JUDGMENT : 1. Heard Sri Rajesh Kumar Verma, learned counsel for petitioner, learned State Counsel appearing on behalf of opposite parties 1 and 3 and Mr. Rajiv Singh Chauhan, learned counsel for opposite party no.2. 2. Petition has been filed against order dated 04.04.2019 whereby petitioner's candidature for compassionate appointment in terms of U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 has been rejected on the ground that petitioner has been indicated in the records as a married lady, which does not come within the definition of family in the aforesaid rules. 3. Learned counsel for petitioner submits that aforesaid ground for rejection is totally untenable in view of a Division Bench decision of this Court rendered in Smt. Vimla Srivastava v. State of U.P. and another [Writ -C No.60881 of 2015] in which it has been categorically held that the exclusion of married daughters from the ambit of the expression 'family' is unconstitutional. As such it is submitted that petitioner is entitled to be considered for compassionate appointment in terms of aforesaid Rules of 1974. 4. Learned counsel appearing for opposite party no.2 has opposed the petition with submission that petitioner's father passed away in the year 1985 and therefore her candidature cannot be considered after such a long lapse of time since it would render fruitless the very purpose of compassionate appointment with regard to providing succour to a dependent family instantly. 5. It has also been submitted that judgment rendered in Smt. Vimla Srivastava(supra) would be applicable only prospectively and not retrospectively since petitioner's rights stand crystallized as in year 1985 and not in the year 2019. 6. Upon consideration of material on record and submissions advanced by learned counsel for the parties, it is apparent that by means of impugned order, candidature of petitioner has been rejected only on the ground that she is a married lady and, therefore, would not come within the meaning of 'family' in terms of Rules of 1974. 7. This Court in Smt. Vimla Srivastava(supra) has clearly held that the exclusion of married daughters from the ambit of the expression 'family' in Rules 2(c) of Rules of 1974 is illegal and unconstitutional. The word 'unmarried' in rule 2(c) (iii) of the said Rules was struck down. 8. 7. This Court in Smt. Vimla Srivastava(supra) has clearly held that the exclusion of married daughters from the ambit of the expression 'family' in Rules 2(c) of Rules of 1974 is illegal and unconstitutional. The word 'unmarried' in rule 2(c) (iii) of the said Rules was struck down. 8. It is quite clear that impugned order has rejected petitioner's candidature only on that single ground of petitioner being married and neither eligibility nor any other factor has been considered by the authorities. 9. So far as submission of learned counsel for opposite parties with regard to prospective application of judgment in Smt. Vimla Srivastava(supra) is concerned, it is clear from a reading of aforesaid judgment that the exclusion of married daughters from the ambit of the expression 'family' has been held to be illegal and unconstitutional, being violative of Articles 14 and 15 of the Constitution of India. 10. A statute or a provision of statute which is struck down as being ultra vires to Constitution of India or any of the fundamental rights applies retrospectively since it goes against the very basic tenets of the Constitution of India. As such, the striking down of exclusion of married daughter from the ambit of family being held to be violative of fundamental rights, operates retrospectively. 11. It has been held by Hon'ble the Supreme Court of India in Assistant Commissioner, Income Tax, Rajkot v. Saurashtra Kutch Stock Exchange Ltd. reported in (2008) 14 SCC 171 as under:- "35. In our judgment, it is also well settled that a judicial decision acts retrospectively. According to Blackstonian theory, it is not the function of the court to pronounce a “new rule” but to maintain and expound the “old one”. In other words, Judges do not make law, they only discover or find the correct law. The law has always been the same. If a subsequent decision alters the earlier one, it (the later decision) does not make new law. It only discovers the correct principle of law which has to be applied retrospectively. To put it differently, even where an earlier decision of the court operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood." "36. It only discovers the correct principle of law which has to be applied retrospectively. To put it differently, even where an earlier decision of the court operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood." "36. Salmond in his well known work states: “The theory of case law is that a judge does not make law; he merely declares it; and the overruling of a previous decision is a declaration that the supposed rule never was law. Hence any intermediate transactions made on the strength of the supposed rule are governed by the law established in the overruling decision. The overruling is retrospective, except as regards matters that are res judicatae or accounts that have been settled in the meantime.” (emphasis supplied)" "37. It is no doubt true that after a historic decision in Golak Nath v. State of Punjab [ AIR 1967 SC 1643 : (1967) 2 SCR 762 ] this Court has accepted the doctrine of “prospective overruling”. It is based on the philosophy: “The past cannot always be erased by a new judicial declaration.” It may, however, be stated that this is an exception to the general rule of the doctrine of precedent." 12. Even otherwise the rejection order has been passed in the year 2019 while the judgment has been rendered in Smt. Vimla Srivastava(supra) in the year 2015. Even by that consideration, petitioner's candidature was kept alive by opposite parties themselves till the year 2019 and even by prospective application of aforesaid judgment, petitioner's candidature could not have been rejected on that ground. 13. In view of aforesaid facts, impugned order dated 04.04.2019 is clearly unsustainable and is quashed by issuance of a writ in the nature of Certiorari. Opposite party no.2, District Basic Education Officer, Unnao is directed to consider the claim of petitioner for compassionate appointment afresh considering her eligibility for the same in terms of aforesaid Rules of 1974 and her candidature shall not be rejected or excluded from consideration only on the ground of her marital status. Aforesaid consideration shall be done by said opposite party by a reasoned and speaking order within a period of six weeks from the date a copy of this order is produced before said authority. 14. Aforesaid consideration shall be done by said opposite party by a reasoned and speaking order within a period of six weeks from the date a copy of this order is produced before said authority. 14. Consequently, the writ petition stands allowed at the admission stage with consent of the parties. 15. The petitioner shall be at liberty to approach the said authority with regard to any pending pensionary dues of her late father. The same shall also be considered within aforesaid time period.