# Babita Thakur v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 318
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-26
- **Case number:** Writ A No. 19776 of 2019
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babita-thakur-v-state-of-u-p-ors-49448
- **Pages:** 6

## Headnote

Rules,
1974
-
Rule
2(c)(iii)
-
Compassionate Appointment - Divorced
Daughter: Exclusion of divorced daughter from
compassionate appointment is unconstitutional
and violative of Articles 14 and 16. A daughter,
whether
married,
unmarried,
widowed
or
divorced, does not lose her status as a
dependent daughter. Divorced daughter stands
on stronger footing than widowed daughter, as
she is completely severed from her exhusband's estate except alimony. Smt. Vimla
Srivastava v. State of U.P., Writ-A No.60881 of
2015, decided on 04.12.2015 (Paras 3, 6, 7, 8,
9, 10).

B. Constitution of India - Articles 14, 15 &
16 - Gender Discrimination - Marital
Status Irrelevant: Marital status cannot
disqualify a daughter from compassionate
appointment. Discrimination based on marriage
or
its
dissolution
(divorce/widowhood)
is
arbitrary. Once "unmarried daughter" was
struck down as unconstitutional, the benefit
extends to all daughters, including divorced
daughters,
irrespective
of
subsequent
amendments. Neha Srivastava v. State of U.P.,
Special Appeal Defective No.863 of 2015,
decided on 23.12.2015; SLP (C) No.22646 of
2016 dismissed on 23.07.2019 (Paras 3, 7, 8,
9).

C. Dying-in-Harness Rules - Beneficial
Legislation - Retrospective Application of
Judicial Pronouncements: Judgment in Smt.
Vimla
Srivastava
(supra)
striking
down
"unmarried" became law of the land from
04.12.2015. State bound to apply it even before
2021 amendment incorporating "daughter".
Rejection of divorced daughter's claim post2015 but pre-amendment is illegal. (Paras 9,
11).

D. Compassionate Appointment - Object
and Scope: Intended to alleviate immediate
financial distress of family. Exclusion of divorced
daughter
defeats
the
beneficial
purpose,
especially when widowed daughter was already
included. (Paras 6, 10).

Writ Petition Allowed - Impugned Order
Quashed,
Matter
Remitted
for
Fresh
Decision within Two Months.

List of Cases Cited:

## Text

318 INDIAN LAW REPORTS ALLAHABAD SERIES
done through 'overwriting' or 'cutting', a
fact upon which this Court has pronounced
with finality. The manipulation done in any
other fashion would be open to inquiry,
strictly in accordance with law, where the
Nagar Palika Parishad would have to
establish the charge against the petitioner
by evidence led before the Inquiry Officer.

13. It is made clear that nothing said
in this order would be construed as an
expression on merits, regarding the validity
or worth of the charge, either way, and the
Inquiry Officer would be free to determine
the charge on the basis of evidence led
before him. Of course, as already said, the
issue of 'scoring out' or 'overwriting' the
petitioner's date of birth in the service book
shall not be inquired into.

14. Before parting with this matter, it
must be mentioned that it was urged by Mr.
Manas Bhargava, learned Counsel for the
Lokayukta, on instructions received, that
the impugned order being one passed
pursuant to recommendations by the
Lokayukta, cannot be questioned before
this Court, in view of the provisions of
Section 17(2) of the Uttar Pradesh
Lokayukta and Up-Lokayuktas Act, 19752,
which read :

17(2) No proceedings of the
Lokayukta or the Up-Lokayukta shall be
held bad for want of form and except on the
ground of jurisdiction, no proceedings or
decision of the Lokayukta or the UpLokayukta shall be liable to be challenged,
reviewed or quashed or called in question
in any Court.

15. This Court must remark that the
Lokayukta functions under the Act of 1975.
The reference in Section 17(2) excluding
the jurisdiction of the Court to review or
quash the order of Lokayukta or UpLokayukta,
except
on
ground
of
jurisdiction, cannot be pleaded as a bar to
this Court's jurisdiction under Article 226
of the Constitution. The reference to
'Court' or bar to the Court's jurisdiction
under Section 17(2) of the Act would
apply to Courts of ordinary jurisdiction;
not the High Court exercising its writ
jurisdiction under Article 226 of the
Constitution.

