Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 1095 (ALL)

Sonam v. State of Uttar Pradesh

2024-04-22

J.J.MUNIR

body2024
JUDGMENT : Hon'ble J.J. Munir, J. 1. This writ petition is directed against an order of the Nagar Ayukt, Nagar Nigam, Kanpur Nagar (for short, 'the Nagar Ayukt') dated 19.08.2023, rejecting the petitioner's claim, seeking compassionate appointment. 2. The petitioner's mother, Rani Devi was a Safai Karmi, employed with the Nagar Nigam, Kanpur Nagar (for short, 'Nigam'). She was last posted in Ward No.105 of the Nigam. She died in harness on 22.09.2012. The petitioner's mother left behind her, her husband and two daughters. Now, the petitioner, Smt. Sonam and her sister, Smt. Santosh Devi wife of Anil Kumar, both are married women. The petitioner has staked claim for compassionate appointment, alleging that she, her husband and her father, who stay with her in the same home, where her deceased mother did, were all dependent financially upon her mother. The petitioner's sister, who stays with her husband, has given a no objection on affidavit to the consideration of the petitioner's claim, saying that she is happily married and self-reliant. The petitioner's father has given an affidavit, which is both in the nature of a no objection and an affirmation of the petitioner's claim. The petitioner had moved for compassionate appointment on 4th January, 2013, whereas her mother died in harness on 22nd September, 2012. Apparently, the petitioner had moved with all promptitude. 3. Since the petitioner's application for compassionate appointment was not considered and gathering dust on the Nagar Ayukt's bureau, the petitioner instituted Writ-A No.16131 of 2022, seeking a direction for the consideration of her claim by a writ of this Court issued for the purpose. Writ-A No.16131 of 2022, earlier instituted by the petitioner as aforesaid, was disposed of directing the Nagar Ayukt to decide the petitioner's application for compassionate appointment dated 4th January, 2013. It was ordered that the application be decided in accordance with law within a period of two months from the date of production of a certified copy made in the aforesaid writ petition. It is in consequence of this order that the Nagar Ayukt has proceeded to reject the petitioner's claim by the order impugned dated 09.08.2023. It was ordered that the application be decided in accordance with law within a period of two months from the date of production of a certified copy made in the aforesaid writ petition. It is in consequence of this order that the Nagar Ayukt has proceeded to reject the petitioner's claim by the order impugned dated 09.08.2023. One of the considerations that prevailed with the Nagar Ayukt in rejecting the petitioner's claim was that she was a married daughter and the amendment to the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (for short, 'the Rules of 1974'), including the married daughters within the definition of ‘family’, was made on 4th May, 2022, much after the petitioner's mother died in harness on 22.09.2012. The Rules of 1974, as these stood on the date of death of the employee, would apply. The amended Rules of 1974, including the married daughter within the definition of the deceased's family would not be attracted. Of course, there was another consideration also, that weighed with the Nagar Ayukt in rejecting the petitioner's claim, to which allusion would shortly be made. Nevertheless, the position of the law that a married daughter was not included in the definition of the family under the Rules of 1974, as these stood at the time of death of the petitioner's mother, were held to govern the petitioner's right and materially affected the Nagar Ayukt's decision to reject the petitioner's claim. 4. This Court vide order dated 04.10.2023 issued notice to respondent Nos.2 and 3 and required the Nagar Ayukt to file his personal affidavit within two weeks, showing cause why the impugned order be not quashed and further directions made. The Nagar Ayukt's personal affidavit dated 21.10.2023 was filed in Court on 01.11.2023. It was recorded to be a counter affidavit. The petitioner waived his right to file a rejoinder. On the aforesaid set of pleadings, this petition was admitted to hearing, which proceeded forthwith. Judgment was reserved. 5. Heard Mr. Rajesh Tewari, learned Counsel for the petitioner, Mr. Yashwant Singh, learned Counsel for respondent Nos.2 and 3, and Mr. Dinesh Kumar Singh, learned Additional Chief Standing Counsel appearing on behalf of respondent No.1, the State. 6. It is submitted by Mr. Judgment was reserved. 5. Heard Mr. Rajesh Tewari, learned Counsel for the petitioner, Mr. Yashwant Singh, learned Counsel for respondent Nos.2 and 3, and Mr. Dinesh Kumar Singh, learned Additional Chief Standing Counsel appearing on behalf of respondent No.1, the State. 