Court No. - 36

Case :- WRIT - A No. - 4466 of 2020

Petitioner :- Smt. Sangita Yadav

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Avneesh Tripathi,Shikhar Tandon

Counsel for Respondent :- C.S.C.

Hon'ble Rajiv Joshi,J.

Heard Shri Shikhar Tandon, learned counsel for the petitioner and learned

Standing Counsel for the respondents.

By means of this petition filed under Article 226 of the Constitution, the

petitioner has challenged the order dated 22.07.2017, whereby, the

respondent no.3, Superintendent of Police, Kushinagar has rejected the

claim of petitioner for compassionate appointment only on the ground that

the petitioner being married daughter could not fall within the category of

family of the deceased (consisting his dependents) as per the Dying-in-

Harness Rules, 1974.

Learned Counsel for the petitioner submits that the petitioner is married

daughter of the deceased employee and as per Rule 2 (c) (iv) of the

Rules,1974 she comes within the definition of family and is entitled for

compassionate appointment. In support of his contention he relied upon

the division bench judgement of this Court in the case Smt. Vimla

Srivastava v. State of U.P. and others (2016) 1 ADJ.

Learned Standing Counsel states that the petitioner is married daughter

of the deceased employee and she is depend on her husband but could

not dispute the legal pronouncement as well as the case of Smt. Vimla

Srivastava v. State of U.P. and others (2016) 1 ADJ.

Having heard learned counsel for the respective parties and their

arguments raised across the bar, this Court is of the considered view that

once the Division Bench of this Court has held in the case of Vimla

Srivastava (supra) that the married daughter could not have been

discriminated against in the matter of compassionate appointment by

defining family excluding married daughter of the deceased under the

Dying-in-Harness Rules and therefore, held such provision to be ultra vires

to Article 14 of the Constitution. Following the said judgment, this Court

also decided the case of one Neha Srivastava which was challenged

before the Supreme Court in Special Leave Petition No. 22646 of 2016,

State of U.P. v. Neha Srivastava and that came to be dismissed on

23.07.2019. Thus, complying with the legal pronouncement, the State

Government further amended the Dying-in-Harness Rules, 1974 vide

notification dated 12.11.2021, which now as per the definition incorporated

vide para 2 would entitle the married daughter also as the same has not

been excluded.

This Court is of the view that once the provision that excludes the married

daughter from the definition of family of deceased having been declared

as ultra virus to Article 14 of the Constitution, circular letter of any of the

departments which is an instrumentality of State within the meaning of

Article 12 of the Constitution, would be taken to have included married

daughter also within the definition of dependents of the family for the

purpose of compassionate appointment.

In such above view of the matter, the order dated 22.07.2017 is hereby

quashed. The matter is remitted to concerned competent respondent to

decide the matter of compassionate appointment of the petitioner taking

her to be within the definition of family of dependent of the deceased and

decide her claim strictly in accordance with law.

It is further clarified that in the even petitioner is found eligible for the

compassionate appointment then such compassionate appointment shall

not be refused on any technical ground including the ground of delay.

Appropriate order is required to be passed by the competent authority

within a period of eight weeks from the date of production of certified copy

of this order.

With the aforesaid observations and directions, this writ petition stands

allowed.

Order Date :- 18.5.2022

S.P.

Digitally signed by SANJAY PURI

Date: 2022.05.23 17:03:04 IST

Reason:

Location: