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2016 DIGILAW 1360 (ALL)

Uma v. State of U. P.

2016-04-12

UMESH CHANDRA SRIVASTAVA, V.K.SHUKLA

body2016
JUDGMENT Smt. Uma, appellant is before this Court with a request to quash the order dated 09.03.2016 passed by learned Single Judge in Civil Misc. Writ Petition No. 10916 of 2016 (Smt. Uma Vs. State of U.P. and others) refusing to accord any relief to petitioner on the premises that petitioner is a married daughter and she does not fall within the definition of family as defined in Rule 2(c) of the U.P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules 1974, as such she falls outside the zone of consideration. 2. Brief background of the case is that late Khet Singh had been performing and discharging duties as Class IV employee in Construction Division in the Public Works Department, Lalitpur and he died in harness on 13.11.2014. Appellant-petitioner has proceeded to make a mention that her mother has pre-deceased her father and after the death of her father, appellant-petitioner and minor sister Km. Anju have been there. Appellant-petitioner submits that she has made a request for offering appointment to her and as no heed was being paid to the same, she preferred Civil Misc. Writ Petition No. 10916 of 2016 (Smt. Uma Vs. State of U.P. and others) and the said writ petition in question has been dismissed by learned Single Judge. 3. On the matter being taken up today, Sri Karan Singh Yadav, learned counsel for the appellants, submitted that learned Single Judge in the present case has followed Full Bench judgment passed in the case of Km. Shehnaj Begum Vs. State of U.P. and others (2013) Law Suit (All) 754 on the premises that definition of the word "Family" as defined in Rule 2 (c) of the U.P. Recruitment of Dependents of Government Servants Dying-In-Harness Rules 1974 is exhaustive and once in the definition of "Family" married daughter has not at all included then no directive can be given for consideration of the claim of appellant-petitioner while submission of appellants is that exclusion of a married daughter for grant of compassionate appointment is violative of Article 14 and 15 of the Constitution and same is discriminatory in nature and this Court on subsequent occasion in the case of Vimla Srivastava and others Vs. State of U.P. and others reported in LAW (ALL)-2015-12-60 has clearly taken the view that the exclusion of married daughters from the ambit of the expression "family" in Rule 2 (c) of the U.P. Recruitment of Dependents of Government Servants Dying-In-Harness Rules 1974 is illegal and unconstitutional, being violative of Articles 14 and 15 of the Constitution, in view of this, as on date, claim of appellant-petitioner has to be considered and the Special appeal deserves to be allowed. 4. Learned Standing counsel on the other hand contended that rightful view has been taken by learned Single Judge at the point of time when he has proceeded to direct that married daughter has no right for being considered for appointment on compassionate ground and once rightful approach has been there, then no interference should be made by this Court. 5. After respective arguments have been advanced, factual situation that has so emerged is that in the present case, appellant-petitioner is a married daughter and she alongwith her minor sister claim to be dependant on her father's income, in view of this, compassionate appointment be offered to her. Appellant-petitioner submits that in such a situation her right to be offered compassionate appointment should not be defeated in the way and manner as has been sought to be done in the present case. 6. It is true that under Rule 2 (c) of U.P. Recruitment of Dependents of Government Servants Dying-In-Harness Rules 1974, unmarried daughters, unmarried adopted daughters, widowed daughters and widowed daughters-in-law have been shown within the definition of "Family". This is accepted position that married daughter has not been defined in the definition of "Family". 7. Full Bench of this Court in the case of Shehnaj Begum (Supra) has strictly construed the definition of "Family" provided in Rule 2(c) of 1974 Rules and has proceeded to answer the reference that has been so made by the Division Bench of this Court. 8. Only issue before Full Bench was that the word "include" in the definition clause has been used by the Rules framer in the sense of "means" or same is exhaustive. In the said context answer that has been given by Full Bench is that definition of the family in Rule 2(c) of U.P. Recruitment of Dependents of Government Servants Dying-In-Harness Rules 1974 is exhaustive. In the said context answer that has been given by Full Bench is that definition of the family in Rule 2(c) of U.P. Recruitment of Dependents of Government Servants Dying-In-Harness Rules 1974 is exhaustive. It is, however, always open to the appropriate government to amend the definition of family so as to include any other relations of the deceased government servant which it thinks fit to be included for fulfilment of purpose and object of the Rules. 9. Once validity of the provision as contained under Rule 2(c) of Rules 1974 has been tested on the parameter that the said provision is discriminatory on the basis of sex and is violative of Article 14 and 15 of Constitution, and subsequent to the same, a Division Bench of this Court in the case of Vimla Srivastava (Supra) has tested the said provision of Rule 2(c) of Rules 1974 based on gender discrimination and has held the exclusion of married daughter from the definition of family being violative of Article 14 and 15 of the Constitution of India. Specific mention has been made that in case married daughter has to be excluded then the said provision in question on its face value is based on gender discrimination. In view of this, once such is the factual situation and in para-27 of the judgment dated 04.12.2015, it has been held that 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 Article 14 and 15 of the Constitution and the Division Bench has struck down the word "unmarried" in Rule 2(c)(iii) of the Dying-in-Harness Rules. 10. 10. Consequently, judgment dated 04.12.2015 passed in the case of Vimla Srivastava (Supra), on subsequent occasion by coordinate bench of this Court has to be followed by us based on judicial discipline, and learned Standing counsel has informed us that said judgement is holding the field till today as validity of the same has not been challenged before Apex Court and there is no interim order operating, we proceed to pass order directing therein that in case appellant-petitioner applies for consideration of her claim for grant of compassionate appointment, then same be examined and her claim should not be non-suited on the ground that she is married daughter of deceased, however at the point of time of consideration of her claim, dependency should also be looked into as to whether she was really dependant or it is a pretence to get compassionate appointment, apart from other relevant considerations for grant of compassionate appointment including the fact of status of her husband preferably within three months from the date of presentation of certified copy of the order passed by this Court. 11. In view of the above, the order passed by learned Single Judge is set aside and present special appeal is allowed.