6. It is submitted by Mr. Rajesh Tewari, learned Counsel for the petitioner that though the petitioner's application for consideration of her case for compassionate appointment was made way back on 04.01.2013 and may not have carried the entire circumstances of the family, including the petitioner's financial dependency upon the deceased as well as that of her father, the fact is that a little careful consideration by the Nagar Ayukt would show that the deceased left behind her, her husband and the petitioner, her daughter, who were financially dependent upon her. The petitioner, though married, her husband, Anand Kumar, is not gainfully employed and stays with the petitioner in her parents’ house. The petitioner and her husband are both unemployed, as asserted in paragraph No.20 of the writ petition. The submission, therefore, is that with the petitioner's mother's demise, the family, comprising the deceased's husband and the petitioner, have plunged into an economic crisis, they could not have foreseen. It is also submitted by the learned Counsel for the petitioner that apart from a superficial consideration of the question if the petitioner was dependent upon her mother for her sustenance, the petitioner's claim has been discarded in the foreshadow of the supposition that a married daughter, in accordance with the law as it stood at the time, when the petitioner's mother passed away, would not be regarded a member of the deceased's family. It is urged that the said assumption is wrong and a married daughter, irrespective of the date of death of the deceased, vis-a-vis amendment made to the Rules of 1974 to include a married daughter, would still be a member of the deceased's family, entitled to a consideration of her case under the Rules of 1974 in view of the Bench decision of this Court in Smt. Vimla Srivastava v. State of Uttar Pradesh and another, 2016(1) ADJ 21 (DB). 7. Mr. 7. Mr. Yashwant Singh, learned Counsel for the respondents, on the other hand, has argued that the proposition of the law is too well settled to brook doubt that the law applicable to consider a claim under the Rules of 1974, has to be considered with reference to the date when the deceased passed away. A later change to the law by amendment or the adoption of new set of rules or scheme would make no difference. To the above end, Mr. Yashwant Singh has pressed in aid my decision in Bechan Giri Vs. Union of India and others, 2023(8) ADJ 692 . Mr. Singh has next submitted very forcefully that apart from the question of the validity of the petitioner's candidature to be considered for compassionate appointment, the petitioner's case was also tested on merits by the Nagar Ayukt and not found fit. The learned Counsel for the Nigam has impressed upon the Court the fact that the Nagar Ayukt has, on the basis of material produced by the petitioner, remarked that there is nothing to show that the petitioner was dependent upon her mother at the time of her demise. It is, therefore, on the merits of the matter also that the Nagar Ayukt, the competent Authority to act for the Nigam under the Rules of 1974, has not found a case for the petitioner. 8. Upon hearing learned Counsel for the parties carefully and perusing the record, we find that there are two parts to the impugned order. By the first, the Nagar Ayukt has regarded the petitioner not a member of the deceased's family, entitled to be considered, going by the law as it stood on the date of the deceased employee's death in harness. By the other part, some merits of the petitioner's case have been considered, albeit scantly, to hold against her. So far as the opinion of the Nagar Ayukt that the rights of the petitioner to claim compassionate appointment would be governed by the law as in force on the date of her mother's demise is concerned, it may not apply to the present case in the nature of things. 9. It is trite principle that the law, as it appears to stand, is that the right to be considered for compassionate appointment is governed by the law in force at the time of death in harness of an employee. 9. It is trite principle that the law, as it appears to stand, is that the right to be considered for compassionate appointment is governed by the law in force at the time of death in harness of an employee. It is not be governed by the law as amended, enforced, enacted or adopted at a subsequent date, like when the dependent's application for compassionate appointment comes up for consideration before the competent Committee or Authority. This is the principle that I have endorsed in Bechan Giri (supra) following the Supreme Court in Secretary to Government Department of Education (Primary) v. Bheemesh alias Bheemappa, AIR 2022 SC 402 . The principle in Bheemesh alias Bheemappa (supra) and Bechan Giri applies to a situation, where the law has undergone a constitutive change between the date of demise of the employee in harness and the time when the claim of a dependent of his/ her comes up for consideration under the relevant rules. If the rules have been changed by amendment or otherwise, the principle in Bechan Giri would hold the rights of the applicant for compassionate appointment to be governed by the rules as they stood at the time when the deceased employee died in harness; not with reference to the rules as they stand on a subsequent date. 10. This principle proceeds on the supposition that there is an amendment or change to the rules by a constitutive act amending the rules or introducing a new ones. Would it apply to a case, where the rules, as they stood at the time when the deceased employee passed away, have been struck down for some part of theirs, as unconstitutional by this Court, and, later on, the rules have been amended to bring in accord with the Court's judgment? We do not think that this principle would apply. The reasons is that the judgment of a Constitutional Court, striking down a rule or a statute for one part of it, that leaves the surviving statute or rule workable, in the context of a post constitution law or rule, is a declaration by the Court that the statute is to be read in the form that it survives. The surviving and workable statute, after the judgment striking down the offending portion, is an operative law and governs rights of parties under it. The surviving and workable statute, after the judgment striking down the offending portion, is an operative law and governs rights of parties under it. It does not require legislative compliance to give effect to the judgment of a Constitutional Court, striking down an offending part of a statutory rule or statute. Both the declaration by the Court and the surviving statute or statutory rules work by their own force. 