# Gupta v. State of U.P. & others)

- **Citation:** (2016) 1 ILRA 115
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-12-04
- **Case number:** Writ-C No. 14853 of 2015 and Writ-C No. 20204 of 2015
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gupta-v-state-of-u-p-others-43418
- **Pages:** 10

## Headnote

Rules-1974-Rule
2(c)(iii)-definition
of
"Family"-ward unmarried daughter-being
indiscriminately violate by Art.-14 and 15 of
Constitution-even married daughter is the
daughter
of
deceased
employee-hence
word 'married' struck down-consequential
follow up directions given.
Held: Para-27 & 28

## Text

1 All. Smt. Vimla Srivastava Vs. State of U.P. & Anr.
115
denying the principal's grade to the
petitioner in spite of the well settled law
on this issue. He has also ignored the
order of the Director dated 25th August,
2015 extracted herein above wherein a
clear direction has been issued for
payment of principal's grade to the
officiating principal.
31. In the counter affidavit it has not
been denied by the District Inspector of
Schools that the approval granted by him
dated 30th November, 2007 has not been
recalled or cancelled. Thus, in my view the
petitioner is entitled for principal's grade
from the date of assuming the charge of the
office of officiating principal.
32. Pertinently, now the Director of
Education (Secondary) on 25th August,
2015 has issued a direction for the
purpose of principal's grade to ad
hoc/officiating principal. The Director has
also warned the concerned authorities that
if direction is not complied it shall be
treated as misconduct and they will be
subjected to disciplinary proceedings.
33. In view of the recent order of the
Director, there is no need to send the
matter again to the District Inspector of
Schools, who appears to adamant to reject
the claim of the petitioner.
34. Accordingly, the writ petition is
allowed. The District Inspector of Schools
is directed to pay petitioner's salary in
principal's grade within two months from
the date of communication of this order.
35. The petitioner shall file an
affidavit that payment received by her
shall abide the result of writ petition,
Writ-A No.43095 of 2014 (Smt. Savita
Gupta v. State of U.P. & others).
36. No order as to costs.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE YASHWANT VARMA, J.
Writ-C No. 60881 of 2015.
 with
Writ-C No. 14853 of 2015 and Writ-C No.
20204 of 2015
Smt. Vimla Srivastava
 ...Petitioner
Versus
State of U.P. & Anr.
...Respondents
Counsel for the Petitioner:
Santosh Kumar Srivastava, Nitin Kumar
Rai, Pavan Kumar Singh
Counsel for the Respondents:
C.S.C.
Uttar Pradesh Recruitment of Dependents
of Government Servant Dying-in-Harness
Rules-1974-Rule
2(c)(iii)-definition
of
"Family"-ward unmarried daughter-being
indiscriminately violate by Art.-14 and 15 of
Constitution-even married daughter is the
daughter
of
deceased
employee-hence
word 'married' struck down-consequential
follow up directions given.
Held: Para-27 & 28
27. In conclusion, we hold that the
exclusion of married daughters from the
ambit of the expression "family" in Rule
2 (c) of the Dying-in-Harness Rules is
illegal
and
unconstitutional,
being
violative of Articles 14 and 15 of the
Constitution.
28. We, accordingly, strike down the
word 'unmarried' in Rule 2 (c) (iii) of the
Dying-in-Harness Rules.
Case Law discussed:
116
 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ-C No. 41279 of 2014; AIR 1979 SC 1868;
AIR 1987 SC 1100; (1999) 2 SCC 228; 1996 2
SCC 380; (2003) 6 SCC 277; (2014) 5 SCC
438; 2005 (104) FLR 271; W.P. No. 16153
2015, decided on 9 June 2015; W.P. No.
33967 (W) of 2013, decided on 19 March
2014; W.P. No. 49766 of 2015.
(Delivered by Hon'ble Dr. D.Y.
Chandrachud, C.J.)
1.
The Uttar Pradesh Recruitment of
Dependents of Government Servants Dyingin-Harness Rules, 19741 have been framed
under the proviso to Article 309 of the
Constitution and regulate the grant of
compassionate appointment to the members
of the family of a government servant who
dies in harness. The Rules define the
expression "family" to include, among
others, "unmarried daughters and unmarried
adopted daughters". The Rules also bring
sons and adopted sons within the ambit of a
family. The eligibility of a son or adopted
son is not conditioned by marital status. The
challenge in these proceedings is to the
stipulation that only an unmarried daughter
falls within the definition of the expression
"family". As a consequence of the condition,
a married daughter ceases to fall within the
family of a deceased government servant for
the purpose of seeking compassionate
appointment.
