Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 1084 (ALL)

Seema Gupta v. State of U. P.

2022-07-13

MANISH MATHUR

body2022
JUDGMENT : Manish Mathur, J. Heard learned counsel for petitioner and learned State Counsel appearing on behalf of respondent Nos. 1 and 2. 2. In view of order being proposed to be passed, notices to respondent Nos. 3 and 4 stand dispensed with. 3. Petition has been filed assailing the order dated 6.6.2022 passed by the District Inspector of Schools concerned whereby petitioner's representation for compassionate appointment has been rejected on the ground that she is divorced daughter of the deceased employee and therefore does not come within the definition of 'Family' as envisaged under Regulation No. 103 of the Regulations framed under the Intermediate Education Act, 1921. 4. Learned counsel for petitioner submits that the petitioner's father Late Shiv Tahal Gupta was appointed Assistant Teacher in the Intermediate College concerned on 8.9.1980, which was duly approved. While in service, he passed away on 26.9.2016 leaving behind his widow and the petitioner alongwith another daughter and son. It is submitted that at the time of passing away of her father, the petitioner was married but was subsequently divorced on 22.5.2019. It is submitted that the petitioner filed the application for compassionate appointment on 7.1.2021. 5. It is further submitted that the grounds for rejection of petitioner's representation is clearly against the Division Bench judgment of this Court rendered in the case of Smt. Vimla Srivastava v. State of U.P. and another, 2016(1) ADJ 21 (DB), wherein it has been held that a daughter cannot be excluded from consideration only on the ground of her marital status. It is submitted that subsequently vide notification dated 12.11.2021, the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 which are pari materia were also amended by the State Government to include daughters (including adopted daughters) and widow daughters-in-law in the definition of the term 'family'. It is submitted that although there is no such corresponding amendment in Regulation 103 which is applicable in the present case but the proposition of law striking down the exclusion of married daughters would have the same applicability. 6. Learned State counsel refuting submissions advance by learned counsel for petitioner as submitted that under Regulation 103 of the aforesaid Regulations, there is no inclusion of a divorced daughter under the definition of term 'family'. 6. Learned State counsel refuting submissions advance by learned counsel for petitioner as submitted that under Regulation 103 of the aforesaid Regulations, there is no inclusion of a divorced daughter under the definition of term 'family'. It is submitted that the judgment rendered in the case of Smt. Vimla Srivastava (supra) as well as the amendment incorporated in the dying in harness Rules of 1974 are inapplicable in the present facts and circumstances since they apply only to Government Servants and not to teachers of Private Intermediate Colleges even though under grant-in-aid. 7. Upon consideration of submissions advanced by learned counsel for parties and perusal of material available on record, it is apparent that Regulation 103 of the Regulations aforesaid does not contemplate inclusion of a divorced daughter within the definition of the terms 'family'. It is however relevant notice that judgment rendered by Division Bench of this Court in the case of Smt. Vimla Srivastava (supra) had considered a similar rule under the Rules of 1974. The aforesaid judgment in paragraph 11 has considered the aspect and has held that the test in matter of compassionate appointment is a test of dependency within defined relation-ship. It has been held that the assumption that after marriage a daughter cannot be said to be a member of family of her father or that she ceases to be dependent on her father irrespective of social circumstances cannot be countenanced. Excluding daughters purely on the ground of marriage has been held to constitute an impermissible discrimination which would be violative of Articles 14 and 15 of the Constitution of India. The relevant paragraphs of the aforesaid judgment are as follows : ''11. The stand which has been taken by the state in the counter-affidavit proceeds on a paternalistic notion of the position of a woman in our society and particularly of the position of a daughter after marriage. The affidavit postulates that after marriage, a daughter becomes a member of the family of her husband and the responsibility for her maintenance solely lies upon her husband. The second basis which has been indicated in the affidavit is that in Hindu Law, a married daughter cannot be considered as dependant of her father or a dependent of a joint Hindu family. The second basis which has been indicated in the affidavit is that in Hindu Law, a married daughter cannot be considered as dependant of her father or a dependent of a joint Hindu family. The assumption that after marriage, a daughter cannot be said to be a member of the family of her father or that she ceases to be dependent on her father irrespective of social circumstances cannot be countenanced. Our society is governed by constitutional principles. Marriage cannot be regarded