11. The other facet of the matter is that since the offending portion of the statute is declared unconstitutional, particularly, as in the present case we would shortly see, on ground that it violates a Right in Part III of the Constitution, the effect of the judgment is declaratory; not constitutive. The judgment of the Court would declare the surviving statute to always have been the way the judgment has left it. The judgment does not enact a new law, but declares what it is. Therefore, the striking down of an offending provision in a statutory rule, as violative of Part III, would have retrospective effect, unless the Court, striking it down, says that it would be prospective in operation, which may sometimes be done to save or preserve rights or transactions that have been realized or concluded under the law, as it stood before judgment. In Smt. Vimla Srivastava (supra), the Division Bench had before their Lordships challenge to the vires of Rule 2(c) (iii) of the Rules of 1974, insofar as it limited eligibility to unmarried daughters and excluded married daughters. The Rule was assailed as violative of Articles 14 and 15 of the Constitution, because it brought about discrimination in public employment on the ground of marital status. The other ground was that the Rule was discriminatory as a son was not disqualified on the ground of his marital status, whereas the daughter was. Therefore, it was urged to be a case of discrimination on the ground of sex alone, which is prohibited by Article 15 of the Constitution. Their Lordships, after extensive survey of authority and the principles, that would apply, held the exclusion of married daughters from the definition of family in Rule 2(c)(iii) of the Rules of 1974 unconstitutional, being violative of Articles 14 and 15 of the Constitution. The word 'unmarried', occurring in Rule 2(c)(iii) of the Rules of 1974, was struck down. Their Lordships, after extensive survey of authority and the principles, that would apply, held the exclusion of married daughters from the definition of family in Rule 2(c)(iii) of the Rules of 1974 unconstitutional, being violative of Articles 14 and 15 of the Constitution. The word 'unmarried', occurring in Rule 2(c)(iii) of the Rules of 1974, was struck down. In Smt. Vimla Srivastava, Rule 2(c)(iii) of the Rules of 1974 was struck down in terms of the following orders: “26. In conclusion, we hold that the exclusion of married daughters from the ambit of the expression ''family'' in Rule 2 (c) of the Dying-in-Harness Rules is illegal and unconstitutional, being violative of Articles 14 and 15 of the Constitution. 27. We, accordingly, strike down the word 'unmarried' in Rule 2 (c) (iii) of the Dying-in- Harness Rules. 28. In consequence, we direct that the claim of the petitioners for compassionate appointment shall be reconsidered. We clarify that the competent authority would be at liberty to consider the claim for compassionate appointment on the basis of all the relevant facts and circumstances and the petitioners shall not be excluded from consideration only on the ground of their marital status.” 12. I had occasion to consider in Manjul Srivastava v. State of Uttar Pradesh and others, 2021(1) ADJ 433 the effect of the judgment of the Division Bench in Smt. Vimla Srivastava upon the surviving provisions of Rule 2(c)(iii) of the Rules of 1974. In Manjul Srivastava (supra) dwelling upon the issue of the effect of striking down the provisions of Rule 2(c)(iii) of the Rules 1974 by the Division Bench in Smt. Vimla Srivastava, I remarked: “19. If Mr. Upadhyay's submissions were to be regarded as one's advanced to bring home the distinction between the effect of a statute declared void for the violation of a fundamental right on one hand and legislative competence on the other, this Court has found it not to arise on facts because the petitioner here is also a citizen of India, whose fundamental right against discrimination on the ground of sex alone is equally infringed as that of the petitioners in Smt. Vimla Srivastava and Neha Srivastava. To all intents and purposes, Rule 2(c) (iii) of the Rules has been declared void in Smt. Vimla Srivastava and followed in Neha Srivastava. That declaration operates in rem. To all intents and purposes, Rule 2(c) (iii) of the Rules has been declared void in Smt. Vimla Srivastava and followed in Neha Srivastava. That declaration operates in rem. Thus, in the definition of 'family' occurring under Section 2(c) (iii), the word 'daughter' is to be read without the pre-fixed qualification 'unmarried'. The effect of the declaration, therefore, is that the Rule is to be read as one including 'daughter' in Rule 2(c) (iii), whether married or unmarried. 