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Allahabad High Court · body

2016 DIGILAW 753 (ALL)

MONIKA v. STATE OF U. P.

2016-03-02

D.Y.CHANDRACHUD, YASHWANT VARMA

body2016
JUDGMENT By the Court.—The special appeal has arisen from a judgment dated 19 January 2016. 2. The appellant is the daughter of the late Vimla Sharma, who was working as ANM in the Primary Health Centre at Udi in Etawah. She died while in service on 16 February 2011. The appellant applied for compassionate appointment. The brother of the appellant had pre-deceased his mother on 3 October 2008. His widow also applied for compassionate appointment on 15 April 2013. The Chief Medical Officer addressed communications both to the appellant and the widow of the appellant’s deceased brother. Eventually, by an order dated 4 December 2015, the claim of the appellant was rejected by the Superintendent, Primary Health Centre on the ground that there were two claims for compassionate appointment - one by the appellant and the other by the widow of the appellant’s deceased brother. That is the sole ground on which the claim of the appellant for compassionate appointment was rejected. The appellant filed a writ petition seeking compassionate appointment and for challenging the order of the Superintendent of the Primary Health Centre. The learned Single Judge dismissed the writ petition with the following observations: “It is not in dispute that the father of the petitioner, Ram Shankar is alive and therefore the claim for compassionate appointment cannot be made only on the ground that the petitioner is the dependant of her deceased mother Vimla Sharma. If the father of the petitioner is still alive the petitioner shall be deemed to be the dependant of her father. It is the father who has to provide for his daughter. There is nothing on record to show that the father is physically incapacitated to earn and provide for the family. It is not enough to say that he is not earning anything. Every man who is an adult and physically fit and healthy is expected to work and provide for his family.So also in the present case. May be that the impugned order rejects the claim of the petitioner on the ground that there are two claimants, therefore the order may per se be wrong but the petitioner has no right to claim appointment on compassionate ground as long her father is alive and she shall be deemed to be the dependant of her father.” 3. May be that the impugned order rejects the claim of the petitioner on the ground that there are two claimants, therefore the order may per se be wrong but the petitioner has no right to claim appointment on compassionate ground as long her father is alive and she shall be deemed to be the dependant of her father.” 3. At the outset, we must make it clear that we disapprove of the basic approach as is revealed in the impugned observations of the learned Single Judge. The learned Single Judge has proceeded on the basis that since the father of the appellant is alive, the appellant shall be deemed to be the dependant of her father and that it is the father who has to provide for his daughter. 4. We disapprove of these observations. Whether or not the appellant was or was not dependant on the deceased mother is a question of fact to be determined by the competent authority. However, after the death of the mother, the claim of the appellant cannot be dismissed on the ground of a hypothesis that so long as the father is alive, the appellant must have been looked after by her father and it is the duty of the father to maintain and provide for the appellant. In our view, every woman is entitled to lead a dignified existence as, indeed, every person is entitled to do so under the guarantee of Article 21 of the Constitution. The identity of a woman finds recognition in Articles 14 and 15 of the Constitution. The mandate of Article 15 extends to the protection of the identity of gender. In our view, it would be both inappropriate and contrary to the constitutional scheme to assert that the claim of a daughter for compassionate appointment would have to be negatived merely on the hypothesis that the father is alive and that it is the father to whom she must look for succour and relief. As a matter of fact, the record of the case would indicate that the reasons which weighed with the learned Single Judge was not the ground on which the authority had rejected the claim of the appellant. The learned Single Judge held that the order of the competent authority was “per se” wrong. As a matter of fact, the record of the case would indicate that the reasons which weighed with the learned Single Judge was not the ground on which the authority had rejected the claim of the appellant. The learned Single Judge held that the order of the competent authority was “per se” wrong. That the order of the authority is erroneous is evident from the provisions of Rule 7 of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974. Rule 7 provides as follows: “7. Procedure when more than one member of the family seeks employment.—If more than one member of the family of the deceased Government servant seeks employment under these rules, the Head of Office shall decide about the suitability of the person for giving employment. The decision will be taken keeping in the view also the overall interest of the welfare of the entire family, particularly the widow and the minor members thereof.” 5. Rule 7 clearly contemplates a situation where there is more than one member of the family of a deceased Government servant who seeks employment. The Rule does not provide for a rejection of applications of all the applicants on the ground that there is more than one applicant. This decision has to be taken keeping in view the overall interest and welfare of the entire family, particularly the widow (if there is any) and minor members in the family. Evidently, the order passed by the competent authority was contrary to the clear mandate of Rule 7 under which it was for the Head of Office to determine as to which one of the two competing claimants should be granted employment. 6. Consequently, the appropriate order for the learned Single Judge would have been to set aside the impugned order of the Superintendent dated 4 December 2015 and to remit the matter for fresh consideration. The rejection of the writ petition by the learned Single Judge was, with respect, wholly erroneous particularly for the reasons which have weighed in the ultimate order of rejection. 7. We accordingly allow the special appeal and set aside the order of the learned Single Judge dated 19 January 2016. The order of the Superintendent dated 4 December 2015 is also set aside. 7. We accordingly allow the special appeal and set aside the order of the learned Single Judge dated 19 January 2016. The order of the Superintendent dated 4 December 2015 is also set aside. We direct that the claim of the appellant for compassionate appointment shall be reconsidered by the second and third respondents within a period of three months of the receipt of a certified copy of this order. 8. The special appeal shall accordingly stand disposed of. There shall be no order as to costs. ——————