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2021 DIGILAW 1381 (ALL)

Pushpa Devi v. State Of U. P.

2021-11-22

NEERAJ TIWARI

body2021
JUDGMENT : Neeraj Tiwari, J. 1. Heard learned counsel for the petitioner, Sri D.K. Tiwari, learned Additional Chief Standing Counsel for the State-respondents. 2. By way of present petition, petitioner is challenging the order dated 17.06.2021 passed by respondent no. 3 contained as Annexure no. 1 to the writ petition, rejecting the application of the petitioner for allotment of fair price shop and also Government Order dated 05.08.2019 issued by the Special Secretary, Government of U.P., Lucknow contained as Annexure no. 8 to the writ petition. 3. Learned counsel for the petitioner submitted that petitioner is widowed daughter-in-law of late Mahadei Devi, who was earlier allotted fair price shop. He further submitted that husband of the petitioner namely Bablu died in a road accident leaving behind the petitioner as well as two daughters aged about 11 years and 6 years. Petitioner and her daughters are fully dependent upon late Mahadei Devi, earlier fair price shop holder, who died on 11.04.2021. Succession certificate was also issued by Gram Pradhan on 30.06.2021 mentioning therein that petitioner is legal heir of late Mahadei Devi wife of late Killu Yadav. She is Intermediate passed and is eligible for allotment of fair price shop. He next submitted that after death of mother-in-law, there is no other male or female member for compassionate allotment under succession. Therefore, being legal heir (daughter-in-law, widowed), petitioner submitted an application dated 06.05.2021 for allotment of fair price shop in place of late Mahadei Devi. The said application of the petitioner was rejected by respondent no. 3 vide order dated 17.06.2021 only on the ground that widowed daughter-in-law does not come within the purview of 'family' as defined in Paragraph IV(10) of the Government Order dated 05.08.2019. He next submitted that Paragraph IV(10) of the said Government Order includes unmarried, legally separated and widowed daughter, but excludes daughter-in-law, widowed or not, without any reason. 4. In support of his contention, learned counsel for the petitioner has placed reliance upon a Full Bench judgment of this Court in the case of U.P. Power Corporation Ltd. Vs. Smt. Urmila Devi passed in Special Appeal No. 1026 of 2003 decided on 27.01.2011 reported as 2011(3) ADJ 432 (FB). 4. In support of his contention, learned counsel for the petitioner has placed reliance upon a Full Bench judgment of this Court in the case of U.P. Power Corporation Ltd. Vs. Smt. Urmila Devi passed in Special Appeal No. 1026 of 2003 decided on 27.01.2011 reported as 2011(3) ADJ 432 (FB). In case of appointment under the Dying in harness, matter with regard to consideration of widowed daughter-in-law has been referred before the Full Bench in which, it has been held that widowed daughter-in-law is having better right than daughter. Ratio of law given in this case shall also be applicable in the present case, where widowed daughter-in-law has been excluded for consideration as it was not defined within 'family' in the Government Order dated 05.08.2019. He next submitted that under such facts of the case and law laid down by this Court in the aforesaid judgment, paragraph IV (10) of Government Order dated 05.08.2019 may be modified by including daughter-in-law, widowed or not, within the definition of 'family'. 5. He further submitted that following the Full Bench judgment in the case of U.P. Power Corporation Ltd. (supra), this Court in the matters of Smt. Sudha Jain Vs. State of U.P. and others, 2011(5) ADJ 730 and Smt. Geeta Srivastava Vs. State of U.P. and others, 2012(9) ADJ 1 has taken same view and direction has been issued to include daughter-in-law within the definition of 'family' for the purpose of appointment. 6. Dr. D. K. Tiwari, learned Additional Chief Standing Counsel opposed the submissions made by learned counsel for the petitioner and submitted that in light of the Government Order dated 05.08.2019, application of the petitioner has rightly been rejected, but could not dispute the factual and legal submissions made by learned counsel for the petitioner and law laid down by Full Bench of this Court in the matter of appointment of widowed daughter-in-law on compassionate ground. 