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2018 DIGILAW 886 (ALL)

RUPAM v. STATE OF U. P.

2018-04-12

SUNITA AGARWAL

body2018
JUDGMENT : Hon'ble Mrs. Sunita Agarwal,J. Heard learned counsel for the petitioner and learned Standing Counsel. 2. The present writ petition is directed against the order dated 19.6.2017 passed by the Chief Medical Officer, Bijnor rejecting the claim of the petitioner for grant of compassionate appointment on the ground that she was not the dependent of the deceased employee who had died on 7.6.2006. 3. The order impugned categorically records that after the death of the deceased employee, his son had claimed for compassionate appointment. The said application was scrutinized by the competent authority and the family members of the deceased employee were certified vide letter dated 30.9.2006. All other family members gave 'No Objection Certificate' in favour of the applicant (son of the deceased employee). Vide letter dated 7.7.2011, the applicant (son of the deceased employee) was informed that he could not be appointed on the post of Junior Clerk/Health Worker (Male) on compassionate ground rather an offer was given for his engagement against a Class IV post. No reply was received pursuant to the said letter and as such no appointment under Dying-in-Harness Rules, 1974 was given. 4. Insofar as the petitioner is concerned, it is recorded that at the time of death of the deceased employee, she was married and does not come within the meaning of the "dependent" of the deceased employee under the U.P. Recruitment of Dependents of Government Servants (Dying-in-Harness) Rules, 1974 (hereinafter referred to as the ''Rules 1974"). 5. The reason given for rejection of claim of the petitioner is sought to be challenged in the present writ petition with the assertion that the petitioner is a 'divorced' daughter as she got a decree of divorce dated 30.11.2015 passed by the Principal Judge, Family Court, Bijnor. On the date of grant of divorce-decree, her claim for compassionate appointment was pending consideration before the competent authority. The Chief Medical Officer, Bijnor has erred in rejecting the claim of the petitioner on the ground that she was a married daughter on the date of death of the employee. 6. Submission is that the "divorced daughter" falls within the definition of "family" being included in "unmarried and widowed daughter" under Rule 2(c)(iii) of the Rules, 1974. 7. The Chief Medical Officer, Bijnor has erred in rejecting the claim of the petitioner on the ground that she was a married daughter on the date of death of the employee. 6. Submission is that the "divorced daughter" falls within the definition of "family" being included in "unmarried and widowed daughter" under Rule 2(c)(iii) of the Rules, 1974. 7. Reliance is placed upon the judgment of this court in Roobi Mansoori vs. State of U.P. and others, Writ-A No. 48375 of 2015 to submit that this Court has issued a direction to the State Government to make appropriate amendments in the Dying-in-Harness Rules to include "divorced daughter" as belonging to the "family" of the natural father so as to extend the benefit of compassionate appointment to the "divorced daughter". 8. Learned Standing Counsel, on the other hand, supports the order impugned for the reasoning given therein. 9. Having heard learned counsel for the parties and perused the record. Before going into the merits of the claim of the petitioner, it would be appropriate to go through the provisions of Rules, 1974 and the purpose and intent of the said provision. 10. The object and purpose of Dying-in-Harness Rules, 1974 as mentioned in the Act is as follows:- "In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and all other powers enabling him in this behalf, the Governor of Uttar Pradesh is pleased to make the following special rules regulating the recruitment of the dependants of Government servants dying in harness:" 11. The definition of "dependent" has not been provided in the Rules. The definition of "dependent" has not been provided in the Rules. However, the definition of "family" is inclusive providing the relations of the deceased Government servant who can be considered for appointment on compassionate ground which includes:- "(c) "family" shall include the following relations of the deceased Government servant; (i) wife or husband; (ii) sons/adopted sons; (iii) unmarried daughters, unmarried adopted daughters, widowed daughters and widowed daughters-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; provided that if a person belonging to any of the above mentioned relations of the deceased Government servant is not available or is found to be physically and mentally unfit and thus ineligible for employment in Government service, then only in such situation the word "family" shall also include grandsons and the unmarried grand daughters of the deceased Government servant dependent on him." 12. The Full Bench judgment of this Court in the case of Km. Shehnaj Begum vs. State of U.P. and Others, Special Appeal No. 1343 of 2011 has held that the definition of "family" as provided in rule 2(c) of Dying-in-Harness Rules, 1974 is exhaustive and cannot be extended by the Court beyond the intent of the rule. "By specifying the relations in reference to family the intention appears to be to make the definition exhaustive. If it had been the intention to bring within the ambit of word 'family' all the relations, it was unnecessary to specify some of them. It seems to us that word "includes" has been used in the rules in the sense of "means" and according to us, this is the only construction, the word 'include' can bear in the context of the rules. If the intention of the legislature was not to make the list exhaustive, there was hardly any necessity to have described dependent relations of being included in the definition of family. It also does not appear to us that relations specified in the Rules have been described ex. If the intention of the legislature was not to make the list exhaustive, there was hardly any necessity to have described dependent relations of being included in the definition of family. It also does not appear to us that relations specified in the Rules have been described ex. abundanti cautela i. e. in abundant caution for the simple reason that in case the definition of word family was left to ones imagination without specifying the relations to which it intended to extent the benefit would have resulted into totally chaotic situation leaving it open to all and sundry who could even remotely demonstrate to be a member of the family, in view of the varied definition and interpretation of the word, to claim the benefit destroying the very purpose and object of the rules much less advancing the same." 13. It was, thus, held that the word "family" has to be interpreted in reference to the context, it has been used keeping in view of the object and purpose of the Rules balancing with the mandate of equality enshrined under Articles 14 and 16 of the Constitution of India. 