Allowed

Smt Baby v. State of U.P. and 2 Others

Allahabad HC30 Oct 2019WRIC/1475/2017

Case brief

AI extract

What is this about?

The Court declared Rule 104(5) of the Employees Service Rules 1960 ultra vires to the extent it excludes married daughters from the definition of 'family' for compassionate appointment. Holding such exclusion illegal and unconstitutional under Articles 14 and 15, the Court struck down the word 'unmarried' and directed reconsideration of the petitioner's claim.

What did the court decide?

Writ petition allowed; impugned order set aside; Rule 104(5) declared ultra vires to the extent of excluding married daughters; petitioner's claim to be reconsidered.

Smt Baby Vs State of U.P. and 2 Others — Pension and Retirement Benefits | Allahabad HC (2019)

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Court No. - 4

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Case :- WRIT - C No. - 1475 of 2017

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Petitioner :- Smt Baby Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Lavkush Kumar Shukla,Lokesh Kumar Dwivedi Counsel for Respondent :- C.S.C.,Mohit Singh,Satya Nisth Dwivedi

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Hon'ble Bala Krishna Narayana,J. Hon'ble Prakash Padia,J.

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Heard Sri Lokesh Kumar Dwivedi, learned counsel for the petitioner, learned Standing Counsel for respondent no.1 and Sri Satya Nisth Dwivedi, learned counsel for respondent nos. 2 and 3.

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The petitioner has preferred the present writ petition with the following prayers:-

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“I. Issue a suitable writ order or direction declaring the Rule 104 (5) Ultra-virus to the extent it exclude married daughter from the definition of family, meaning thereby the married daughter is also entitled to be included in the definition of family.

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II. Issue a writ order or direction in the nature of certiorari quashing the order dated 23.11.2016 (Annexure No.19 to the writ petition) passed by respondent no.2.

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III. Issue a writ order or direction in the nature of Mandamus directing the respondent No. 2 and 3 to appoint the petitioner on compassionate ground within specified period.

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IV. Issue any other writ order or direction as this Hon'ble Court, may deem fit and proper in the facts and circumstances of the case.

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V. Award costs of the petition to the petitioner.”

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Facts in brief as contained in the writ petition are that the petitioner's mother was a sweeper and she was working in the office of respondent no. 3. She died on 14.01.2006 during her service and she left behind her following heirs namely:-

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(a) Husband- Shri Swaroop Chandra (expired on 28.05.2015).

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(b) Daughter- Smt. Baby wife of Dinesh Chanda.

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(d) Daughter-Smt. Sunita (expired on 22.01.2010) wife of Shri

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Pradeep.

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After the death of the mother of petitioner namely Smt. Shakuntala Devi her nephew namely Anil Kumar has produced bogus adoption deed dated 18.11.1996 in his favour and tried to get the job on compassionate ground. The aforesaid adoption deed was challenged by the petitioner by filing Original Suit No. 352 of 2012 which was decreed by judgment and decree dated 20.03.2014 declaring the adoption deed dated 18.11.1996 in favour of Anil Kumar as void and illegal. The aforesaid judgment and decree dated 20.03.2014 was not challenged in appeal as such the same has became final between the parties. After the aforesaid judgment and decree dated 20.03.2014, the petitioner moved an application dated 05.06.2014 before the Senior Regional Manager Uttar Pradesh Cooperative Federation Limited (PCF Original Office) Agra/respondent no. 3, seeking employment on compassionate ground which was forwarded by him before the concerned competent authority. It is stated in the application that the petitioner was married but immediately after the marriage of the petitioner her husband had left the petitioner to her parent's house where she is living with her mother prior to her death. The claim set up by the petitioner was rejected by the General Manager (Administration) of Uttar Pradesh Cooperative Federation Limited vide its order dated 20.10.2015 on the ground that the petitioner is married daughter as such she does not come in the list of dependent family members. The aforesaid order dated 20.10.2015 was challenged by the petitioner before this Court by filing writ petition being Writ-A No. 1446 of 2016 (Smt. Baby vs. State of U.P. and 2 Others). The said writ petition was allowed by a Single Bench of this Court vide its judgment and order dated 20.01.2016, copy of which is appended as Annexure-7 to the writ petition. The judgment and the order passed in Writ-A No. 1446 of 2016 (Supra)