2. Rule 2 (c) of the Dying-inHarness Rules defines the expression
"family" in the following terms:
"2(c) "family" shall include the
following relations of the deceased
Government servant:
(i) Wife or husband;
(ii) Sons/adopted sons;
(iii) Unmarried daughters, unmarried
adopted daughters, widowed daughters
and widowed daughters-in-law;
(iv) Unmarried brothers, unmarried
sisters and widowed mother dependent on
the deceased Government servant, if the
deceased
Government
servant
was
unmarried;
(v) aforementioned relations of such
missing Government servant who has
been declared as "dead" by the competent
Court;
Provided that if a person belonging
to any of the above mentioned relations of
the deceased Government servant is not
available or is found to be physically and
mentally unfit and thus ineligible for
employment in Government service, then
only in such situation the word "family"
shall also include the grandsons and the
unmarried granddaughters of the deceased
Government servant dependent on him."
3.
In exploring the nature of the
constitutional challenge which has been
addressed in these proceedings, it would at
the outset be necessary to dwell briefly on
the nature and purpose of compassionate
appointment. The object and purpose of
compassionate appointment is to provide
ameliorative relief to the family of a
government servant who has died in harness.
Compassionate appointment is an exception
to the principle that there must be an equality
of
opportunity
in
matters
of
public
employment under Article 16 of the
Constitution.
Equality
of
opportunity
postulates a level playing field where all
eligible persons are entitled to compete in an
effort to secure public employment. The
basis of the exception that is carved out by
the Dying-in-Harness Rules is that the death
of a wage earner while in the service of the
State imposes severe financial hardship on
the family faced with an untimely death.
Compassionate appointment is intended to
provide immediate financial support to such
a family by stipulating that upon the death of
1 All. Smt. Vimla Srivastava Vs. State of U.P. & Anr.
117
its wage earner while in harness as a
government servant, another member of the
family would be granted appointment.
Compassionate
appointment
is
not
a
reservation of a post in public employment
but is in the nature of an enabling provision
under which a member of the family of a
deceased government servant who has died
while in harness can seek appointment based
on financial dependency and need.
4.
Rule 5 of the Dying-in-Harness
Rules provides that such an appointment is
contemplated to be given to a member of the
family of a deceased government servant who
has died in harness where the spouse of the
government servant is not already employed
with the Central or the State Governments or a
Corporation owned by them. Moreover, a
member of the family who is not already
employed
with
the
Central
or
State
Governments or their Corporations can be
given suitable employment in government
service in relaxation of the normal recruitment
rules. Such an appointment can be granted if
the person (i) fulfills the educational
qualifications prescribed for the post; (ii) is
otherwise qualified for government service;
and (iii) makes an application for employment
within five years from the date of the death of
the government servant. The rationale for
imposing the requirement of the application
being made within five years is that the nexus
between the grant of employment and the
need of the family is preserved. That is
because after a lapse of time the sense of need
or dependency may cease to exist both
financially and otherwise. However, Rule 5
enables the time limit to be dispensed with or
relaxed for the purpose of dealing with a case
in a just and equitable manner where undue
hardship is shown. Where compassionate
appointment is provided under Rule 5, there is
an obligation under the rule for the person
appointed to maintain the other members of
the family of the deceased government
servant who were dependent on him/her
immediately before the death occurred and
who are unable to maintain themselves. When
the person appointed neglects or refuses to
maintain a person whom he or she is liable to
maintain, the services are liable to be
terminated under the Conduct, Discipline and
Appeal Rules.
5.
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.
6.
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 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. A counter affidavit has been filed
on behalf of the State in these proceedings
in which, it has been asserted that:
"After
marriage,
the
daughter
becomes the family member of her
husband and the responsibility of her
maintenance solely lies upon her husband,
therefore, in such circumstance there is no
justification of giving employment to the
118
 INDIAN LAW REPORTS ALLAHABAD SERIES
married
daughter
of
the
deceased
employee as the dependent of deceased
employee.