20. The submission of Mr. Upadhyay, if it were to deserve any serious consideration, would amount to accepting an almost insurmountable inhibition on the jurisdiction of this Court to declare an unconstitutional statute or statutory provision void for contravening a Part III right. A judgment of the Court declaring a statute void for the contravention of a fundamental right works to grant a declaration proprio vigore, rendering the provision invalidated; effaced for all intents and purposes. It does not certainly require a legislative compliance to give it effect. There could be some sense to that submission if after ignoring the word 'unmarried' occurring in Rule 2 (c) (iii) of the Rules, the provision had become workable. But, that it has not become. The word 'unmarried' has been struck down, applying the reputed doctrine of severability, that has always had approval of their Lordships of the Supreme Court. That doctrine has been accepted in A.K. Gopalan v. State of Madras, AIR 1950 SC 27 ; D.S. Nakara and others v. Union of India, AIR 1983 SC 130 ; State of Bombay and another v. F.N. Balsara, AIR 1951 SC 318 and, in later years, in Minerva Mills Ltd. and others v. Union of India and others, (1980) 3 SCC 625 and Kihoto Hollohan v. Zachillhu and others, 1992 Supp (2) SCC 651. 21. The severance of the offending part has made the remainder of Section 2(c) (iii) intra vires, purging it of the vice of discrimination on the ground of sex alone. What has remained back is a workable provision and is to be understood in the manner that a daughter, irrespective of her marital status, is to be regarded as a member of the deceased Government servant's family, in the same manner as a son, whether married or unmarried. What has remained back is a workable provision and is to be understood in the manner that a daughter, irrespective of her marital status, is to be regarded as a member of the deceased Government servant's family, in the same manner as a son, whether married or unmarried. This Court, therefore, holds that in the definition of the deceased's family, the word 'daughter' has to be read unqualified by the marital status of the daughter and it requires no further amendment to the Rules by the Government to make the right of a daughter of the deceased Government servant effective under the Rules. The impugned order, therefore, passed on the basis of a reading of Rule 2(c) (iii) of the Rules with the word 'daughter' qualified by the word 'unmarried' since struck down by this Court in Smt. Vimla Srivastava (and followed in Neha Srivastava), is manifestly illegal. It is so as it proceeds on the basis of a statutory provision, that has been declared unconstitutional and void by this Court.” 13. Manjul Srivastava was decided 15.12.2020. It was much after the decision in Manjul Srivastava, and, of course, long after Smt. Vimla Srivastava was decided, that the Government stepped in to amend Rule 2(c)(iii) by the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness (Twelfth Amendment) Rules, 2021 (for short, 'the Amended Rules of 2021'), enforced w.e.f. 12.11.2021. The said amendment aligned Rule 2(c)(iii) to the judgment in Smt. Vimla Srivastava, by omitting the word 'unmarried', occurring before the word 'daughter'. This amendment was absolutely unnecessary in the exercise of powers under the proviso to Article 309 of the Constitution by the Governor. The obvious reason is that after the judgment of the Division Bench in Smt. Vimla Srivastava, the word 'unmarried' before the word 'daughter' in Rule 2(c) (iii) of the Rules of 1974 had already been annihilated out of existence by a writ of this Court. Therefore, the amendment by the Amended Rules of 2021 is superfluous and of no consequence. All that was necessary to be done was a notification of the Rules of 1974 to be republished, bracketing the word 'unmarried' with an asterisk (*) and a footnote saying that the word 'unmarried' has been struck down by this Court, referring to the particulars of the judgment. All that was necessary to be done was a notification of the Rules of 1974 to be republished, bracketing the word 'unmarried' with an asterisk (*) and a footnote saying that the word 'unmarried' has been struck down by this Court, referring to the particulars of the judgment. In fact, a revised publication of the Rules, indicating that the offending provision had been struck down by this Court, should have been done in the Official Gazette much earlier in point of time. The Amended Rules of 2021 were not at all necessary to be made. 14. Once the position of the law was settled with the declaration of Rule 2 (c)(iii) of the Rules of 1974 unconstitutional to the extent that the word 'unmarried' qualified the word 'daughter', with the word 'unmarried' being struck down, it has to be regarded the law always to have been. It would, therefore, have to be regarded as the law that applied when the petitioner's mother died in harness way back on 22.09.2012. The petitioner's right would have to be judged accordingly. It cannot be regarded the way done by the Nagar Ayukt that the law changed in the year 2022 or whenever it was, with the enforcement of the Amended Rules of 2021. The finding to the effect that the law, at the time of the petitioner's mother's death, was that a married daughter was not eligible under the Rules of 1974, is, therefore, manifestly illegal and patently erroneous. 