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on 20.01.2016 is reproduced below:-

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“Heard learned counsel for the petitioner, learned Standing Counsel for the respondent no.1, and Sri Devesh Vikram, holding brief of Sri Mohit Singh, learned counsel for the respondent nos.2 and 3.

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Following orders were passed in the matter on 14.1.2016:-

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"Learned counsel for the petitioner submits that the rejection of petitioner's claim for grant of compassionate appointment on the ground that a married daughter is not entitled to it, is in teeth of the Division Bench judgment of this Court dated 4.12.2015 in Writ Petition No.60881 of 2015.

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Learned counsel for the respondents may obtain instructions in the matter.

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Put up as fresh on 20.1.2016."

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Learned counsel for the respondents states that in view of the ratio laid down by the Division Bench of this Court in Writ Petition No.60881 of 2015 (Smt. Vimla Srivastava Vs. State of U.P. & Another), decided on 4.12.2015, the respondents shall reconsider the claim of petitioner, in accordance with law.

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In view of the statement made above, the order impugned dated 20.10.2015 is set aside. The respondent no.2 shall re-examine the matter in light of the observations made by the Division Bench of this Court, noticed above, by means of a reasoned speaking order, in accordance with law, within a period of three months from the date of presentation of a certified copy of this order.

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With the aforesaid observations/directions, the writ petition stands disposed of. ”

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It is argued that after the aforesaid order was served by the petitioner in the office of Managing Director of U.P. Cooperative Federation Limited/respondent no. 2, he rejected the claim of the petitioner as time barred vide order dated 20.05.2016. The aforesaid order dated 20.05.2016 was again challenged by the petitioner by filing a writ petition being Writ-A No. 31054 of 2016 (Smt. Baby vs. State of U.P. and 3 Others). The aforesaid writ petition filed by the petitioner was finally disposed of by a Single Bench of this Court vide its judgment and order dated 11.08.2016. The operative portion of the order dated 11.08.2016 is reproduced below:-

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“As can be seen from the aforesaid law, an application after five years cannot be rejected only on the ground that it has been filed beyond

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five years. In case the family of the deceased is living in a financial destitution and penurious conditions, the application can be considered subject to the evidence led by the applicant that his family is still living indigent circumstances. The said exercise has not been done by the respondents while passing the impugned order.

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In view of the law laid-down by the Full Bench, I am of the view that the order dated 20.05.2016 is unsustainable. Accordingly, it is set aside and the matter is remitted back to the respondent no. 2 to pass a fresh order in the light of the law laid-down by the Full Bench. The petitioner is at liberty to file fresh document in support of her case.

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The writ petition stands disposed of.”

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The aforesaid judgment and order dated 11.08.2016 was duly served by the petitioner in the office of the respondent no. 2 along with covering letter and various other relevant papers and documents. The respondent no. 2 called upon the petitioner for personal hearing on 17.11.2016. The petitioner duly appeared before the respondent no. 2 on the date fixed and placed all the relevant papers and documents available with her but without considering the claim of the petitioner the same was rejected by the respondent no. 2 vide its order dated 23.11.2016, copy of which is appended as Annexure-19 to the writ petition.

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It is argued that order dated 23.11.2016 passed by the respondent no. 2 is absolutely illegal and liable to be set aside, specially on the ground that while passing the aforesaid order respondent no. 2 has ignored the conditions mentioned by this Court in its judgment and order dated 11.08.2016 and that the delay in making the application was due to litigation as stated herein-above.

