Point of Law: Categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment.

JUDGMENT :

ROHIT RANJAN AGARWAL, J.

1. The question before this Court for consideration is whether married daughters can be considered/eligible for compassionate allotment of dealership of a fair price shop on the death of their father/mother to whom the license to run fair price shop was originally granted by the State.

2. The challenge made in this writ petition is for declaring the word “unmarried” as unconstitutional from the definition of family prescribed under Sub-Clause (10) of Clause IV of the Government Order dated 05.08.2019 bearing No. 6/2019/1358/29.06.2019-162 lkŒ@2011

3. Facts, in brief, as narrated is that one Nekram, father of the petitioner, was granted license by the district authorities to run the fair price shop at Village Newadi Khurd, Nyay Panchayat Aheripur, Block Maheva, Pargana Bharthana, District Etawah in the year 2005. Unfortunately, he passed away on 15.02.2021 leaving behind his wife Suman Devi, three minor sons and four daughters. Smt. Suman Devi, the widow, applied for the grant of license under compassionate allotment in view of the Government Order dated 05.08.2019. She was informed that as she was not having the requisite qualification, she was not entitled for the appointment as dealer of fair price shop under the government order as Sub-Rule 3 of Rule IV provides for eligibility.

4. Facing with financial problem she made an application that dealership may be allotted to her daughter, present petitioner, on 26.05.2021, as she is dully qualified as per the government order. The said application is pending consideration before the authorities.

5. Sri. Rakesh Dubey, learned counsel for the petitioner, submitted that the definition of word ‘family’ under the Government Order dated 05.08.2019 excludes married daughter and only the unmarried daughter, legally separated daughter and widowed daughter is included for the grant of compassionate allotment in case of death of original licensee, which violates Article 14 of the Constitution of India.

6. He submitted that a married daughter cannot be excluded from the definition of family as well as under the category of daughters, and State cannot make any such distinction between the daughter of a person under various category such as unmarried, married, legally separated and widow daughter. He has relied upon the decision of Division Bench of this Court in case of Smt. Vimla Srivastava vs. State of U.P. and Another, Writ (C) No. 60881 of 2015 decided on 04.12.2015 wherein this Court held that exclusion of married daughters from the ambit of expression “family” in Rule 2 (c) of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 (hereinafter referred as ‘Dying-in-Harness Rules’) is illegal and unconstitutional being violative of Article 14 and 15 of the Constitution. Thus, the word “unmarried” in Rule 2 (c) (III) of the Dying-in-Harness Rules was struck down. Reliance has also been placed upon a decision of coordinate Bench of this Court in case of Manjul Srivastava vs. State of U.P. and Others, Writ Appeal No. 10928 of 2020 decided on 15.12.2020 wherein this Court held as under:

“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. 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 th