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2016 DIGILAW 1828 (ALL)

Km. Ruby Mausoof v. State of U. P.

2016-05-11

P.K.S.BAGHEL

body2016
JUDGMENT Pradeep Kumar Singh Baghel, J. – The petitioner's father was a constable in Civil office and was posted in District Ghazipur, He died in harness on 28.8.1999. The petitioner made an application for her appointment on compassionate ground. When no decision was taken on the application of petitioner, she preferred Writ Petition No. 29661 of 2015 for a direction upon the respondents to appoint her on compassionate ground. The said writ petition was disposed of on 21.5.2015 by issuing a direction upon the third respondent therein to consider the cause of the petitioner. 2. In compliance thereof, the respondent no.3 has rejected the claim of the petitioner by the impugned order dated 4.10.2015 solely on the ground that the petitioner is a married daughter of late Sri Mausoof Alam therefore, she cannot be given such appointment. No other ground is mentioned in the impugned order. 3. It is contended on behalf of the petitioner that the view taken by the third respondent is contrary to the laid down by this Court in case of Smt. Vimla Srivastava v. State of U.P. and another, 2016(1) ADJ 21 (DB). The Division Bench has considered the constitutional validity of the word "unmarried" doming under definition of the family. The Court has declared the word "unmarried" Rule 2(C)(iii) of the Rules 1974 as ultra vires and unconstitutional. Consequently, the word "unmarried" has been struck down from the definition of the 'family'. 4. In view of the above, the Court has found that the married daughter is entitled for appointment of compassionate ground. 5. However, learned Single Juge in the case of Smt. Uma v. State of U.P. and others, Writ Petition No. 10906 of 2016 dismissed the writ petition on the ground that the division Bench in Smt. Vimla Srivastava (Supra) has failed to consider the Full Bench judgment of this Court in Km. Shehnaj Begum v. State of U.P. and others, (2013) Law Suit (All) 754. 6. Against the judgment of the learned Single Judge in Smt. Uma(Supra) a Special Appeal No. 268 of 2016 was filed. The Division Bench in the said special appeal considered the judgment of the Full Bench in Km. Shehnaj Begum(Supra) also and found that the issue decided in Smt. Vimla Srivastava(Supra) was not raised before the Court in Km. 6. Against the judgment of the learned Single Judge in Smt. Uma(Supra) a Special Appeal No. 268 of 2016 was filed. The Division Bench in the said special appeal considered the judgment of the Full Bench in Km. Shehnaj Begum(Supra) also and found that the issue decided in Smt. Vimla Srivastava(Supra) was not raised before the Court in Km. Shehnaj Begum case, the relevant part of the order reads as under: - "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". 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. 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. 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. 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. 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. In view of the above, the order passed by learned Single Judge is set aside and present special appeal is allowed." 7. In view of the above, now the issue stand clarified and there is no conflicting judgment. 8. Since no factual controversy is involved in the matter, calling a response from the respondents, would not serve any purpose. Therefore, with the consent of parties the matter is taken on Board for final disposal. 9. For the reason stated herein above, I find that the order of the third respondent is contrary to the law laid down by this Court. 10. Therefore, with the consent of parties the matter is taken on Board for final disposal. 9. For the reason stated herein above, I find that the order of the third respondent is contrary to the law laid down by this Court. 10. It is a trite law that a judgment laid down by the High Court is binding on all the Courts, Tribunals and authorities irrespective of the fact that they are party in the case or not. This power of the High Court is akin to the power of the Supreme Court under Article 141 Constitution of India. The reference may be to the judgment of the Supreme Court in M/s. East India Commercial Co. Ltd. Calcutta and another v. Collector of Customs, Calcutta, AIR 1962 SC 1893 . 11. In the case of Dr. Rohit Gupta v. Principal, S.N. Medical College, Agra and others, 1995 1 UPLBEC 365 the Division Bench of this Court has considered the issue whether the law laid down by this Court is binding on the authorities or the parties who were not party in the writ petition. This Court held that it is a settled legal position that the judgment of this Court are binding on all the authorities automatically and the law laid down by this Court must be faithfully complied with. The authorities cannot take stand that they comely the judgment of the Court only when they receive the instructions from State Government. 12. The Court had issued a warning that in future this Court will not tolerate such type of stand taken by the authorities. The relevant part of the judgment reads as under: - (5)"......... The judgments of this court are binding on all authorities automatically and it is not that they become finding only when approved by the State Govt. It is surprising that the Principal of a Medical College has taken a wholly illegal and untenable stand in annexure-7 to the writ petition. We were inclined to issue contempt notice but we refrained our-selves from doing so as we feel that he has issued the letter which is annexure-7 in ignorance of the legal position but we will grant not further indulgence to him in future. We were inclined to issue contempt notice but we refrained our-selves from doing so as we feel that he has issued the letter which is annexure-7 in ignorance of the legal position but we will grant not further indulgence to him in future. The Principal of S. N. Medical College, Agra and all other authorities in the State must know that orders of this court are binding on them automatically and must be faithfully and punctually complied with, and such authorities cannot take a stand that they will comply with the judgment of this court only when they receive some communication from the State Govt. In future this court will not tolerate this kind of attitude from any authority and all authorities are cautioned against taking up such attitude in respect of the orders or judgments of this Court." (Emphasis supplied) 13. Accordingly, I find that the impugned order dated 4.10.2015 passed by the third respondent needs to be set aside. 14. Having regard to the facts and circumstances of the case and the law laid down in the aforesaid decision, impugned order dated 4.10.2015 passed by third respondent is set aside. The matter is remitted to third respondent to consider the matter afresh in the light of law laid down by this Court in Smt. Vimla Srivastava (Supra). The said exercise shall be undertaken by the third respondent within two months from the date of communication of this order. The petitioner shall submit a certified copy of this order along with a copy of the order in Smt. Vimla Srivastava(Supra) before third respondent within 15 days from the date of receipt of a certified copy of this order. 15. The writ petition is allowed. No order as to costs. Petition allowed.