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We have perused the order dated 23.11.2016 passed by the respondent no. 2. From perusal of the same it is apparent that the claim of the petitioner was rejected by the respondent no. 2 on the two grounds namely (I) the Application form for appointment on compassionate ground was submitted by the petitioner after 8 years of the death of her mother. (II) Petitioner is a married daughter hence she does not fall within the ambit of Rule 104 (5) of

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Employee Service Rules 1980. The petitioner has preferred the present writ petition not only challenging the order dated 23.11.2016 passed by respondent no. 2 but also with the prayer to declare Rule 104 (5) Employee Service Rules 1980 as ultra-virus to the extent it excludes married daughter from the definition of family. Relevant Rule namely Rule 104 (5) of Employees Service Rules 1980 is reproduced below:-

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“104 . dke djrs gq, ejus okys deZpkfj;ksa ds vkfJrksa dh HkrhZ

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¼5½ tgka er deZpkjh ds ifjokj ds ,d ls vf/kd lnL; bl fofu;e ds v/khu lsok ;kstu pkgrs gkas] ogka e.My er deZpkjh ds ifjokj] fo'ks"kdj mldh fo/kok vkSj mlds vo;Ld lnL;ksa ds lEiw.kZ fgr dks n`f"V esa j[krs gq, ;g fu'p; djsxk fd fofu;e ds micU/kkas ds v/khu fdl lnL; dks lsok ;ksftr fd;k tkuk pkfg,A bl fo"k; esa e.My dk fofu'p; vfUre gksxkA

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fVIi.kh bl fofu;e ds iz;kstukFkZ “ ifjokj ” ds vUrxZr e`r deZpkjh dh iRuh] ifr] iq= vkSj vfookfgr ;k fo/kok iqf=;ka gksaxhA ”

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It is argued by Sri Dwivedi, learned counsel for the petitioner that controversy in this regard has already been decided by the Division Bench of this Court in Writ C No. 60881 of 2015 (Smt. Vimla Srivastava vs. State of U.P. and Another) decided on 04.12.2015 in which Hon'ble Division Bench has proceeded to allow the claim of the married daughter for compassionate appointment and 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 Article 14 and 15 of the Constitution of India. It is argued that the order impugned is liable to be set aside and Rule 104 (5) of the Rules, 1960 is liable to be declared as ultra-virus as prayed for by the petitioner in the present writ petition.

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Heard learned counsel for the parties.

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With the consent of learned counsel for the parties, the present writ petition is disposed of finally at the admission stage itself.

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We have heard learned counsel for the parties and perused the record as well as the order impugned passed by the respondent no. 2. From the perusal of the writ petition it is clear that earlier the claim set up by the petitioner was rejected by the respondents vide order dated 20.10.2015. The aforesaid order was challenged by the petitioner by filing a Writ-A No. 1446 of 2016 (Supra). The writ petition was finally disposed of by the Single Judge of this Court vide its judgment and order dated 20.01.2016 which has already been reproduced above. After the aforesaid order dated 20.01.2016 was passed, the claim set up by the petitioner was again rejected by the respondents vide order dated 20.05.2016 on the ground that the petitioner has submitted application under dying-in-harness Rules, after the expiry of more than 8 years. The aforesaid order dated 20.05.2016 was again challenged by the petitioner before this Court by filing a writ petition being Writ-A No. 31054 of 2016 (Supra). The said writ petition was finally disposed of by Single Bench of this Court vide its judgment and order dated 11.08.2016 by which the matter was remitted back to the respondent no. 2 to pass a fresh order in the light of the law laid down by the Full Bench of this Court in the case of Shiv Kumar Dubey. After the aforesaid orders were passed now, the claim set up by the petitioner was rejected by the respondent no. 2 again on the both grounds, i.e., the claim set up by the petitioner is time barred and the case of the petitioner does not fall within the ambit of “family” since the petitioner is married daughter.

