. The contention is that after the shoe factory was gutted in fire and closed, the entire family of the petitioner namely her husband and two children started living with the deceased employee and were financially dependent upon him. Thus, an effort has been made to carve out an exception to Rule 5 of the 1974 Rules to submit that the petitioner was a dependent daughter of the deceased employee and as she was financially dependent upon her father at the time of his death, she has a claim for consideration for compassionate appointment. 9. It is well-settled that the compassionate appointment is granted to a dependent family member of the deceased employee. 9. It is well-settled that the compassionate appointment is granted to a dependent family member of the deceased employee. Even a son of the deceased employee is not eligible for compassionate appointment, if he is not dependent upon the employee at the time of his death. The offer of compassionate appointment is to be given to one of the dependent family members of the deceased employee so as to help the family mitigate the financial crisis faced by it. It is not a source of employment and is in the nature of an exception to the General Rule that everyone is to come in a public employment solely on merits. 10. Thus, the “dependency” would be the first eligibility criteria for consideration of claim of a family member of the deceased employee for compassionate appointment. In case, this test is passed, only then the application for compassionate appointment is to be considered on other aspects. 11. So far as the present case is concerned, it appears that the petitioner has not disclosed the correct facts. Though it is stated in the supplementary-affidavit that the petitioner and her family was living and dependent upon the deceased, however, there is no document to support the said submission. Moreover, no such statement has been made by the mother of the petitioner in the year 2012 when she has moved an application to consider the claim of the petitioner. A perusal of the application dated 22.2.2012 moved by the petitioner’s mother indicates that only submission therein was that the petitioner was unemployed. The submission of the petitioner that her husband is unemployed and was fully dependent upon her father from the year 2002 till his death is not worthy of acceptance for absence of material on record. Vague assertions in the affidavit are not sufficient to prove the dependency of the petitioner on the deceased employee. 12. So far as another aspect of the matter i.e. exclusion of a married daughter in the expression “Family” is concerned, it appears that exclusion of a married daughter from the expression “Family” is based on logic that soon after the marriage, daughters leave the house of their parents and are financially dependent upon their husbands. Though it cannot be said that they cannot be treated as part of the family yet it is true that they are not financially dependent upon their parents, after marriage. 13. Though it cannot be said that they cannot be treated as part of the family yet it is true that they are not financially dependent upon their parents, after marriage. 13. The cases relied upon by the learned counsel for the petitioner to submit that the petitioner was dependent upon her father at the time of his death and hence the claim for consideration of compassionate appointment, are distinguishable in the facts and circumstances of the present case. 14. In Ranjana Murlidhar Anerao (supra), the question was as to whether the exclusion of the married daughter from the expression “Family” for being entitled to be considered for grant of retail kerosene licence was legal and valid. It was held that exclusion of married daughter from the expression “Family” is not only violative of Article 15 of the Constitution of India but the same also infringes the right guaranteed by Article 19(1)(g) of the Constitution of India. So far as grant of licence for distribution of Kerosene oil is concerned, the legal heirs of the deceased retail licence holder are entitled to seek transfer of licence in their names after the death of the licensee. It was found that marriage of a daughter who is otherwise a legal representative of a licence holder cannot be held to her disadvantage in the matter of seeking transfer of licence in her name on the death of the licence holder. 15. Merely because a daughter is looking after her parents is not a criteria for grant of compassionate appointment. The object with which a married daughter has been excluded from the expression “Family” is based on an intelligible differentia and the dependency should be a yardstick for consideration of compassionate appointment and is commensurate with the sole object of grant of compassionate appointment. It is in these circumstances, the married daughter has not been included in the expression “Family” under Dying-in-Harness Rules, 1974. 16. However for transfer of retail licence, the criteria is “inheritance” whereas in the matter of grant of compassionate appointment, it is “dependency” and hence ratio of judgment of Bombay High Court (supra) applies in the facts and circumstances of that particular case and is not applicable in the facts of the present case. 17. 16. However for transfer of retail licence, the criteria is “inheritance” whereas in the matter of grant of compassionate appointment, it is “dependency” and hence ratio of judgment of Bombay High Court (supra) applies in the facts and circumstances of that particular case and is not applicable in the facts of the present case. 17. So far as the judgments in R. Jayamma (supra) and Manjula (supra) are concerned, it is found that in both the cases, the Karnataka High Court found that the married daughter was financially dependent upon her parents for the reason that in R. Jayamma (supra) the husband of the petitioner (who was a married daughter) has become mentally deranged. In Manjula (supra) the petitioner has become widow after filing of the petition. In paragraph 10 of the judgment in Manjula (supra) it was observed that no married daughter can be denied of an entry into the service on compassionate employment just because she is married. There may be cases whether the married woman may be living with her parents notwithstanding her marriage for various reasons and there may be cases where married women would be dependent on their parents on account of their individual circumstances. Thus, the Court in those cases, may read down the rule of dependency in the facts and circumstances of the case and issue a direction to provide employment to dependent married daughters subject to satisfaction of their dependency in the given circumstances. 18. Thus, from the careful reading of these reports, it is found that the direction was given therein in the peculiar facts and circumstances of those cases and the Court was of the opinion that the dependent daughters cannot be excluded merely because of their marital status. 19. As has been discussed above, one dependent family member of the deceased employee is entitled for compassionate appointment. The petitioner has failed to establish that she was dependent upon the deceased employee, as admittedly her husband is alive and he is a hail and hearty person, it cannot be accepted that the petitioner was fully dependent upon the deceased employee at the time of his death. 20. In view of above discussion, the petitioner is not entitled for any relief in the present writ petition. The writ petition is accordingly dismissed. ——————