That, it is also relevant to mention here
that the employment as a dependent of
deceased is a compassionate appointment
which is not a matter of right. It is further
submitted that the married daughter is not
covered by definition of "family", therefore,
she cannot be considered eligible for giving
the compassionate appointment. It is further
submitted that under the Hindu Law, a
married daughter cannot be considered as
dependent of her father or dependent of joint
Hindu family. After the marriage, her
husband is not only her guardian but he is
under legal obligation to maintain her. Under
the Hindu Law, after the marriage, the
daughter even does not remain member of
the family of her father and she becomes
member of her in laws family."
8. Moreover, it has been submitted
that a married daughter is not considered
as a dependent of her deceased father and
is
not
legally
entitled
to
get
compassionate appointment.
9. In support of the submissions which
have been urged in the counter affidavit,
learned Standing Counsel submits that Rule
2 (c) has made no discrimination on grounds
of gender. The submission is that the purpose
of Rule 2 (c) is to enable the State to grant
compassionate appointment to a member of
the family who was dependent on the
deceased government servant. When a
daughter is married, it is asserted, the
element of dependency on the deceased
government servant ceases to exist and the
reason for the exclusion is not gender but the
absence of dependency.
10. While assessing the rival
submissions, it must be noted at the outset
that the definition of the expression
"family" in Rule 2 (c) incorporates the
categories
of
heirs
of
a
deceased
government servant. Among them are the
wife or husband, sons and adopted sons,
unmarried daughters, unmarried adopted
daughters,
widowed
daughters
and
widowed daughters-in-law. Clause (ii) of
Rule 2 (c) brings a son as well as an
adopted son within the purview of the
expression
"family"
irrespective
of
marital status. A son who is married
continues to be within the ambit of the
expression "family" for the purpose of
Rule 2 (c). But by the stroke of a
legislative definition, a daughter who is
married is excluded from the scope and
purview of the family of a deceased
government servant unless she falls
within the category of a widowed
daughter. The invidious discrimination
that is inherent in Rule 2 (c) lies in the
fact that a daughter by reason of her
marriage is excluded from the ambit of
the expression "family". Her exclusion
operates by reason of marriage and,
whether or not she was at the time of the
death of the deceased government servant
dependent on him. Marriage does not
exclude a son from the ambit of the
expression
"family".
But
marriage
excludes a daughter. This is invidious. A
married daughter who has separated after
marriage and may have been dependent
on the deceased would as a result of this
discrimination stand excluded. A divorced
daughter would similarly stand excluded.
Even if she is dependent on her father, she
would not be eligible for compassionate
appointment only because of the fact that
she is not "unmarried". The only basis of
the exclusion is marriage and but for her
marriage, a daughter would not be
excluded from the definition of the
expression "family".
1 All. Smt. Vimla Srivastava Vs. State of U.P. & Anr.
119
11.
The issue before the Court is
whether marriage is a social circumstance
which is relevant in defining the ambit of the
expression "family" and whether the fact that
a daughter is married can constitutionally be
a permissible ground to deny her the benefit
of compassionate appointment. The matter
can be looked at from a variety of
perspectives. Implicit in the definition which
has been adopted by the state in Rule 2 (c) is
an assumption that while a son continues to
be a member of the family and that upon
marriage, he does not cease to be a part of the
family of his father, a daughter upon
marriage ceases to be a part of the family of
her
father.
It
is
discriminatory
and
constitutionally impermissible for the State
to make that assumption and to use marriage
as a rationale for practicing an act of hostile
discrimination by denying benefits to a
daughter when equivalent benefits are
granted to a son in terms of compassionate
appointment. Marriage does not determine
the continuance of the relationship of a child,
whether a son or a daughter, with the parents.
A son continues to be a son both before and
after marriage. A daughter continues to be a
daughter. This relationship is not effaced
either in fact or in law upon marriage.
Marriage does not bring about a severance of
the relationship between a father and mother
and their son or between parents and their
daughter. These relationships are not
governed or defined by marital status. The
State has based its defence in its reply and
the foundation of the exclusion on a
paternalistic notion of the role and status of a
woman. These patriarchal notions must
answer the test of the guarantee of equality
under Article 14 and must be held
answerable to the recognition of gender
identity under Article 15.
12. The stand which has been taken
by the state in the counter affidavit
proceeds on a paternalistic notion of the
position of a woman in our society and
particularly of the position of a daughter
after marriage. The affidavit postulates
that after marriage, a daughter becomes a
member of the family of her husband and
the responsibility for her maintenance
solely lies upon her husband. The second
basis which has been indicated in the
affidavit is that in Hindu Law, a married
daughter
cannot
be
considered
as
dependent of her father or a dependent of
a joint Hindu family. The 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. Our society is
governed by constitutional principles.
