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2016 DIGILAW 3766 (ALL)

MUDITA v. STATE OF U. P.

2016-11-22

ARUN TANDON, SUNITA AGARWAL

body2016
JUDGMENT By the Court.—Heard learned counsel for the parties and perused the record. 2. This special appeal is directed against the judgment and order dated 10.9.2015 passed in Writ petition No. 49766 of 2015 (Mudita v. State of U.P. and another). 3. The appellant seeks appointment on compassionate ground as her mother namely Late Smt. Krishna Pandey who was a Principal of a Primary School died in harness. 4. It is contended by the appellant that she is married and was living with her mother and was financially dependent upon her mother as her husband is unemployed. Apart from the support of her mother, there was no other source of livelihood of the appellant. The request of the appellant was rejected vide order dated 27.7.2015. This order was challenged in the writ petition which was dismissed by holding that the married daughter cannot claim compassionate appointment. Her claim cannot be equated with the right of a woman in ancestral property hence this appeal. 5. The contention of learned counsel for the appellant is that the Writ Court has adopted a technical approach and failed to consider that the appellant was fully dependent upon her deceased mother. She was left with no means of livelihood after the death of her mother. 6. Considering these contentions and the documents on record, it is noteworthy that no proof of dependency of the appellant upon the deceased-employee is on record. Certain letters of Sabhasad and President of Nagar Palika Parishad have been filed by the appellant to put forth her claim that she was living with her mother at the time of her death. There is no evidence that the appellant was living with her mother and was dependent upon her. 7. The appointment on compassionate ground are in the nature of exceptions and cannot be treated as a source of employment. A daughter, son or any member of the “family” of deceased-employee as defined under the U.P. Recruitment of Dependent of Government Servant Dying-in-harness Rules, 1974 (hereinafter referred to as the Rules, 1974) is entitled for consideration for compassionate appointment only if it is established that such applicant was wholly dependent upon the deceased-employee and had no source of income. The appellant herein is a married woman. Her date of marriage is not on record. The appellant herein is a married woman. Her date of marriage is not on record. It is also not on record that since when the appellant was residing with her mother after her marriage and how she was dependent upon her mother. The fact of unemployment of the husband of the appellant though stated in one of the paragraphs of the writ petition but is not supported by any cogent evidence. There is no affidavit of the appellant’s husband to the effect that he is unemployed. 8. Moreover, under the Scheme of Dying-in-harness Rules, the word “family” has been defined in Section 2(c) of the Rules, 1974, which does not include married daughter: “2(c) “family” shall include the following relations of the deceased Government servant: (i) wife of husband; (ii) sons/adopted sons; (iii) unmarried daughters, unmarried adopted daughters, widowed daughters and widowed daughter-in-law; (iv) unmarried brothers, unmarried sisters and widowed mother dependent on the deceased Government servant, if the deceased Government servant was unmarried; (v) aforementioned relations of such missing Government servant who has been declared as “dead” by the competent Court: .......................................”. 9. A Full Bench of this Court in Special Appeal No. 1343 of 2011, Km. Shehnaj Begum v. State of U.P. and others, 2013(5) ADJ 577 (FB) (of which one of us, Sunita Agarwal, J. was a member) has observed that the member of the family of a deceased Government servant can be considered for granting compassionate appointment under the Rules who fulfills other conditions enumerated therein, such members of the family should also be a dependent on the deceased servant. The Full Bench considering the object of the Rules, 1974 has further observed that;- “The purpose of framing 1974 Rules is to relieve the family of a deceased Government servant from immediate financial distress but for this objective, the same would not have withstood the test of Articles 14 and 16 of the Constitution of India guaranting equal opportunities in the matter of public employment. Claim of compassionate appointment is not a right of a person and thus cannot be claimed as a matter of right. It is an exception to general rule of equality and cannot be treated as an independent and parallel source of employment. Claim of compassionate appointment is not a right of a person and thus cannot be claimed as a matter of right. It is an exception to general rule of equality and cannot be treated as an independent and parallel source of employment. It is in effect concession in favour of dependent of deceased employee by statutory rules framed with sole purpose and object to redeem the family of the deceased Government servant from penurious cause on account of sudden death. The benefit extended by the rules is limited to the family of the deceased Government employee only. In the case laws relied upon by Mr. Nigam the benefit was being extended to a particular class, as a whole. However under 1974 Rules the beneficial treatment is extended only to dependent family member of a deceased Government employee, by giving compassionate appointment on a public post, to the exclusion of others, who but for the said Rules, would also have been entitled for consideration, in case there was a open general competition.” 