as a justifiable ground to define and exclude from who constitutes a member of the family when the state has adopted a social welfare policy which is grounded on dependency. The test in matters of compassionate appointment is a test of dependency within defined relationships. There are situations where a son of the deceased Government servant may not be in need of compassionate appointment because the economic and financial position of the family of the deceased are not such as to require the grant of compassionate appointment on a preferential basis. But the dependency or a lack of dependency is a matter which is not determined a priori on the basis of whether or not the son is married. Similarly, whether or not a daughter of a deceased should be granted compassionate appointment has to be defined with reference to whether, on a consideration of all relevant facts and circumstances, she was dependent on the deceased Government servant. Excluding daughters purely on the ground of marriage would constitute an impermissible discrimination and be violative of Articles 14 and 15 of the Constitution.'' 8. It is also relevant to notice that a similar provision under the Rules of 1974 excluding a married daughter has been amended by the State Government vide notification dated 12.11.2021 to the effect that daughters (including adopted daughter) have now been included under the definition of 'family' of a deceased Government Servant. It is evident that the inclusion of the term daughters which includes adopted daughters has a very-wide import and is in the nature of an inclusive provision instead of an exclusive one. As such all the daughters of deceased Government Employee irrespective of her marital status is now included under the definition of term 'family' under the aforesaid Rules of 1974. 9. As such all the daughters of deceased Government Employee irrespective of her marital status is now included under the definition of term 'family' under the aforesaid Rules of 1974. 9. In the present facts, although the Rules of 1974 would not be applicable but it is seen that Regulation 103 of the Regulations under the Intermediate Education 1921 is pari materia to Rule 2(c) of the Rules of 1974, which are as follows: ^^103- bl fofu;ekoyh esa nh xbZ fdlh ckr ds gksrs gq, Hkh tgkWa fdlh ekU;rk ÁkIr lgk;rk ÁkIr lgk;rk ÁkIr laLFkk dk v/;kid ;k f'k{k.ksRrj deZpkjh oxZ ds fdlh deZpkjh dh tks fofgr ÁfØ;k ds vuqlkj fu;qDr fd;k x;k gks] lsok dky esa e`R;q gks tk;s] rks mlds dqVqEc ds ,d lnL; dks] tks 18 o"kZ ls de vk;q dk u gks] Áf'kf{kr Lukrd dh Js.kh esa v/;kid ds in #i esa ;k fdlh f'k{k.skRrj in ij] ;fn og in ds fy;s fofgr visf{kr 'kSf{kd Áf'k{k.k vgZrk;s] ;fn dksbZ gks] j[krk gks vkSj fu;qfDr ds fy;s vU;Fkk mi;qDr gks] fu;qDr fd;k tk ldrk gS% Li"Vhdj.k& bl fofu;e ds Á;kstukFkZ ^dqVqEc dk lnL;* dk rkRi;Z e`r deZpkjh% fo/k;k@fo/kqj] iq=] vfookfgr ;k fo/kok iq=h ls gksxkA fVIi.kh& ;g fofu;e vkSj fofu;e 104 ls 107 rd mu e`r deZpkfj;ksa ds laca/k esa ykxw gksaxs ftudh e`R;q 1 tuojh] 1981 dks ;k mlds i'pkr` gqbZ gksA** Rules of 1974: 2.''(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 brother, 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 the grandsons and the unmarried granddaughters of the deceased Government servant dependent on him.'' 10. The concept for exclusion of a married daughter as indicated in the judgment rendered in the case of Smt. Vimla Srivastava (supra) thus would have complete applicability particularly since the exclusion of a daughter of a deceased Government Employee only on the basis of her marital status has been held to be against the specific provisions of the Constitution of India. The Constitution of India being the fountain head of all laws within the State thus would have primacy over all legislation or subordinate legislation including Regulations framed under the Intermediate Education Act, 1921. As such, the proposition of law enunciated in the case of Smt. Vimla Srivastava (supra) would have complete applicability on the regulations framed under the Intermediate Education Act, 1921 also. 11. In view of aforesaid, the exclusion of a daughter from the definition of 'family' under Regulation 103 of the Regulations framed under the Intermediate Education Act, 1921 is clearly against the provisions of Articles 14 and 15 of the Constitution of India as envisaged in Smt.Vimla Srivastava (supra) 12. Considering the fact that the impugned order has rejected petitioner's representation only on the ground of marital status of petitioner although admitting her to be the daughter of a deceased teacher, clearly the said impugned order is violative of Articles 14 and 15 of the Constitution of India as also against the dictum of this Court in the case of Smt. Vimla Srivastava (supra) is therefore quashed by issuance of a writ in the nature of certiorari at the admission stage itself. 13. A further writ in the nature of mandamus is issued directing Respondent No. 2 i.e. District Inspector of Schools, Gorakhpur to revisit the petitioner's application irrespective of her marital status. The order pertaining to same shall be passed within a period of six weeks from the date a copy of this order is produced before the concerned authority. 14. Consequently, the writ petition succeed and is allowed. Parties shall bear their own costs.