7. I have considered the rival submissions made by learned counsel for the parties, perused the record and judgments relied upon by the counsel for petitioner. The facts of the case are undisputed. The licence of fair price shop of the petitioner was rejected only on the ground that widowed daughter-in-law does not come within the purview of 'family' as defined in paragraph IV(10) of the Government Order dated 05.08.2019. Except this, no other ground has been taken. The facts of the case are undisputed. The licence of fair price shop of the petitioner was rejected only on the ground that widowed daughter-in-law does not come within the purview of 'family' as defined in paragraph IV(10) of the Government Order dated 05.08.2019. Except this, no other ground has been taken. Paragraph IV(10) of the said Government Order is quoted below:- “(IV) xzkeh.k {ks= esa jk'ku ds nqdkuksa ds p;u gsrq vfuok;Z vgZrk,a ,oa 'krsZ %& ¼1½ vH;FkhZ ds [kkrs esa de ls de :Œ40000@& miyC/k gksa] rkfd og viuh nqdku gsrq vkoafVr ,d ekg dh lkexzh dk ,d ckj esa mBku djus ds fy, vkfFkZd :i ls l{ke gksA ¼2½ vH;FkhZ }kjk vius vkosnu ds lkFk ftykf/kdkjh }kjk fuxZr pfj= izek.k i= Hkh izLrqr fd;k tk;sxkA ¼3½ mldh 'kSf{kd ;ksX;rk de ls de gkbZ Ldwy vFkok mlds led{k ijh{kk mŸkh.kZ gksA ¼4½ vH;FkhZ dh vk;q 21 o"kZ ls vf/kd gks vkSj ifjokj es fdlh vU; lnL; ds uke dksbZ mfpr nj nqdku vkoafVRk u gksA ¼5½ vH;FkhZ LFkkuh; fuoklh gksA ¼6½ vH;FkhZ }kjk :i;s 1000@& dh vusZLV euh dk cSd MªkV ftyk iwfrZ vf/kdkjh ds i{k es tek fd;k tk;sxkA mDr vusZLV euh mfpr nj nqdku ds vkoaVu dh fLFkfr esa izfrHkwfr jkf'k es lek;ksftr dj yh tk;sxhA ¼7½ mfpr nj nqdku dh fu;qfDr dh fLFkfr es vH;FkhZ dk :i;s 10]000@& dh izfrHkwfr tek djuh gksxh rFkk :i;s 100@& dk uku&TwkfMf'k;y LVkEi isij yxkuk gksxkA ;g izfrHkwfr u;s fu;qDr gksus okys nqdku ds vH;fFkZ;ksa ls yh tk;sxh] ftudh nqdku iwoZ ls gh fu;qDr gS vkSj lapkfyr gS] muls u;s nj ij izfrZHkwfr tek djok;h tk;sxhA ¼8½ vH;FkhZ ds fo:) dksbZ Hkh vkijkf/kd ekeys iathd`r u gks vkSj u gh og fdlh vkijkf/kd ekeys esa nf.Mr fd;k x;k gksA ¼9½ vH;FkhZ vFkok mlds ifjokj ds fdlh lnL; ds uke iwoZ es vkoafVr mfpr nj nqdku vfu;ferrk ds dkj.k fujLr u gqbZ gks vkSj mlds fo:) vko';d oLrq vf/kfu;e 1955] dh /kkjk 3@7 ds varxZr vFkok vkijkf/kd n.M+ lafgrk ds varZxr dkfjr fdlh t?kU; vijk/k es fof/kd dk;Zokgh u gqbZ gksA ¼10½ Xkkze iz/kku ds ifjokj ds lnL;ksa ds i{k es mfpr nj dh nqdku ds vkoaVu dk izLrko ugha fd;k tk;sxkA ifjokj dh ifjHkk"kk] tSlk fd mŒizŒ vko';d oLrq ¼forj.k ds fofu;eu dk fu;a=.k½ vkns'k 2016 es nh xbZ gS] fuEukuqlkj gksxh %& • ifjokj dk eqf[k;k • ifr@iRuh fof/kd :i ls viuk;s x;s nŸkd larku lfgrA • LkUrku tks ifjokj ds eqf[k;k ij iw.kZ :i ls vkfJr gksA • vfookfgr] fof/kd :i ls i`Fkd vkSj fo/kok csVh] vkSj • ifjokj ds eqf[k;k ij iw.kZ :i ls vkfJr ekrk@firk^^ 8. The issue of consideration for appointment of widowed daughter-in-law was before Full Bench of this Court in the case of U.P. Power Corporation Ltd. (supra), which clearly states that widowed daughter-in-law is having better right than the daughters as included in Government Order dated 05.08.2019. Relevant paragraph of the said judgment is quoted below:- "We must, however, note one feature of the definition of the word 'family' as generally contained in most Rules. The definition of 'family' includes wife or husband; sons; unmarried and widowed daughters; and if the deceased was an unmarried government servant, the brother, unmarried sister and widowed mother dependant on the deceased government servant. It is, therefore, clear that a widowed daughter in the house of her parents is entitled for consideration on compassionate appointment. However, a widowed daughter-in-law in the house where she is married, is not entitled for compassionate appointment as she is not included in the definition of 'family'. It is not possible to understand how a widowed daughter in her father's house has a better right to claim appointment on compassionate basis than a widowed daughter-in-law in her father-in-law's house. The very nature of compassionate appointment is the financial need or necessity of the family. The daughter-in-law on the death of her husband does