10. The question that was referred to the Full Bench was “whether the definition of family in Rule 2 (C) of the Rules, 1974 is inclusive or exhaustive.” The Full Bench has answered the question as follows;- “In view of the above discussions, the irresistible conclusion is that word ‘include’ used in the definition clause has been used by the Rules Framers in the sense of ‘means’ and the definition, as it stands, is exhaustive. It is, however, always open to the appropriate Government to amend the definition of the family so as to include any other relations of the deceased Government servant which it thinks fit to be included for fulfilment of the purpose and object of the Rules. Thus, our answer to the reference is that definition of the family in Rule 2 (c) of U.P. Recruitment of Dependants of Government Servant Dying-in-Harness Rules, 1974 is exhaustive.” 11. It is thus held that the word “include” used in the Definition of family in Clause 2 (c) of the Rules, 1974 has been used by the Rules framers in the sense of “means” and the definition as it stands is exhaustive. The expression “family” would, accordingly, include only such members of the family as specifically mentioned therein. 12. It is thus held that the word “include” used in the Definition of family in Clause 2 (c) of the Rules, 1974 has been used by the Rules framers in the sense of “means” and the definition as it stands is exhaustive. The expression “family” would, accordingly, include only such members of the family as specifically mentioned therein. 12. Considering the law laid down by the Full Bench, it is held that the married daughter is not included in the definition of family under Rules, 1974 and, therefore, cannot be considered for compassionate appointment. Moreover, the married daughter cannot be said to be dependent upon the deceased Government servant in absence of evidence to the contrary. The reason why a married daughter is not included in the definition of family appears to be that after marriage daughters normally move out of the house of their parents and no more remain dependent financially upon their parents. The responsibility of maintaining wife rests upon her husband. The object and purpose of Rules, 1974 as discussed above is to relieve the dependent family members of the deceased-employee from immediate financial hardship. The object is not to provide employment to the family members of the deceased-employee as already discussed above, it is an exception to the general rule of equality in public employment and cannot be treated as an independent and parallel source of employment. 13. Considering this object and purpose of the Rules, it can be held that the rule of succession has no application. The main ingredient is dependency of the applicant upon the deceased-employee which is not proved in the instant case. 14. Learned counsel for the petitioner has relied upon the judgment of the Division Bench of this Court in Writ Petition No. 60881 of 2015, Smt. Vimla Srivastava v. State of U.P. and another, 2016(1) ADJ 21 (DB), wherein it has been held that exclusion of married daughter from the ambit of expression “family” as defined 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 has struck down the word “unmarried” in Rule 2(c)(iii) of the Dying-in-harness Rules. 15. It was also held that the learned Single Judge in the case of Mudita (the judgement hereinunder challenge) does not lay down the correct position in law. 15. It was also held that the learned Single Judge in the case of Mudita (the judgement hereinunder challenge) does not lay down the correct position in law. It appears that the Full Bench judgement in the case of Shehnaj (supra) was not placed before the Division Bench and, therefore, it has not been taken note of. 16. The aforementioned Division Bench judgement was followed in Special Appeal Defective No. 863 of 2015 (Neha Srivastava v. State of U.P. and another) decided on 23.12.2015. A direction was given to the respondent-Authority to consider the claim of the applicant who is married daughter on the ground that her right could not be excluded from consideration only on the ground of her marital status. The judgment and order dated 23.12.2015 passed in Special Appeal Defective No. 863 of 2015 (supra) was challenged in Special Leave to Appeal CC No. 13846 of 2016 (State of Uttar Pradesh and another v. Neha Srivastava), wherein the Apex Court has granted an interim order staying effect and operation of the said judgment. 17. For all the above noted reasons, in the facts and circumstances of the case, we do not find any good ground to interfere in the judgment and order dated 10.9.2015 passed by the learned Single Judge in Writ Petition No. 49766 of 2015 (Mudita v. State of U.P. and another). 18. The Special Appeal is devoid of merits and hence dismissed.