Marriage cannot be regarded as a
justifiable ground to define and exclude
from who constitutes a member of the
family when the state has adopted a social
welfare policy which is grounded on
dependency. The test in matters of
compassionate appointment is a test of
dependency within defined relationships.
There are situations where a son of the
deceased government servant may not be
in need of compassionate appointment
because the economic and financial
position of the family of the deceased are
not such as to require the grant of
compassionate
appointment
on
a
preferential basis. But the dependency or
a lack of dependency is a matter which is
not determined a priori on the basis of
whether or not the son is married.
Similarly, whether or not a daughter of a
deceased
should
be
granted
compassionate appointment has to be
defined with reference to whether, on a
consideration of all relevant facts and
circumstances, she was dependent on the
deceased government servant. Excluding
120
 INDIAN LAW REPORTS ALLAHABAD SERIES
daughters purely on the
ground of
marriage
would
constitute
an
impermissible
discrimination
and
be
violative of Articles 14 and 15 of the
Constitution.
13. A variety of situations can be
envisaged where the application of the
rule
would
be
invidious
and
discriminatory. The deceased government
servant may have only surviving married
daughters to look after the widowed
parent - father or mother. The daughters
may be the only persons to look after a
family in distress after the death of the
bread earner. Yet, under the rule, no
daughter
can
seek
compassionate
appointment only because she is married.
The family of the deceased employee will
not be able to tide over the financial crisis
from the untimely death of its wage
earner who has died in harness. The
purpose and spirit underlying the grant of
compassionate
appointment
stands
defeated. In a given situation, even though
the deceased government employee leaves
behind a surviving son, he may not in fact
be looking after the welfare of the
surviving parents. Only a daughter may
be the source of solace - emotional and
financial, in certain cases. These are not
isolated situations but social realities in
India. A surviving son may have left the
village, town or state in search of
employment in a metropolitan city. The
daughter may be the one to care for a
surviving parent. Yet the rule deprives the
daughter of compassionate appointment
only because she is married. Our law must
evolve
in
a
robust
manner
to
accommodate social contexts. The grant
of compassionate appointment is not just
a social welfare benefit which is allowed
to the person who is granted employment.
The purpose of the benefit is to enable the
family of a deceased government servant,
who dies in harness, to be supported by
the grant of compassionate appointment
to a member of the family. Excluding a
married daughter from the ambit of the
family may well defeat the object of the
social welfare benefit.
14. The living tree - the Constitution
- on which the law derives legitimacy is a
liberal
instrument
for
realising
fundamental human freedoms. The law
and the Constitution must account for
multiple identities. Individuals - men and
women - have multiple identities : as a
worker in the work place; as a child,
parent and spouse; identities based on
preferences and orientation; those based
on language, religion and culture. But
from a constitutional perspective, they are
protected
and
subsumed
in
the
overarching privileges of citizenship and
in the guarantee of individual freedoms.
15.
In the judgment of this Court in
Isha Tyagi vs. State of U.P.2, a Division
Bench considered the legality of a condition
which was imposed by the State Government
while providing horizontal reservation to
descendants of freedom fighters. The
condition which was imposed by the State
excluded the children of the daughter of a
freedom fighter from seeking admission to
medical colleges in the State under an
affirmative action programme. Holding this
to be unconstitutional, the Division Bench
held as follows:
"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
1 All. Smt. Vimla Srivastava Vs. State of U.P. & Anr.
121
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."
16. Dealing with the aspect of
marriage, the Division Bench held as
follows:
"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 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."
17. 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.
18. In Vijaya Manohar Arbat vs.
Kashirao Rajaram Sawai4, the Supreme
Court held in the context of the provisions
of Section 125 of the Code of Criminal
Procedure 1973 that "a daughter after her
marriage does not cease to be a daughter
of the father or mother".