not cease to be a part of the family. The concept that such daughter-in-law must go back and stay with her parents is abhorrent to our civilized society. Such daughter-in-law must, therefore, have also right to be considered for compassionate appointment as she is part of the family where she is married and if staying with her husband's family. In this context, in our opinion, arbitrariness, as presently existing, can be avoided by including the daughter-in-law in the definition of 'family'. Otherwise, the definition to that extent, prima facie, would be irrational and arbitrary. The State, therefore, to consider this aspect and take appropriate steps so that a widowed daughter-in-law like a widowed daughter, is also entitled for consideration by way of compassionate appointment, if other criteria is satisfied. Learned Chief Standing Counsel to forward a copy of this order to the Secretary of the concerned Department in the State Government for appropriate consideration." 9. This ratio of law has been followed by this Court in the cases of Smt. Sudha Jain and Smt. Geeta Srivastava (supra). 10. Learned Chief Standing Counsel to forward a copy of this order to the Secretary of the concerned Department in the State Government for appropriate consideration." 9. This ratio of law has been followed by this Court in the cases of Smt. Sudha Jain and Smt. Geeta Srivastava (supra). 10. In the present case, after death of late Mahadei Devi, out of three family members, who are dependants (widowed daughter-in-law and two minor daughters), only petitioner is major in the age to submit application for allotment of fair price shop under succession after death of her mother-in-law. She had applied for the same, but rejected only on the ground that widowed daughter-in-law is not covered within the 'family'. Ratio of law given in Full Bench in the case of appointment is fully applicable in the present case also and daughter-in-law, widowed or not, is having better right than daughter, who is included in the definition of 'family' in Paragraph IV(10) of the Government Order dated 05.08.2019. 11. Therefore, under such facts of the case and legal proposition, I find no good reason to sustain the impugned order dated 17.06.2021 as well as Paragraph IV(10) of Government Order dated 05.08.2019 so far as it excludes daughter-in-law, widowed or not, within the definition of 'family'. 12. Accordingly, the writ petition is allowed. Let a writ of certiorari be issued quashing the impugned order dated 17.06.2021 passed by respondent no. 3 and modifying the Paragraph IV(10) of the Government Order dated 05.08.2019 to the extent to include daughter-in-law, widowed or not, within the definition of 'family'. A writ of mandamus be issued directing the respondent no. 1 Secretary, Food and Civil Supplies, Government of U.P., Lucknow to issue fresh Government Order or modification in Government Order dated 05.08.2019 including daughter-in-law, widowed or not, within the definition of 'family' . 13. Learned Chief Standing Counsel is directed to send a copy of this order to respondent no. 1 Secretary, Food and Civil Supplies, Government of U.P., Lucknow for issuance of fresh/modified Government Order at the earliest, maximum within a period of four weeks from the date of receiving of copy of this order. In case Department of Food and Civil Supplies is having posting of Additional Chief Secretary or Principal Secretary, they are responsible to ensure the compliance of this order for issuance of fresh Government Order or modification in the Government Order dated 05.08.2019. In case Department of Food and Civil Supplies is having posting of Additional Chief Secretary or Principal Secretary, they are responsible to ensure the compliance of this order for issuance of fresh Government Order or modification in the Government Order dated 05.08.2019. 14. Petitioner is also given liberty to serve the certified copy of this order before the respondent no. 1, Secretary, Food and Civil Supplies, Government of U.P., Lucknow for compliance. 15. Thereafrter, the respondent no. 3 is directed to reconsider the application of the petitioner afresh and pass appropriate order in accordance with fresh/modified Government Order within two weeks thereafter.