RESERVED JUDGMENT

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Civil Writ Petition No.691 of 2016

Nisha Lohani

……. Petitioner

Versus

State of Uttarakhand and others

.….Respondents

Ms. Mamta Joshi, Advocate for the petitioner.

Mr. B.P.S. Mer, Brief Holder for the State.

Reserved on:30.03.2017

Delivered on:24.04.2017

Hon’ble Rajiv Sharma , J.

1.

The father of the petitioner died in harness on

26.06.2013.

He

was

working

as

peon

in

Girls

Government Higher Secondary School, Tallital, Nainital.

The mother of the petitioner submitted a representation

on 28.07.2014 before the competent authority to

consider the name of the petitioner for appointment on

compassionate ground but no decision had been taken

by the respondents. Petitioner approached this Court by

way of filing of WPSS No.2331 of 2015 which was

disposed of with a direction to the respondents to take a

decision on the representation as expeditiously as

possible. The representation was rejected vide order

dated 15.01.2016 primarily on the ground that ‘married

daughter’ does not fall within the ambit of “Family” as per

the Rule 2(c) of the U.P. Recruitment of Dependants of

Government Servants Dying in Harness Rules, 1974

(hereinafter referred to as “The Dying in Harness

Rules,1974”) adopted by State of Uttarakhand.

2.

Ms. Mamta Joshi, Advocate appearing on

behalf of the petitioner has vehemently argued that the

2

Rule 2(c) of the Dying and Harness Rules is arbitrary and

unreasonable, since, it excludes the married daughter for

getting compassionate appointment after the death of her

father. The Dying and Harness Rules is also violative of

Articles 14, 15 & 16 of the Constitution of India, since

the married son is not excluded but only married

daughter is excluded from getting the job on the

compassionate ground.

3.

Learned

State

counsel

appearing

for

respondents has supported the Dying and Harness

Rules.

4.

I have heard learned counsel for the parties

and perused the documents available on record carefully.

5.

Petitioner lost her father on 26.03.2013. It is

not in dispute that the case of the petitioner was rejected

on 15.01.2016 on the ground that married daughter is

not included in the definition of the “family” for the

purpose of appointment on compassionate ground.

6.

There is no intelligible differentia so as to

distinguish the married daughter and married son for the

purpose of appointment on compassionate ground under

Rule 2(c) of the Dying in Harness Rules, 1974 which

provides for the appointment of a person after death of

the bread earner.

7.

Their Lordships of Hon’ble Supreme Court in

1987 (2) SCC 278, in the case of “Dr. (Mrs.) Vijaya

Manohar Arbat Vs. Kashirao Rajaram Sawai and another”

3

have held that the parents will be entitled to claim

maintenance against their daughter, whether married or

unmarried under Section 125 Cr.P.C. Their Lordships of

Hon’ble Supreme Court have held as under:-

“5. Sub-section (1) of Section 125 confers

power on the Magistrate of the First Class to

order a person to make a monthly allowance

for the maintenance of some of his close

relations like wife, children, father and

mother under certain circumstances. It has

been observed by this Court in Bhagwan

Dutt v. Kamla Devi¹ that the object of Section

125 CrPC is to provide a summaryremedy to

save

dependants

from

destitution

and

vagrancy and thus to serve a social purpose.

6. There can be no doubt that it is the

moral obligation of a son or a daughter to

maintain his or her parents. It is not

desirable that even though a son or a

daughter has sufficient means, his or her

parents would starve. Apart from any law,

the Indian society casts a duty on the

children of a person to maintain their parents

if they are not in a position to maintain

themselves. It is also their duty