IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (S/S) No. 1701 of 2018

Smt. Renu

…..Petitioner

Versus

Director General Medical Health and

family welfare and another

...Respondents

Present :

Mr. S.K. Posti, along with Mr. Ashutosh Posti, Advocates for the

petitioner.

Ms. Seema Sah, Brief Holder for the respondents.

Sharad Kumar Sharma, J.

Smt. Krishna (mother of the petitioner) was

appointed in T.B. Sanatorium, Bhawali, District Nainital. She

met with the said demise in harness on 21.08.2017. As a

consequence of the death of Smt. Krishna, the petitioner, who is

the married daughter of late Smt. Krishna had applied for

appointment under the Dying in Harness Rules, 1974. In support

of her claim for harness appointment, it is the case of the counsel

for the petitioner that she had supplied the ration card, voter I.D.

card and other documents to show that though she happens to be

married daughter, but looking to the financial condition of her

husband, the petitioner pleads that she is residing with her

parents, and even her husband too is residing with his in-laws.

2.

Another argument, which has been extended by the

learned counsel for the petitioner is that the petitioner, though she

is married, yet has been shown as a nominee in the entire service

records of late Smt. Krishna, the mother of the petitioner, and in

support thereto, the petitioner has placed reliance on the ration

card, voter I.D. card, as well as the succession certification which

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is said to have been issued in her favour by the Sub Divisional

Magistrate, Nainital.

3.

The claim of the petitioner, since was not being

considered despite of having applied within after death time on

19.09.2017, the petitioner submitted reminder on 29.12.2017

followed by various communications made by her. When no

decision was taken, the present writ petition has been filed with

the following reliefs:-

“i)

Issue writ order or direction in the nature of

Mandamus, commanding the respondents no. 2

to considered the application of the petitioner

for appointment on the post of sweeper under

the dying in harness rules.

ii)

Issue a writ order or direction in the nature of

Mandamus commanding the respondents no. 2

the Chief Superintendent, T.B. Sanatorium,

Bhawali

District

Nainital

to

give

the

appointment to petitioner on the post of

sweeper under the dying in harness rules.

iii)

Issue any other relief, which this Hon’ble Court

may deem fit and proper in the circumstances

of the case be passed in favour of the

petitioner.”

4.

The coordinate Bench of this Court had issued

notices to the respondents on 21.06.2018 and counter affidavit

was invited. The respondents have filed their counter affidavit, to

which rejoinder affidavit has been filed by the petitioner. In the

counter affidavit, the sole stand taken by the respondents was that

the candidature of the petitioner for appointment on the

compassionate ground cannot be taken into consideration,

because since she being a married daughter, she will not be

falling within the definition of “family” as defined under the

Dying in Harness Rules, 1974, as applicable in the respondents’

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department, and since she is not falling within the definition of

“family” her candidature deserves to be rejected.

5.

Based with the said arguments, learned counsel for

the petitioner has placed reliance of a judgement of Division

Bench of Hon’ble Allahabad High Court as reported 2016 1 ADJ

21 in the case of Smt. Vimla Srivastava Vs. State of U.P. and

another, wherein the Division Bench of Allahabad High Court,

while considering the impact of the Dying in Harness Rules,

1974 and the definition of “family” as given therein under th

rules of 1974, has held that the distinction which has been drawn

in grant of appointment on compassionate ground to the females

who are