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2020 DIGILAW 585 (ALL)

Neha Saxena v. State of U. P.

2020-02-24

SHAMIM AHMED

body2020
JUDGMENT : 1. This writ petition has been filed by the petitioner before this Court, under Article 226 of the Constitution of India with the following prayers; "(i) to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 31.01.2020 (Annexure No.4) passed by respondent No.4 to this writ petition. (ii) to issue a writ, order or direction in the nature of mandamus commanding the respondents to appoint the petitioner under Dying-in-Harness Rules on suitable post forthwith. (iii) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to appoint the petitioner under Dying-in- Harness Rules on suitable post forthwith. (iv) Award costs of the petition to the petitioner." 2. Learned counsel for the petitioner submitted that the father of the petitioner late Krishna Kumar Saxena was a regular employee posted as Administrative Officer in the office of P.W.D. and while being in service he died on 15.11.2019 leaving behind the petitioner and her mother Smt. Mamta Saxena, the father of the petitioner was only earning member of the family. The mother of the petitioner is a housewife and she is an old lady. 3. Learned counsel for the petitioner further submits that the petitioner was married in the year 2009 but being the only heir of late Krishna Kumar Saxena and Smt. Mamta Saxena has been residing with her mother Smt. Mamta Saxena to look after her being an old lady who was suffering from several diseases and after the death of the father, she is the only person to look after her mother. 4. Learned counsel for the petitioner further submits that the mother of the petitioner, thereafter, moved an application on 27.01.2020 before the respondents to give appointment to the petitioner, under the Dying-in-Harness Rules on suitable post. The petitioner is fully qualified to be appointed on Group-C post as she has completed her graduation in the year 2006 in Commerce streame and she is also entitled to get the benefits of Government Orders issued from time to time and the benefits under the Dying in Harness Rules, 1974. 5. Learned counsel for the petitioner further submits that the 5. 5. Learned counsel for the petitioner further submits that the 5. respondent No.4 vide order dated 31.01.2020 rejected the application of the petitioner for appointment on compassionate ground only on the ground that the petitioner being a married daughter is not covered under the definition of family under Rule 2(c) of the U.P. Recruitment of Dependent of Government Servant Dying-in-Harness Rules, 1974, therefore, she is not entitled to be appointed under the Dying-in-Harness Rules, 1974 as amended in 2011. 6. Learned counsel for the petitioner further submits that the ground taken by the respondent No.4 while rejecting the application of the petitioner is arbitrary and without application of mind, the petitioner is covered under the definition of family as contemplated under Rule 2(c) of the U.P. Recruitment of Dependent of Government Servant Dying-in-Harness Rules, 1974 and the impugned order was passed totally in mechanical manner. 7. Learned Standing Counsel has countered the arguments advanced by the petitioner and submitted that the petitioner is not entitled for being appointed on compassionate ground as the petitioner is not covered under the definition of family under Rule 2(c) of the U.P. Recruitment of Dependent of Government Servant Dying-in-Harness Rules, 1974. 8. In reply to the arguments raised by the learned Standing Counsel, learned counsel for the petitioner submits that the Division Bench of this Court has dealt with this controversy and entitled married daughter for compassionate appointment this view is taken by the Court in Special Appeal (D) No.863 of 2015 (Neha Srivastava Vs. State of U.P. and another) and was pleased to hold that exclusion of married daughters from the ambit of the expression family in Rule 2(c) of the U.P. Recruitment of Dependent of Government Servant Dying-in- Harness Rules, 1974 is illegal and unconstitutional. It was further submitted that aggrieved by the judgment passed in Special Appeal (D) No.863 of 2015 dated 23.12.2015, the State of U.P. has filed Special Leave to Appeal (C) Nos.22646 of 2016 (The State of U.P. and another Vs. Neha Srivastava), which was dismissed by the Hon'ble Apex Court vide judgment and order dated 23.07.2019. 9. Having heard learned counsel for the petitioner, learned Standing Counsel for the State and perused the record. Neha Srivastava), which was dismissed by the Hon'ble Apex Court vide judgment and order dated 23.07.2019. 9. Having heard learned counsel for the petitioner, learned Standing Counsel for the State and perused the record. It is not disputed that the petitioner is the married daughter of late Krishna Kumar Saxena, working on the post of Administrative Officer in the office of P.W.D. and after the death of her father, the petitioner applied for compassionate appointment and she is living with her widow mother to look after her and there is no source of her livlihood and no other family members made any objection on petitioner's appointment on compassionate ground in place of late father. 10. It is also not out of place to mention here that the only objection taken by the respondents is that the petitioner being married daughter is not covered under the definition of family under Rule 2(c) of the U.P. Recruitment of Dependent of Government Servant Dying-in-Harness Rules, 1974, as such petitioner is not entitled for reliefs sought in the writ petition. This Court is not satisfied with the objection raised by the respondents, whereas this controversy has already been attained finality in Special Appeal (D) No.863 of 2015 (Neha Srivastava Vs. State of U.P. and another) and this Court has held that exclusion of married daughters from the ambit of the expression family in Rule 2(c) of the U.P. Recruitment of Dependent of Government Servant Dying-in-Harness Rules, 1974 is illegal and unconstitutional being violative of Articles 14 and 15 of the Constitution of India and further held that the married daughter is entitled to be considered for compassionate appointment. It is relevant to mention here that the Hon'ble Apex Court also dismissed the Special Leave to Appeal (C) No.22646 of 2016 vide judgment and order dated 23.07.2019 confirming the judgment passed in Special Appeal (D) No.863 of 2015 dated 23.12.2015 (Neha Srivastava Vs. State of U.P. and another). 11. In view of the aforesaid discussions and considering the judgment passed by this Court in Special Appeal (D) No.863 of 2015 dated 23.12.2015 (Neha Srivastava Vs. State of U.P. and another) and the judgment passed by the Hon'ble Apex Court in Special Leave to Appeal (C) No.22646 of 2016, the present writ petition is allowed and the impugned order dated 31.01.2020 is quashed. State of U.P. and another) and the judgment passed by the Hon'ble Apex Court in Special Leave to Appeal (C) No.22646 of 2016, the present writ petition is allowed and the impugned order dated 31.01.2020 is quashed. The Superintending Engineer, Budaun/ Pilibhit Zone, P.W.D. Bareilly, respondent No.4 is directed to consider and decide the claim of the petitioner in the light of the observations made above and the judgment passed by this Court expeditiously, preferably within a period of six weeks from the date of production of a certified copy of this order before him and the respondent No.4 may also communicate the decision to the petitioner forthwith. No order as to cost.