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2023 DIGILAW 839 (ALL)

Radhika Baghel v. State of U. P.

2023-03-28

AJIT KUMAR

body2023
JUDGMENT : 1. Counter affidavit filed today is taken on record. 2. Learned counsel for the petitioner Sri R.C. Dwivedi submits that he does not want to file rejoinder affidavit. 3. Heard learned counsel for the respective parties. 4. The legal issue that emerges out for consideration relates to the claim of a married daughter for compassionate appointment on the ground that she and her husband were dependents of the deceased father who died in harness while working as Daftari (Class-IV employee) in a recognized aided Institution. 5. The claim of the petitioner when was not being considered by the District Inspector of Schools, she came to file a writ petition being Writ -A No. 37939 of 2014 which was disposed of on 30.07.2014 with a direction to the District Inspector of Schools to take a decision in the matter. The District Inspector of Schools passed order on 05.11.2014 rejecting the claim of the petitioner on the ground that as per regulation 103 of Chapter III of Intermediate Education Act, 1921 a married daughter could not come within the definition of 'family' of dependents. Petitioner again came to this Court vide Writ -A No. 4553 of 2015 which was disposed of with a direction dated 13.09.2022 to decide the claim of the petitioner afresh in the light of judgment of Smt. Vimla Srivastava v. State of U.P. and another (Writ - C No. 60881 of 2015 decided on 04.12.2015) and also a judgment passed in identically placed one Seema Gupta, petitioner in Writ - A No. 9842 of 2022, Seema Gupta v. State of U.P. & 3 Others (decided on 13.07.2022), the claim of the petitioner has again come to be rejected. 6. The argument advanced by Shri Dwivedi, learned counsel appearing for the petitioner is that in view of the judgment of Division Bench in the case of Smt. Vimla Srivastava (supra), presided over by the Chief Justice Dr. D.Y. Chandrachud (as his Lordship then was), married daughter has been taken to be falling within the definition of the word 'family' on analogy and analysis of the legal principle discussed by the Division Bench as under : "While assessing the rival submissions, it must be noted at the outset that the definition of the expression "family" in Rule 2 (c) incorporates the categories of heirs of a deceased government servant. Among them are the wife or husband, sons and adopted sons, unmarried daughters, unmarried adopted daughters, widowed daughters and widowed daughters-in-law. Clause (ii) of Rule 2 (c) brings a son as well as an adopted son within the purview of the expression "family" irrespective of marital status. A son who is married continues to be within the ambit of the expression "family" for the purpose of Rule 2 (c). But by the stroke of a legislative definition, a daughter who is married is excluded from the scope and purview of the family of a deceased government servant unless she falls within the category of a widowed daughter. The invidious discrimination that is inherent in Rule 2 (c) lies in the fact that a daughter by reason of her marriage is excluded from the ambit of the expression "family". Her exclusion operates by reason of marriage and, whether or not she was at the time of the death of the deceased government servant dependent on him. Marriage does not exclude a son from the ambit of the expression "family". But marriage excludes a daughter. This is invidious. A married daughter who has separated after marriage and may have been dependent on the deceased would as a result of this discrimination stand excluded. A divorced daughter would similarly stand excluded. Even if she is dependent on her father, she would not be eligible for compassionate appointment only because of the fact that she is not "unmarried". The only basis of the exclusion is marriage and but for her marriage, a daughter would not be excluded from the definition of the expression "family". 7. The Division Bench also relied upon its earlier judgment in the case of Isha Tyagi v. State of U.P. & 3 Others, (Writ-C No. 41279 of 2014, decided on 26.08.2014) wherein, the married daughters of freedom fighter were directed to be considered while providing horizontal reservation in State services and then the Court held thus : "It would be anachronistic to discriminate against married daughters by confining the benefit of the horizontal reservation in this case only to sons (and their sons) and to unmarried daughters. If the marital status of a son does not make any difference in law to his entitlement or to his eligibility as a descendant, equally in our view, the marital status of a daughter should in terms of constitutional values make no difference. If the marital status of a son does not make any difference in law to his entitlement or to his eligibility as a descendant, equally in our view, the marital status of a daughter should in terms of constitutional values make no difference. The notion that a married daughter ceases to be a part of the family of her parents upon her marriage must undergo a rethink in contemporary times. The law cannot make an assumption that married sons alone continue to be members of the family of their parents, and that a married daughter ceases to be a member of the family of her parents. Such an assumption is constitutionally impermissible because it is an invidious basis to discriminate against married daughters and their children. A benefit which this social welfare measure grants to a son of a freedom fighter, irrespective of marital status, cannot be denied to a married daughter of a freedom fighter." 