15. So far as the other question that the petitioner has not produced evidence to show that she was dependent upon her mother at the time of the employee's demise, we think that it was the duty of the Nagar Ayukt to have done a more careful consideration of the petitioner's case and taken into account the entire circumstances of the family, including the family's income after the employee's demise. It had to be ascertained by an exercise more inquisitorial in nature by the Nagar Ayukt, if it was a fact that the petitioner was staying at her parents' house along with her husband, dependent on her mother's income. What the petitioner says is that she along with her father and husband would stay in her parents' home, where the mother was the breadwinner. This fact for a first would require to be carefully examined, adopting an inquisitorial approach by the Nagar Ayukt. What the petitioner says is that she along with her father and husband would stay in her parents' home, where the mother was the breadwinner. This fact for a first would require to be carefully examined, adopting an inquisitorial approach by the Nagar Ayukt. The Nagar Ayukt, after all, is a former and a prospective employer. He is the primary decision maker, if the petitioner has a right to be considered for compassionate appointment. He is not a Court or Tribunal seized of an action or adversarial litigation, where the petitioner could be blamed for not producing necessary or sufficient evidence. The Nagar Ayukt was duty bound to inquire into the petitioner's claim, which he has not done at all. There is no finding by the Nagar Ayukt as to what post retiral benefits have been paid to the deceased's husband or her daughter, if there be some nomination to that effect made by the deceased. 16. The next step would be to see the financial condition of the family before the deceased passed away and afterwards. A short but keen and honest inquiry into the matter would reveal the real state of matters. A nonchalant and bureaucratic approach would reveal nothing. Unfortunately, it is the latter course, which has been adopted by the Nagar Ayukt, which cannot receive our commendation. 17. It is also true that compassionate appointment is not an alternate mode of recruitment to public service, but it is equally true that where rules have been enacted, it is a very important social measure to save a family from penury and destitution. There is, therefore, an obligation upon the Nagar Ayukt to inquire if indeed the petitioner, despite being a married daughter, was staying together with her parents, where her mother alone was the breadwinner and the others dependent upon her. If they were a family of that kind, out of the deceased's husband and her married daughter, the married daughter would certainly merit a consideration of her claim. It must be remarked that many conclusions are reached by social prejudices or preconceived notions, and sometimes also, considerations, which the law may approve in an altogether different context. If they were a family of that kind, out of the deceased's husband and her married daughter, the married daughter would certainly merit a consideration of her claim. It must be remarked that many conclusions are reached by social prejudices or preconceived notions, and sometimes also, considerations, which the law may approve in an altogether different context. Generally, the law matrimonial would require a husband to maintain his wife and if the wife were to bring proceedings for maintenance against her husband in the matrimonial jurisdiction, the husband cannot cite his unemployment as a defence not to pay. This principle, however, cannot be imported into a situation where an unmarried daughter's unemployed husband, for a fact, stays with his wife's parents, where the wife's mother alone earns bread for everyone, including her own husband. It would also be disregarding hard social realities that there do exist families amidst a very different social model in our society, that is regarded ideal or traditional, where women work and earn and the men are non-productive. Not only households, there are some larger sections of the society, where this kind of a family model may be more commonplace than others. 18. All these facets of the matter have sadly not at all been considered by the Nagar Ayukt, who has done no more than an eyewash in discarding the petitioner's claim. We do not wish to say that the petitioner's claim ought to have been accepted in all events. Possibly, we cannot say that in the exercise of our power of secondary review. But, the petitioner's claim has to be considered in the right earnest, on the basis of relevant evidence and taking into consideration relevant facts about the family, whose claim is before the Nagar Ayukt. That has not at all been done. 19. In the circumstances, in the considered opinion of this Court, the impugned order cannot be sustained. 20. In the result, this petition succeeds and is allowed. The impugned order dated 19.08.2023 passed by the Nagar Ayukt, Nagar Nigam, Kanpur Nagar is hereby quashed. A mandamus is issued to the Nagar Ayukt, Nagar Nigam, Kanpur Nagar to consider the petitioner's claim for compassionate appointment, bearing in mind the remarks in this judgment. 21. There shall be no order as to costs.