16. In the result, this Court holds that
there is no good ground to interfere with
the impugned order, but directs that the
inquiry against the petitioner be concluded
within a period of three months hence,
wherein the petitioner shall cooperate.
The petitioner, during the period of
suspension, shall be paid his subsistence
allowance regularly. In the event of delay
in
concluding
the
disciplinary
proceedings beyond the period of three
months, it would be open to the petitioner
to move this Court again, questioning his
continued suspension from service on the
ground of delay.

17. This writ petition stands disposed
of in terms of the orders aforesaid.

18. There shall be no order as to costs.
----------
(2023) 11 ILRA 318
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.10.2023
BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 19776 of 2019

Babita Thakur ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
11 All. Babita Thakur Vs. State of U.P. & Ors.
319
Counsel for the Petitioner:
Sri P.K. Upadhyay, Sri Vikram Yadav

Counsel for the Respondents:
C.S.C.

A. U.P. Recruitment of Dependants of
Government Servants Dying in Harness
Rules,
1974
-
Rule
2(c)(iii)
-
Compassionate Appointment - Divorced
Daughter: Exclusion of divorced daughter from
compassionate appointment is unconstitutional
and violative of Articles 14 and 16. A daughter,
whether
married,
unmarried,
widowed
or
divorced, does not lose her status as a
dependent daughter. Divorced daughter stands
on stronger footing than widowed daughter, as
she is completely severed from her exhusband's estate except alimony. Smt. Vimla
Srivastava v. State of U.P., Writ-A No.60881 of
2015, decided on 04.12.2015 (Paras 3, 6, 7, 8,
9, 10).

B. Constitution of India - Articles 14, 15 &
16 - Gender Discrimination - Marital
Status Irrelevant: Marital status cannot
disqualify a daughter from compassionate
appointment. Discrimination based on marriage
or
its
dissolution
(divorce/widowhood)
is
arbitrary. Once "unmarried daughter" was
struck down as unconstitutional, the benefit
extends to all daughters, including divorced
daughters,
irrespective
of
subsequent
amendments. Neha Srivastava v. State of U.P.,
Special Appeal Defective No.863 of 2015,
decided on 23.12.2015; SLP (C) No.22646 of
2016 dismissed on 23.07.2019 (Paras 3, 7, 8,
9).

C. Dying-in-Harness Rules - Beneficial
Legislation - Retrospective Application of
Judicial Pronouncements: Judgment in Smt.
Vimla
Srivastava
(supra)
striking
down
"unmarried" became law of the land from
04.12.2015. State bound to apply it even before
2021 amendment incorporating "daughter".
Rejection of divorced daughter's claim post2015 but pre-amendment is illegal. (Paras 9,
11).

D. Compassionate Appointment - Object
and Scope: Intended to alleviate immediate
financial distress of family. Exclusion of divorced
daughter
defeats
the
beneficial
purpose,
especially when widowed daughter was already
included. (Paras 6, 10).

Writ Petition Allowed - Impugned Order
Quashed,
Matter
Remitted
for
Fresh
Decision within Two Months.

List of Cases Cited:

1. Smt. Vimla Srivastava v. State of U.P., Writ-A
No.60881 of 2015, decided on 04.12.2015
(Paras 3, 6, 7, 8, 9).

2. Neha Srivastava v. State of U.P., Special
Appeal Defective No.863 of 2015, decided on
23.12.2015 (Para 3).

3. State of U.P. v. Neha Srivastava, SLP (C)
No.22646 of 2016, dismissed on 23.07.2019
(Para 3).

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri P.K. Upadhyay, learned
counsel for the petitioner and Ms. Archana
Tyagi, learned Additional Chief Standing
Counsel for the State-respondents.

2.

Petitioner's
claim
for
compassionate
appointment
has
been
rejected only on the ground that she was a
divorced daughter and divorced daughter
did not come within the definition of
unmarried daughter as stood in the relevant
rules
framed
for
compassionate
appointments namely UP Government
Servant Dying in Harness Rules, 1974
(amended from time to time).