8. In view of the above, the Division Bench struck down as ultra vires the word 'unmarried' in Rule 2(C)3 of the Dying in Harness Rules. It is thereafter, that the State Government came to amend the U.P. Government Servants (Dying in Harness) Rules, 1974 vide amendment dated 12.11.2021. The State Government has also issued a gazette notification of the department of Secondary Education vide Madhyamik Shiksha Parishad, U.P., Prayagraj dated 06.12.2022 amending Regulation 103 of Chapter III of Intermediate Education Act, 1921. 9. Now the word 'daughter' has only been provided which would include adopted daughter also. Thus, the word 'daughter' would include naturally a married daughter. 10. The law is well settled that once it comes in the judicial pronouncement of a Constitutional Court of law holding a provision to be ultra vires: A), it would be taken to have never been there; and B) Whatever is void by ultra vires is void ab initio/ non est. I hold accordingly on the same principle as followed in Vimla Srivastava (supra) the similar provisions contained under regulations to be ultra vires as it existed under relevant regulation of Chapter III of Intermediate Education Act, 1921. I find that for these very reasons analogus provision contained under the regulations framed under the Intermediate Education Act, 1921 have also come to be accordingly amended by the State Government. I find that for these very reasons analogus provision contained under the regulations framed under the Intermediate Education Act, 1921 have also come to be accordingly amended by the State Government. Merely because the regulations did not get amended for want of such action and the action on the part of Madhyamik Shiksha Parishad has taken place after it was held so by a Division Bench of this Court that a married daughter would also be a member of the dependents family within the word 'family', the claim of petitioner as a married daughter should not have been denied. 11. Two arguments have been advanced by learned Standing counsel Sri Pal, first, the application for compassionate appointment was highly time barred and the second one is that recently the Supreme Court in the case of The State of Maharashtra & Others v. Madhuri Malti Vidhate in Civil Appeal No. 6938 of 2020 decided on 30.12.2022 has held that compassionate appointment is an exception to the general rule of appointment in public services in favour of dependents of the deceased employee who died in harness and the consideration is purely humanitarian in nature with an intention to provide source of livelihood to the family who had suddenly landed in financial crisis. So the purpose, it was held is to enable the family to tied over sudden crisis and thus it was held that married daughter cannot be held to be dependent upon the mother for the purposes of compassionate appointment. 12. Learned Standing Counsel has also relied upon the judgment in the case of The Government of India v. P. Venkatesh decided on 01.03.2019 being SLP (C) No. 5810 of 2017 and also the judgment in the case of State of Bengal v. Devbrat Tiwari and others decided on 03.03.2023 in Civil Appeal Nos. 8842-8855 of 2022. Reliance has been placed upon paragraph nos. 7.1 and 8. 13. Having heard learned counsel for the respective parties and their arguments raised across the bar, in my view, the question of denial of compassionate appointment to the applicant/ petitioner in the instant case cannot be justified on the ground that she is a married daughter. 8842-8855 of 2022. Reliance has been placed upon paragraph nos. 7.1 and 8. 13. Having heard learned counsel for the respective parties and their arguments raised across the bar, in my view, the question of denial of compassionate appointment to the applicant/ petitioner in the instant case cannot be justified on the ground that she is a married daughter. Once the State itself has come to accept the Division Bench judgment of this Court in the case of Smt. Vimla Srivastava (supra) so as to amend the U.P. Government Servants (Dying in Harness) Rules, 1974 and later on also vide gazette notification on behalf of Madhyamik Shiksha Parishad amended regulation 103 of Chapter III of the Intermediate Education Act, it would be taken that it was always there to be the law and so the State intended to correct rule/ regulation by incorporating a provision to include married daughter within the meaning of word 'family' of dependents of deceased employee looking to the judgment of Division Bench. It has been admitted at the bar that the said judgment of Smt. Vimla Srivastava (supra) still holds the field and SLP preferred against which was also dismissed. 14. The judgment in the case of State of Maharashtra (supra) would not be applicable being distinguishable on facts because in the present case compassionate appointment is governed by the rules which have stood interpreted so by the Division Bench judgment delivered in the year 2015. Now the rule in the State of U.P. is that married daughter would stand included within the definition of 'family' of dependents of a deceased employee who died in harness for the purposes of compassionate appointment. 15. It can of course, be pleaded and validly so that when the provision under which married daughters have been expressly excluded in the State of Uttar Pradesh has been held to be ultra vires and SLP against such judgment has been dismissed, this should be taken to be law in the State of Uttar Pradesh and now the rules have been amended also suitably. Institutions that receive grant in aid have been also given benefit of compassionate appointment in the State on same analogy and so the regulations have been amended. 16. The plea taken by the State respondents that at the time when late employee died and petitioner had applied rules were not amended would not hold merit either. Institutions that receive grant in aid have been also given benefit of compassionate appointment in the State on same analogy and so the regulations have been amended. 