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2018 DIGILAW 233 (ALL)

BABITA THAKUR v. STATE OF U. P.

2018-01-30

ABHINAVA UPADHYA

body2018
JUDGMENT Hon’ble Abhinava Upadhya, J.—By means of this writ petition, the petitioner who is divorced daughter is claiming compassionate appointment. The petitioner’s father was a Government employee and was holding the post of “Boat Chalak” as class IV employee in the Revenue Department in Tehsil Bijnor. While in service unfortunately he died on 26.12.2013. It is to be noted that the petitioner was married much prior to the death of the Raghuveer Singh, i.e., on 7.7.2000. After the death of Raghuveer Singh, the petitioner and her husband Sandeep Kumar filed a suit for divorce under Section 13-B of the Hindu Marriage Act for divorce upon mutual consent and divorce was granted on 13.2.2016 by the Principal Judge, Family Court, Bijnor (Annexure-4 to the writ petition). 2. It is now submitted that a divorced daughter should be treated at par with widowed daughter which is included in the definition of a dependents under U.P.Recruitment of Dependents of Government Servants Dying-in-Harness Rules,1974 although in the rules married and divorced daughter are not included within the definition of dependents. 3. Learned counsel for the petitioner has relied upon a decision of this Court in the case of Roobi Mansoori v. State of U.P. and 4 others (Writ Petition No. 48375 of 2015 vide judgment and order dated 18.11.2015 wherein this Court has issued a direction to Principal Secretary Law/Legal Remembrancer, U.P. Shashan,Lucknow (U.P.) to take necessary steps with the consultation of the State Government in accordance with law with regard to the inclusion of the divorced daughter to be taken at par with the widowed daughter under the Rules of 1974. 4. It is to be noted that the divorce in the present case is on mutual consent. That apart in various decisions of Hon’ble Supreme Court it has been held that as a rule, appointments in the public services should be made strictly on the basis of open invitation of application and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. Therefore, any appointment on a public post to the exclusion of all deserving and qualified candidates can be made strictly within the four corners of the Rules. 5. Similar view has been expressed by a Division Bench of this Court in the case of Smt. Sunita Bhadooria v. State of U.P. and another, 2006(1) ADJ 172 , para 39 of which is quoted herein below: “Thus, in view of the above, we cannot be persuaded to interpret the provisions of the scheme liberally, in the garb of doing justice, as compassionate employment itself is an exception to the service jurisprudence, otherwise, it could have been in violation of Articles 14 and 16 of the Constitution, and exception always requires to be strictly interpreted even if there is hardship to any individual. Exception is provided with the object of taking it out of the scope of the basic law and what is included in it and what the legislature desires to be excluded (Vide Union of India and others v. M/s. Wood Papers Ltd. and another, AIR 1991 SC 2049 ; Satnam Singhand another v. Punjab & Haryana High Court and others, AIR 1997 SC 983 ; and Grasim Industries Ltd. and another v. State of Madhya Pradesh and another, AIR 2000SC 66).” 6. Under the circumstances, considering the discussions above, if the Rules do not provide for inclusion of divorced daughter as dependent, the Courts cannot direct treating them to be dependent. Therefore, this Court in the Roobi Mansoori (Supra) has rightly referred the matter to the Principal Secretary Law/Legal Remembrancer, U.P. Shashan, Lucknow (U.P.) for consultation with the Governmental authorities to do the needful. Unless there is any amendment in the rule, no direction can be issued for appointment. 7. The writ petition has no merit and is accordingly dismissed.