19. The same principle was applied
in Githa Hariharan vs. Reserve Bank of
India5 while defining the ambit of the
expression "the father, and after him, the
mother" in Section 6(a) of the Hindu
Succession Act, 1956. The Supreme
Court observed that if the word 'after' was
read to mean that a mother would be
disqualified from acting as a guardian of a
minor during the lifetime of the father,
this
would
run
counter
to
the
constitutional mandate of gender equality
and will lead to an impermissible
differentiation
between
males
and
females. Interpreting the word 'after', the
Supreme Court held that it does not
necessarily mean after the death of the
122
 INDIAN LAW REPORTS ALLAHABAD SERIES
father but would mean in the absence of,
whether temporary or otherwise or in a
situation of the apathy of the father or his
inability to maintain the child.
20. In Savita Samvedi vs. Union of
India6, the Supreme Court considered the
validity of a circular of the Railway Board
by which a railway servant who is an
allottee of service accommodation was
entitled to nominate, while retiring from
service, a son or unmarried daughter
among other persons for allotment of the
accommodation on out-of-turn basis.
Holding that the circular (insofar as it
precluded the nomination of a married
daughter for allotment of accommodation)
violated Article 14, the Supreme Court
observed as follows:
"... If he has only one married
daughter, who is a railway employee, and
none of his other children are, then his
choice is and has to be limited to that
railway employee married daughter. He
should be in an unfettered position to
nominate that daughter for regularization
of railway accommodation. It is only in
the case of more than one children in
Railway service that he may have to
exercise a choice and we see no reason
why the choice be not left with the
retiring official's judgment on the point
and be not respected by the railway
authorities irrespective of the gender of
the child. There is no occasion for the
railways to be regulating or bludgeoning
the choice in favour of the son when
existing and able to maintain his parents.
The Railway Ministry's Circular in that
regard appears thus to us to be wholly
unfair, gender biased and unreasonable,
liable to be struck down under Article 14
of the Constitution. The eligibility of a
married daughter must be placed on a par
with an unmarried daughter (for she must
have been once in that state), so as to
claim the benefit of the earlier part of the
Circular, referred to in its first paragraph,
above-quoted."
21. In Air India Cabin Crew Assn.
vs. Yeshaswinee Merchant7, the Supreme
Court dealt with the prohibition under
Article 15(2) on discrimination on the
ground only of sex. Interpreting the
provisions of Articles 15 and 16, the
Supreme Court held that the constitutional
mandate would be infringed where a
woman would have received the same
treatment as a man but for her sex.
22. In National Legal Services
Authority vs. Union of India8, the
Supreme Court recognized that gender
identity, is an integral part of sex within
the meaning of Articles 15 and 16 and no
citizen can be discriminated on the ground
of gender. The Supreme Court observed
as follows:
"We,
therefore,
conclude
that
discrimination on the basis of sexual
orientation or gender identity includes any
discrimination, exclusion, restriction or
preference, which has the effect of
nullifying or transposing equality by the
law or the equal protection of laws
guaranteed under our Constitution, and
hence we are inclined to give various
directions to safeguard the constitutional
rights of the members of the TG
community."
23. Specifically in the context of
compassionate appointments various High
Courts have taken the view that a woman
who is married cannot be denied entry
into
service
on
compassionate
appointment merely on the ground of
1 All. Smt. Vimla Srivastava Vs. State of U.P. & Anr.
123
marriage. This view was taken by a
learned Single Judge of the Karnataka
High Court in Manjula vs. State of
Karnataka9. The same view has been
adopted by a Division Bench of the
Bombay High Court in Smt. Ranjana
Murlidhar Anerao vs. The State of
Maharashtra10 where it was held that the
exclusion of a married daughter for the
grant of a retail kerosene license on the
death of the license holder was not
justifiable. The Division Bench of the
Bombay High Court held as follows:
"This
exclusion
of
a
married
daughter does not appear to be based on
any logic or other justifiable criteria.
Marriage of a daughter who is otherwise a
legal representative of a license holder
cannot be held to her disadvantage in the
matter of seeking transfer of license in her
name on the death of the license holder.
Under Article 19(1)(g) of the Constitution
of India the right of a citizen to carry on
any trade or business is preserved. Under
Article 19(6) reasonable restrictions with
regard
to
professional
or
technical
qualifications necessary for carrying on
any trade or business could be imposed.
Similarly,
gender
discrimination
is
prohibited
by
Article
15
of
the
Constitution. The exclusion of a married
daughter from the purview of expression
"family" in the Licensing Order of 1979 is
not only violative of Article 15 but the
same also infringes the right guaranteed
by Article 19(1)(g) of the Constitution."