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Learned counsel for the petitioner relied upon the judgment of this Court passed in Writ-C No. 60881 of 2015 (Smt. Vimla Srivastava v. State of U.P. & Anr.) decided on 04.12.2015. Following the aforesaid judgment, another judgment was delivered by the Another Coordinate Bench of this Court in Special Appeal Defective No. 863 of 2015 (Neha Srivastava vs. State Of U.P. And

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Another) decided on 23.12.2015. The operative portion of the aforesaid judgment is reproduced below:-

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“As indicated above, the coordinate Bench of this Court in Smt. Vimla Srivastava v. State of U.P. & Anr. (Supra) while proceeding with the matter had held that the exclusion of married daughters from the ambit of 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. The Court had also struck down the word 'unmarried' in Rule 2 (c) (iii) of the Dying-in-Harness Rules and proceeded to direct the respondent authorities to consider the claim of the applicant on the basis of all relevant facts and circumstances and directed that her right could not be excluded from consideration only on the ground of their marital status.

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As the coordinate Bench of this Court has also decided the question, the same is binding on us and holds the field. The judicial propriety demands that the same view be followed by the coordinate Benches.

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In view of the aforesaid facts and circumstances, the order impugned passed by learned Single Judge cannot sustain and is accordingly set aside. Consequently, it is directed that the competent authority would be at liberty to consider the claim for compassionate appointment of the petitioner on the basis of all the relevant facts and circumstances and the petitioner shall not be excluded from consideration for compassionate appointment only on the ground of her marital status.

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The special appeal is allowed accordingly.”

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Initially when the present writ petition was preferred, it was argued by the learned counsel for the respondents that against the judgment and order dated 23.11.2016 passed in the Case of Neha Srivastava (Supra) Special Leave to Appeal (C) No. 22646 of 2016 was filed by the State of U.P. before the Supreme Court and an interim order was granted by the Supreme Court on 29.07.2016. Today when the matter was taken up, learned counsel for the petitioner placed before this Court the final judgment delivered by the Supreme Court in the aforesaid case on 23.07.2019 by which the Special Leave Petition filed by the State of U.P. against the judgment and order dated 23.11.2015 was dismissed.

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In view of the same, it is argued that the petitioner is entitled for the reliefs claimed by her in the present writ petition. From perusal of the facts as stated above it is clear that law on this point has already been settled by Division Bench of this Court in the Case

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of Vimla Srivastava vs. State of U.P. & Anr. (Supra), followed by another judgment passed in the case of Neha Srivastava (Supra). Against the judgment delivered in the case of Neha Srivastava (Supra), Special Leave to Appeal was preferred by the State of U.P. before the Supreme Court. The said S.L.P. was also dismissed by the Supreme Court vide judgment and order dated 23.07.2019.

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In view of the same the order impugned in the present writ petition namely the order dated 23.11.2016 passed by respondent no. 2 is liable to be set aside and the same is hereby set aside. Rule 104 (5) is also declared as ultra virus to the extent is excludes married daughter from the definition of family. In conclusion we hold that the exclusion of married daughters from the ambit of the expression with family under the Rules of 1960 is illegal and unconstitutional being violative of Article 14 and 15 of the Constitution of India. We are accordingly strike down the word 'unmarried' under Rule 104 (5) of the Rules, 1960. In consequence we direct that the claim of the petitioner for compassionate appointment shall be reconsidered. We clarified that the Competent Authority shall be at liberty to consider the claim for compassionate appointment on the basis of all the relevant facts and circumstances and the petitioner's claim shall not be excluded from consideration only on the ground of her marital status.

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Writ petition is allowed. There shall be no order as to cost.

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Order Date :- 30.10.2019 Swati

Smt Baby v. State of U.P. and 2 Others

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What is this about?

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Smt Baby v. State of U.P. and 2 Others

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