3. The order impugned dated
12.09.2019 has been assailed on the ground
that the division bench judgment of this
Court in Writ Petition No.60881 of 2015
(Smt. Vimla Srivastava v. State of U.P. &
anr.) decided on 04.12.2015, rendered
words
and
expressions
"unmarried
320 INDIAN LAW REPORTS ALLAHABAD SERIES
daughter" as totally unconstitutional being
discriminatory and arbitrary and, therefore,
violative of Article 14 read with Article 16
of the Constitution of India. This judgment
was later on followed in Special Appeal
Defective
No.863
of
2015
(Neha
Srivastava vs. State of UP & anr) decided
on 23.12.2015 and further special leave
petition against the judgment of Neha
Srivastava came to be dismissed (SLP (C)
No.22646 of 2016) on 23.07.2019.

4. Per contra, defending the order
impugned, it is argued by Ms. Archana
Tyagi, learned Additional Chief Counsel
that the Court addressed the issue of claim
qua 'married daughter' and 'unmarried
daughter' and not the 'divorced daughter' as
this expression not included in the rules.
She further submits that the Dying in
Harness Rules, 1974 came to be amended
only in the year 2021 and now word
'daughter' is incorporated under 2c(iii) of
the said rules. She submits that the
amendments shall not have retrospective
effect and now here onwards only the
'divorced daughter', if at all, can be
considered.

5. In rejoinder, learned Advocate
appearing for the petitioner submits that
Dying in Harness Rules, 1979 is a piece of
beneficial legislation and, therefore, it is to
be interpreted in light of the law laid down
by division bench of this Court in the case
of Smt. Vimla Srivastava (supra) followed
in Smt. Neha Srivastava (supra).

6. Having heard learned counsel for
the respective parties and the judgments
cited before this Court, what I have come to
notice is that earlier the provision 2c(iii)
carried
the
words
and
expressions
'unmarried daughter', 'married daughter',
'widowed
daughter'
and
'widowed
daughters-in-law'. Thus, there was no
mention of 'divorced daughter'. The very
intendment
behind
the
legislation
to
incorporate the 'widowed daughter' in the
amended provision has been to treat her
back as member of the family of dependent
and therefore exclusion of words and
expressions 'divorced daughter' does not
appeal to reason. Whether the daughter has
gone widow on account of death of her
husband or has been divorced, they stand
on a same footing rather, it would be more
appropriate to say that divorced daughter
stands on a better footing because widowed
daughter may get share in the properties of
the deceased husband whereas the divorced
daughter is completely divorced from
everything belong to her ex-husband
including his estate except the permanent
alimony that she may get. This Court in
Vimla Srivastava's case while considered
this aspect of the matter that the use of
words and expressions 'unmarried daughter'
to the exclusion of 'married daughter' was
not a constitutionally sound provision as
the married daughter stood discriminated
against. The Court made note of the
arguments :-

"The basic rationale and the
foundation for granting compassionate
appointment is thus the financial need of
the family of a deceased government
servant who has died in harness and it is
with a view to alleviate financial distress
that compassionate appointment is granted.

The submission which has been
urged on behalf of the petitioners in
challenging Rule 2 (c) (iii), insofar as it
confines the zone of eligibility only to
unmarried daughters, is two fold. Firstly, it
has been submitted that in matters of public
employment,
marital
status
cannot
disqualify
an
applicant
and
any
discrimination on the ground of marital
11 All. Babita Thakur Vs. State of U.P. & Ors.
321
status would be violative of Articles 14 and
15 of the Constitution. Secondly, it has been
urged that there can be no discrimination
between a son and a daughter in the grant
of compassionate appointment and any
discrimination on the ground of gender
violates Article 15 of the Constitution. "

7. The principle upon which the word
and expression 'unmarried daughter' was
held to be unconstitutional was that it hit
the very basis for which Article 14 &
Article 16 stood. Relevant part of the
judgment in the case of Smt. Vimla
Srivastava
(supra)
is
reproduced
hereinunder:

"The
principles
underlying
Articles 14 and 15 of the Constitution have
an important bearing on gender identity. In
C.B. Muthamma vs. Union of India3, the
Supreme Court considered the legality of a
rule in the Indian Foreign Service (Conduct
and Discipline) Rules under which a
woman member of the service was required
to obtain the permission of the Government
before her marriage was solemnized and
could be required to resign from service
after her marriage, if the Government was
satisfied that her family and domestic
commitments are likely to come in the way
of the due and efficient discharge of her
duties as a member of the service. The
Supreme Court held that "If a married man
has a right, a married woman, other things
being equal, stands on no worse footing".
In the meantime the Central Government
had indicated that the rule was being
reconsidered and its deletion was being
gazetted. "

8. The Court further held that
"assumption
that
after
marriage,
a
daughter cannot be said to be a member of
the family of her father or that she ceases
to be dependent on her father irrespective
of
social
circumstances
cannot
be
countenanced." The Court then referred to
Division Bench judgment in Isha Tyagi vs.
State of UP & ors passed in Writ-C
No.41279 of 2014 wherein it was held that
"It would be anachronistic to discriminate
against married daughters by confining the
benefit of the horizontal reservation in this
case only to sons (and their sons) and to
unmarried daughters. If the marital status
of a son does not make any difference in
law to his entitlement or to his eligibility as
a descendant, equally in our view, the
marital status of a daughter should in terms
of constitutional values make no difference.
The notion that a married daughter ceases
to be a part of the family of her parents
upon her marriage must undergo a rethink
in contemporary times. The law cannot
make an assumption that married sons
alone continue to be members of the family
of their parents, and that a married
daughter ceases to be a member of the
family of her parents. Such an assumption
is constitutionally impermissible because it
is an invidious basis to discriminate
against married daughters and their
children. A benefit which this social welfare
measure grants to a son of a freedom
fighter, irrespective of marital status,
cannot be denied to a married daughter of
a freedom fighter. Dealing with the aspect
of the marriage, the Division Bench held
that "Marriage does not have and should
not have a proximate nexus with identity.
The identity of a woman as a woman
continues to subsist even after and
notwithstanding her marital relationship.
The time has, therefore, come for the Court
to affirmatively emphasise that it is not
open to the State, if it has to act in
conformity with the fundamental principle
of equality which is embodied in Articles 14
and 15 of the Constitution, to discriminate
322 INDIAN LAW REPORTS ALLAHABAD SERIES
against married daughters by depriving
them of the benefit of a horizontal
reservation, which is made available to a
son irrespective of his marital status." Then
vide paragraph 28, the Court held rule 2(c)
to be unconstitutional to the extent it
excluded 'married women' and finally
struck
down
the
word
'unmarried'.
Paragraph 28 is reproduced hereinunder:

"28. We, accordingly, strike down
the word 'unmarried' in Rule 2(c)(iii) of the
Dying-in-Harness Rues."

9. This above judgment was delivered
on 04.12.2015 and was followed in Neha
Srivastava (supra) which was decided on
23.12.2015 and against which special leave
petition was dismissed on 23.07.2019, i.e.
prior to 12.09.2019 when the decision was
taken by the authority rejecting the claim of
the present petitioner. Once the judgment
was pronounced by this Court holding
unmarried daughter as only category of
dependent daughter of the deceased for the
purposes of compassionate appointment
under the dying in harness rules to be
unconstitutional, it became law of the land
and
the
State
Government
was
to
immediately act upon the same. The Court
has dealt with the words and expression
'daughter' and so for the reasons that
have been shown for holding the words
and expression 'unmarried daughter' to
be unconstitutional would equally apply
to the 'divorced daughter' and 'widowed
daughter'. The State in its wisdom
correctly now has incorporated the
word 'daughter'.

10. Thus a daughter does not lose
her identity and status as daughter of
her parents for marriage or subsequent
dissolution of marriage whether by
mutual consent or divorce. A daughter
would remain a daughter of her parents
whether married, unmarried, divorced
or widowed. Further, I hold that a
divorced daughter holds a better claim
to
be
offered
compassionate
appointment than a widowed daughter
as such a daughter falls back upon her
parents for survival.

11. In the circumstances, therefore,
I am not able to sustain the order
impugned
whereby
the
petitioner's
claim has come to be rejected only on
the ground that she was a divorced
daughter.
A
daughter
has
to
be
considered
for
the
purposes
of
compassionate
appointment
of
deceased employee whether married
or unmarried, widowed or divorced,
in light of the judgment of the case
of Smt. Vimla Srivastava (supra)
and
whether
amendment
or
no
amendment
by
the
State
Government, petitioner's claim for
compassionate appointment should
not have been rejected on the ground
it has been rejected.

