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2016 DIGILAW 189 (UTT)

Ajay Singh Maurya v. State of Uttarakhand

2016-05-02

K.M.JOSEPH, U.C.DHYANI

body2016
JUDGMENT : K.M. Joseph, J. 1. Appellant is the writ petitioner. Appellant was born in the year 1986. His mother died in the year 1989. Thereafter, his father remarried in 1994. The stepmother of the appellant, namely, the lady whom his father married upon the death of the appellant’s mother, was already employed in the State of U.P. The father of the appellant, who was employed with the State Government, passed away in the year 2009; at that time, the appellant was nearly 23 years of age. Appellant sought the benefit of appointment under Dying in Harness Scheme. The case of the appellant is governed by Rule 5. The same reads as follows: “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 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 qualifications prescribed for the post. (ii) Is otherwise qualified for Government service, and (iii) Makes the application for employment within five years from the date of the 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.” 2. The request of the appellant having not elicited the desired response, he filed the present writ petition, from which, this appeal arises. The learned Single Judge dismissed the writ petition. Hence, the appeal. 3. We heard Mr. The request of the appellant having not elicited the desired response, he filed the present writ petition, from which, this appeal arises. The learned Single Judge dismissed the writ petition. Hence, the appeal. 3. We heard Mr. P.S. Bohara, learned counsel for the appellant and Mr. Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand. 4. Learned counsel for the appellant would submit that actually the stepmother has two children from her first marriage. He would further submit that the stepmother and the appellant are living separately and his stepmother has never taken care of the appellant and upon the death of the father of the appellant, he was left destitute, therefore, the reasoning of the learned Single Judge that in terms of the Rule, which we have alluded to hereinbefore insofar as the stepmother of the appellant is already employed with the State of U.P., appellant is not entitled, cannot be supported. He would submit that under The Hindu Minority and Guardianship Act, 1956, Section 6 expressly excludes a stepmother from the expression mother. Section 6 of the said Act reads as follows: “6. Natural guardians of a Hindu minor.- The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are:- (a) in the case of a boy or an unmarried girl-the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father; (c) in the case of a married girl-the husband; Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section:- (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation - In this section, the expression “father” and “mother” do not include a step-father and a step-mother.” 5. Explanation - In this section, the expression “father” and “mother” do not include a step-father and a step-mother.” 5. He further invites our attention to the Judgment of the Hon’ble Apex Court in the case of Kirtikant D. Vadodaria Versus State of Gujarat and another reported in (1996) 4 SCC 479 and he attempted to contend that the stepmother cannot be treated as equivalent to the mother. 6. Mr. Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand would support the judgment by pointing out that the stepmother being the spouse of the father is already employed in the State of U.P., which is an undisputed fact. 7. We are unable to accept the contentions advanced on behalf of the appellant. Dying in harness is a matter to be decided with reference to the Rules or Orders or Schemes applicable in a particular case. In this case, the matter is squarely covered by the expression of the words, which we have adverted. 8. The father of the appellant admittedly had married again after the death of the appellant’s mother. The said lady, as far as the appellant is concerned may be described as the appellant’s stepmother. Notwithstanding the same, as far as the Rule is concerned, there can be no manner of doubt that the stepmother would fall in the category of ‘spouse’. In other words, qua the appellant, the lady may be his stepmother, but, qua his father, who had married her upon the death of the appellant’s mother, the lady can only be described as his ‘spouse’. If that be so, in view of the undisputed facts that the lady, who is described as the appellant’s stepmother, who is also undoubtedly the spouse of his father, being employed, appellant would not be entitled to have his claim considered successfully under Rule 5 of the said Rules, seeking employment. 9. We would think that the assistance sought to be derived from the provisions of Section 6 of The Hindu Minority and Guardianship Act, 1956 is without any basis. 9. We would think that the assistance sought to be derived from the provisions of Section 6 of The Hindu Minority and Guardianship Act, 1956 is without any basis. For the purposes of the said Act and having regard to the object of the Act, it excludes a stepmother and a stepfather from the definition of mother and father respectively, but that would have no relevance for the purpose of deciding the fate of the appellant’s application for being considered for employment under the Dying in Harness Scheme, the purport of which we must exclusively gather from the words used in Rule 5. The words of limitation, which inevitably flow and would fatally afflict the appellant’s claim, preclude the case of a person being considered, when the spouse is already employed. Notwithstanding the fact that she is stepmother, as far as the appellant is concerned, she nonetheless remains a spouse within the meaning of Rule 5. 10. Equally unattractive is the reliance sought to be placed on the judgment of the Apex Court in (1996) 4 SCC 479 . There, the Hon’ble Apex Court was dealing with the application made under Section 125 of the Code of Criminal Procedure. The application was moved by the second respondent. The appellant therein was the stepson of the second respondent. Therefore, the Court took the view, inter-alia, as follows: “The expressions ‘mother’ and ‘stepmother’ have not been defined either in the Code or in the General Clauses Act, 1897. These expressions have also not been defined by the Hindu law or the Hindu Adoptions and Maintenance Act, 1956 or by any other law. All that the explanation attached to Section 20 of the Hindu Adoptions and Maintenance Act, 1956 provides is that the expression ‘parent’ includes a childless stepmother. On a conspectus view of dictionary meaning of the two expressions-‘mother’ and ‘stepmother’ in various dictionaries, it clearly emerges that there is inherent distinction between the status of a ‘mother’ and ‘stepmother’ and they are to distinct and separate entities and both could not be assigned the same meaning. The expression ‘mother’ clearly means only the natural mother who has given birth to the child and not the one who is the wife of one’s father by another marriage. The expression ‘mother’ clearly means only the natural mother who has given birth to the child and not the one who is the wife of one’s father by another marriage. A stepmother is one who is taken as a wife by the father of the child other than the one from whom he is born or who has given birth to him. This clearly goes to show that the woman who gives birth to a child and another woman who is taken by the father as his ‘other’ wife are two distinct and separate entities in the eye of law and who in common parlance are known and recognized a real ‘mother’ and ‘stepmother’. That being so, another woman who is taken as a wife by the father of the child cannot be given the status of a mother to the child born from another woman as there is no blood relation between the two.” 11. We are certainly of the view that the context, in which the question arose for consideration in the said case, is completely different from that which falls for our consideration. We have already supplied the reasoning, namely, that this is a case, where under the Rules, the stepmother of the appellant, being the spouse of his father, the appellant cannot claim the benefit of Dying in Harness. 12. No doubt, learned counsel for the appellant did contend that the Court may look at the purpose of the Rule and he would submit that it is intended to apply in a situation, where there would be no conflict of interest in a manner of speaking between the spouse and the persons claiming the benefit of the Rules, and that in this case since the appellant is a product of the first marriage and the appellant has also a case that the stepmother and the appellant were living separately and he was not brought up by the stepmother, it would make a difference on the impact of the Rule. We are not impressed by the said contention. The words in the Rule are clear and we have already referred to our understanding on the same in the earlier part of the judgment. 13. We do not see how the contention taken by the appellant hereinabove can make a difference in the interpretation of the Rules. We are not impressed by the said contention. The words in the Rule are clear and we have already referred to our understanding on the same in the earlier part of the judgment. 13. We do not see how the contention taken by the appellant hereinabove can make a difference in the interpretation of the Rules. In such circumstances, finding the appeal without merit, we dismiss the appeal without any order as to costs.