16. The plea taken by the State respondents that at the time when late employee died and petitioner had applied rules were not amended would not hold merit either. In government service or service in an establishment receiving aid from State Government in one State would be governed by same principles of law in so far as beneficial legislation is concerned. Identically placed persons cannot be discriminated against by the same employer or even by instrumentality of State where aid is received from the State. Once division bench held a provision to be ultra vires it would equally apply to analogues provisions framed by the same State or its instrumentalities. So the judgment cited by learned Standing Counsel is distinguishable and would not apply to the case in hand. 17. Coming to the question of delay as involved in the present case, I find that the petitioner has been pursuing the matter since the year 2015 itself. Her late father died in the year 2012 and she came to file writ petition before this Court as early as in the year 2014 being Writ -A No. 37939 of 2014 filed on14.07.2014. In the order passed by the District Inspector of Schools dated 05.11.2014 he has not taken the ground of delay, if any, caused by the present applicant, while rejecting her claim for compassionate appointment and instead her claim for compassionate appointment came to be rejected only on account of the fact that Regulation 103 of Chapter III of the Intermediate Education Act did not provide for married daughter to be included within the definition of 'family' of dependents. While the petition being Writ -A No. 4553 of 2015 remained pending before this Court, against the said order, the Vimla Srivastava's judgment (supra) intervened in which married daughter was directed to be included and the relevant provisions not including the married daughter as the member of dependent's 'family' of the deceased was held to be ultra virus. 18. A concurrent Court applied the principle of Vimla Srivastava's case (supra) in the case of Seema Gupta v. State of U.P. & 3 others in Writ - A No. 9842 of 2022. 18. A concurrent Court applied the principle of Vimla Srivastava's case (supra) in the case of Seema Gupta v. State of U.P. & 3 others in Writ - A No. 9842 of 2022. In the said judgment delivered on 30.07.2022 and thereafter, Madhyamik Shiksha Parishad rushed to amend its provision as contained in Regulation 103 vide gazette notification dated 06.12.2022 which now uses the word 'daughter' only which would include both married and unmarried daughters undisputedly. 19. In this view of the matter, therefore, I am not impressed with the argument that the petitioner in any manner was responsible for delay in applying for compassionate appointment. 20. However, the argument advanced by learned Standing Counsel that a principle that should be taken as a rule that a married daughter, if married during lifetime of her father or mother in government service, shall always be taken as dependent upon her husband unless and until it could be established that even her husband has not been earning and both were dependents upon the deceased at the time of his death, holds substance. In Indian concept of 'family' a wife is taken to be dependent upon her husband, if she herself is not employed. So also the first family members are taken to be dependents. Likewise even a married daughter if not having an earning husband may be dependent, and for this above purpose a married daughter would fall within the word 'family' so as not to deny her claim for compassionate appointment. For this purpose, it would be necessary to examine whether husband has been gainfully employed and if not his financial status and the financial status of the married daughter. 21. In such above view of the matter, therefore, the order passed by the District Inspector of Schools dated 30.11.2022 impugned in this petition is hereby quashed. 22. The matter is remitted to the District Inspector of School only for the limited purpose to examine the financial status of the petitioner and that of her husband. 21. In such above view of the matter, therefore, the order passed by the District Inspector of Schools dated 30.11.2022 impugned in this petition is hereby quashed. 22. The matter is remitted to the District Inspector of School only for the limited purpose to examine the financial status of the petitioner and that of her husband. If it is found that the petitioner's husband is having good financial status in terms of landed property or otherwise which can be said to be sufficient enough for the survival of the family, the petitioner may not be offered compassionate appointment as a rule because it is always to be seen whether even after a lapse of considerably long period like seven years of the death of earning member as in this case, a family still needs service for survival or does the family still need financial help to meet any crisis more especially in the circumstances when the widow may be receiving pension and all the daughters including the petitioner were married prior to the death of the employee. 23. It is made clear that upon above parameters, if petitioner stands successful, she will be offered compassionate appointment and will not be denied same for any technicality. 24. An appropriate decision shall be taken in the light of observations made herein above within a period of two months from the date of production of certified copy of this order. 25. In this view of the matter, petitioner would also be required to disclose the entire property of her husband and also her property that she owns. 26. With the aforesaid observations and directions, this petition stands disposed of.