12.

Accordingly,
the
order
impugned dated 12.09.2019 passed by
the
Additional
District
Magistrate
(Finance
and
Revenue),
Bijnor
is
hereby quashed. Matter is remitted to be
decided
afresh
qua
claim
of
the
petitioner for compassionate appointment
in light of the discussions and observations
made hereinabove.

13. The appropriate order shall be
passed within a period of two months from
the date of presentation of certified copy of
this order and if petitioner is found eligible
for compassionate appointment, the same
shall be given to her within next thirty days'
time.
11 All. Shiv Kumar Bajpai Vs. U.P.S.R.T.C. & Ors.
323

14.

With
the
aforesaid
observations and directions, this petition
stands allowed.
----------
(2023) 11 ILRA 323
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.11.2023
BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ A No. 25057 of 2008

Shiv Kumar Bajpai ...Petitioner
Versus
U.P.S.R.T.C. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bhanu Bhushan Jauhari, Sri Kuldeep
Singh, Sri Sachindra Dwivedi

Counsel for the Respondents:
Sri A.K. Saxena, S.C.

Service Law - Departmental Proceedings
- Negligence - Motor Accident Claims
Tribunal (M.A.C.T.) Award - Effect on
Disciplinary Action - Criminal Acquittal -
Estoppel - Indian Evidence Act, 1872,
Sections 17 & 31 - Motor Vehicles Act,
1988 - Section 168 - Indian Penal Code,
1860 - Sections 279 & 304-A.
Petitioner, a bus driver with U.P.S.R.T.C., faced
departmental proceedings for alleged negligence
in a 1995 accident. Despite an inquiry report
finding no guilt, the Regional Manager imposed
punishment based on an M.A.C.T. award
disbelieving
petitioner's
St.ment,
though
U.P.S.R.T.C.'s written St.ment before M.A.C.T.
supported petitioner's non-negligence. Petitioner
was acquitted in a related criminal case under
Sections 279, 304-A I.P.C. Held: M.A.C.T.
findings are limited to fixing compensation
liability and cannot solely justify departmental
punishment.
U.P.S.R.T.C.'s
admission
of
petitioner's
non-negligence
in
M.A.C.T.
proceedings
operates
as
estoppel
under
Sections 17, 31 of the Indian Evidence Act,
1872.
Criminal
acquittal,
indicating
no
negligence, outweighs M.A.C.T. award for
disciplinary
purposes.
Impugned
orders
quashed; deducted amount to be refunded with
6% interest.

Writ petition allowed.

Case Law Discussed: None specifically cited.

(Delivered by Hon'ble Kshitij Shailendra,
J.)

1. Third supplementary affidavit filed
today is taken on record.

2. Heard Shri Bhanu Bhushan Jauhari,
learned counsel for the petitioner, Shri A.K.
Saxena, learned counsel for the respondents
and perused the record.

3. The petitioner was Driver of a Bus
run by the Uttar Pradesh State Road
Transport Corporation (hereinafter referred
to as 'the U.P.S.R.T.C.'). An accident took
place
on
15.07.1995
and,
raising
allegations against the petitioner that he
was
negligent
in
driving
the
bus,
departmental proceedings were initiated
against him. At the same time, a Motor
Accident Claim Petition, being Case No.
710 of 1995, was filed by the dependants of
the deceased victim against U.P.S.R.T.C.
before Motor Accident Claims Tribunal
(hereinafter referred to as 'the M.A.C.T.').
An inquiry report was submitted by the
inquiry officer of U.P.S.R.T.C. in the
departmental proceedings recording no
established guilt of the petitioner, however,
while awarding punishment to him in terms
of deduction of a sum of Rs. 2,11,000/-
from his payables and stoppage of two
increments, the Regional Manager of
U.P.S.R.T.C. placed reliance upon the
judgment/award passed by the M.A.C.T. in
the
aforesaid
compensation
case,
particularly, the statement of the petitioner