24. The same view has been adopted
by a learned Single Judge of the Madras
High Court in S Kavitha vs. The District
Collector11. A learned Single Judge of
the Kolkata High Court in Purnima Das
vs. The State of West Bengal12 has held
that while appointment on compassionate
ground cannot be claimed as a matter of
right, at the same time, it was not open to
the State to adopt a discriminatory policy
by excluding a married daughter from the
ambit of compassionate appointment.
25. We are in respectful agreement
with the view which has been expressed
on the subject by diverse judgments of the
High Courts to which we have made
reference above.
26. During the course of submissions,
our attention was also drawn to the judgment
rendered by a learned Single Judge of this
Court in Mudita vs. State of U.P.13. The
learned Single Judge while proceeding to deal
with an identical issue of the right of a married
daughter to be considered under the Dying-inHarness Rules observed that a married
daughter is a part of the family of her husband
and could not therefore be expected to
continue to provide for the family of the
deceased government servant. The judgment
proceeds on the premise that marriage severs
all relationships that the daughter may have
had with her parents. In any case it shuts out
the consideration of the claim of the married
daughter without any enquiry on the issue of
dependency. In the view that we have taken
we are unable to accept or affirm the
reasoning of the learned Single Judge and are
constrained to hold that Mudita does not lay
down the correct position of the law.
27.
In conclusion, we hold that the
exclusion of married daughters from the
ambit of the expression "family" in Rule 2
(c) of the Dying-in-Harness Rules is illegal
and unconstitutional, being violative of
Articles 14 and 15 of the Constitution.
28. We, accordingly, strike down the
word 'unmarried' in Rule 2 (c) (iii) of the
Dying-in-Harness Rules.
124
 INDIAN LAW REPORTS ALLAHABAD SERIES
29.
In consequence, we direct that the
claim of the petitioners for compassionate
appointment shall be reconsidered. We clarify
that the competent authority would be at liberty
to consider the claim for compassionate
appointment on the basis of all the relevant
facts and circumstances and the petitioners
shall not be excluded from consideration only
on the ground of their marital status.
30. The writ petitions shall,
accordingly, stand allowed. There shall be
no order as to costs.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.11.2015
BEFORE
THE HON'BLE PANKAJ MITHAL, J.
Writ-C No. 60941 of 2015
Smt. Kusum Yadav & Anr. ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Shiv Babu Dubey
Counsel for the Respondents:
C.S.C., Kaushalendra Kumar
Constitution of India, Art.-226-Protection to
married life-petitioner illegally detained by
Petitioner No. 2-against her will-forced to
sign on writ petition-marriage if found
nullity-petitioner is free to go on place of
her choice-petition dismissed with cost of
Rs. 25000/-.
Held: Para-9, 10 & 11
9. The demeanor of petitioner no. 1 in
making the above statement strengthens
the belief of the Court at her statement is
true and correct and that she has been
pressurised to sign and file this petition. The
filing of this petition on her behalf is not her
free and independent act.
10.
In view of the statement of the
petitioner no. 1 given before this Court, it is
apparent thatpetitioner no. 2 had kept
petitioner no. 1 in illegal detention and there
is no marriage between the petitioners with
the free will of both of them.
11. Accordingly, the marriage as alleged
in the petition of the petitioners if any is
declared to be a nullity. The petitioner
no. 1 is permitted to go with her parents
to her home.
(Delivered by Hon'ble Pankaj Mithal, J.)
1.
This is a petition under Article
226 of the constitution of India by two
petitioners claiming protection to their
married life on the ground that they are
both majors and have married of their
own free will, but their life is being
disturbed by the respondents.
2. On the first date when the petition was
taken up, learned Standing Counsel on the
basis of the instructions received by him had
informed the Court that a First Information
Report/N.C.R. has been lodged against
petitioner no. 2 under Section 498 IPC.
3. Learned counsel for the petitioners
was accordingly directed to file an affidavit
of the petitioner no. 2 clarifying his marital
status at the time of the alleged marriage with
the petitioner no. 1.
4.

Accordingly,
affidavit
of
petitioner no. 2 was filed stating he had
married petitioner no. 1 and he was not
married to any one earlier.
5. Sri Kaushlendra Kumar, learned
counsel who had put in appearance on
behalf of respondent no. 5, had stated that
the petitioner no. 1 is in illegal detention
of petitioner no. 2. She had not married