14. The Dying-in-Harness Rules, 1974 is a special enactment regulating the recruitment of the dependents of the Government servants dying in harness. Thus, the object of framing of the Rules, 1974 is to relieve the family of a deceased Government servant from immediate financial distress by providing employment to the dependents of the deceased, who suffer on account of death of the sole bread earner of the family. The word "dependent" is first and foremost condition for consideration of claim of an applicant. 15. All other requirements such as educational qualification possessed by the applicant would require consideration only in case the applicant is included in the definition of "family" being "dependent" of the deceased Government servant. 16. In the case of Smt. Mariya Guraity vs. State of U.P. and others, Writ-A No. 53036 of 2016 this Court has held that the married daughter cannot be included in the definition of "family" as provided in Rule 2(c) of Dying-in-Harness Rules inasmuch she cannot be said to be financially dependent upon her natural father. In the Indian society, after marriage, a daughter moves out of house of her natural father and is financially dependant upon her husband. She cannot be said to be dependent upon her natural father financially. In the Indian society, after marriage, a daughter moves out of house of her natural father and is financially dependant upon her husband. She cannot be said to be dependent upon her natural father financially. This apart, under the law relating to maintenance, the responsibility to maintain wife is upon the husband. The appointment under Dying-in-Harness Rules are not governed by the rule of succession but are governed by the intent of the rule and can be extended to such person who is covered by the definition of "family" as provided thereunder after due consideration of his/her claim. 17. It is equally settled principle of law that the words used in the Statute have to be read in the context of the legislative intent and object for framing of the enactment. The Court cannot add or subtract any words in the rule while interpreting the same. 18. Looking to the object and purpose underlying the provision for grant of compassionate appointment which is in the nature of exception to the general provisions relating to recruitment, the Apex Court in the case of Director of Education (Secondary) and another vs. Pushpendra Kumar and others, 1998 (5) SCC 192 has observed that care has to be taken while enforcing such provision so that it does not unduly interfere with right of other persons to whom the post would have been otherwise available. Paragraph 8' of the report reads as under:- "Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependent of a deceased employee". 19. In a catena of decision, the Apex Court has held that the scheme of compassionate appointment being an exception to Articles 14 and 16 has to be strictly construed and confined only to the purpose it seeks to achieve. 19. In a catena of decision, the Apex Court has held that the scheme of compassionate appointment being an exception to Articles 14 and 16 has to be strictly construed and confined only to the purpose it seeks to achieve. Reference may be made to the judgments of the Apex Court in General Manager, Uttaranchal Jal Sansthan vs. Laxmi Devi and others, 2009 (7) SCC 205 ; State of Jharkhand and others vs. Shiv Karampal Sahu, 2009 (11) SCC 453 and Bhawani Prasad Sonkar vs. Union of India and others, 2011 (4) SCC 209 . 20. In the light of the legal principles noted above, in the facts of the instant case, it is noteworthy that the status of the petitioner at the time of death of her father i.e. on 7.6.2006 was that of a married daughter. The divorce suit namely Marriage Petition No. 599 of 2014 (Smt. Rupam vs. Rajpal Singh) was filed in the year 2014 i.e. after a period of eight years of the date of death of her father on the ground that she had left her matrimonial house around two years back. Thus, in any case, the petitioner was not dependent upon her father at the time of his death rather she was living in her matrimonial home with her husband. The first requirement of being 'dependent' of the deceased employee, therefore, is not fulfilled by the petitioner. The change of her status from that of the married daughter to the 'divorced daughter' would be of no relevance in the facts and circumstances of the present case. 21. Reliance placed upon the judgment of the Apex Court in Roobi Mansoori, therefore, is misconceived. 22. This apart, the purpose and intent of providing employment under Dying-in-Harness Rules is to provide financial assistance to the family to overcome the immediate crisis. The brother of the petitioner was offered appointment in the year 2011 on compassionate ground on an application moved by him. The said offer was not accepted. 23. In view of the said fact, this Court reaches at an inescapable conclusion that the family of the deceased employee was not in financial crisis and they have been able to meet the adverse circumstances in all respects. 24. Thus viewed from all angles, this Court does not find any error in the order of rejection of claim of the petitioner. 25. No interference is required. 24. Thus viewed from all angles, this Court does not find any error in the order of rejection of claim of the petitioner. 25. No interference is required. The writ petition is, accordingly, dismissed.