# Km. Ruby Mausoof v. State Of U.P. & Ors

- **Citation:** (2016) 5 ILRA 2035
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-11
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-ruby-mausoof-v-state-of-u-p-ors-43914
- **Pages:** 6

## Headnote

Service Law- Compassionate appointment - Married daughter - Rule 2(c)(iii) - U.P. Recruitment of
Dependents of Government Servants Dying-In-Harness Rules 1974 - Definition of family - Word
"unmarried" - Ultra vires - Unconstitutional - Articles 14 and 15 of the Constitution of India - Gender
discrimination - Dependency - Impugned order set aside - Matter remitted - Writ petition allowed.

The petitioner's father was a constable in Civil office and was posted in District Ghazipur, He died in harness
on 28.8.1999. The petitioner made an application for her appointment on compassionate ground. When no
decision was taken on the application of petitioner, she preferred Writ Petition No. 29661 of 2015 for a
direction upon the respondents to appoint her on compassionate ground. The said writ petition was disposed
of on 21.5.2015 by issuing a direction upon the third respondent therein to consider the cause of the
petitioner.(Para 1)
2036 INDIAN LAW REPORTS ALLAHABAD SERIES
In compliance thereof, the respondent no.3 has rejected the claim of the petitioner by the impugned order
dated 4.10.2015 solely on the ground that the petitioner is a married daughter of late Sri Mausoof Alam
therefore, she canot be given such appointment. No other ground is mentioned in the impugned order.(Para
2)

It is contended on behalf of the petitioner that the view taken by the third respondent is contrary to the laid
down by this Court in case of Smt. Vimla Srivastava v. State of U.P. and another, 2016(1) ADJ 21 (DB). The
Division Bench has considered the constitutional validity of the word "unmarried" doming under definition of
the family. The Court has declared the word "unmarried" Rule 2(C)(iii) of the Rules 1974 as ultra vires and
unconstitutional. Consequently, the word "unmarried" has been struck down from the definition of the
'family'.(Para 3)

Held:(Para10-11,14-15)
1.It is a trite law that a judgment laid down by the High Court is binding on all the Courts, Tribunals and
outhorities irrespective of the fact that they are party in the case or not. This power of the High Court is akin
to the power of the Supreme Court under Article 141 Constitution of India. The reference may be to the
judgment of the Supreme Court in M/s. East India Commercial Co. Ltd. Calcutta and another v. Collector of
Customs, calcutta AIR 1962 SC 1893.

2.In the case of Dr. Rohit Gupta V. Principal, S.N. Medical College, Agra and others 1995 1 UPLBEC 365 the
Division Bench of this Court has considered the issue whether the law laid down by this Court is binding on
the authorities or the parties who were not party in the writ petition. This Court held that it is a settled legal
position that the judgment of this Court are binding on all the authorities automatically and the law laid down
by this Court must be faithfully complied with. The authorities cannot take stand that they comly the
judgment of the Court only when they receive the instructions from State Government.

3.Accordingly, I find that the impugned order dated 4.10.2015 passed by the third respondent needs to be set
aside.

4.Having regard to the facts and circumstances of the case and the law laid down in the aforesaid decision,
impugned order dated 4.10.2015 passed by third respondent is set aside. The matter is remitted to third
respondent to consider the matter afresh in the light of law laid down by this Court in Smt. Vimla
Srivastava(Supra). The said exercise shall be undertaken by the third respondent within two months from the
date of communication of this order. The petitioner shall submit a certified copy of this order along with a
copy of the order in Smt. Vimla Srivastava(Supra) before third respondent within 15 days from the date of
receipt of a certified copy of this order.

5.The writ petition is allowed. No order as to costs.

Case Law discussed:
1.Smt. Vimla Srivastava v. State of U.P. and another, 2016(1) ADJ 21 (DB) - paras 3, 6
2.Km. Shehnaj Begum Vs.

## Text

5 All. Km. Ruby Mausoof Vs State Of U.P. & Ors.

2035
4. The petitioner is 49 years of age. The question is if the one daughter of the petitioner is
studying B.Sc. and his second daughter has taken admission in the B.T.C. Training Course and his
son is studying in Class IX Standard and he is also 49 years of age how can he said to be the
dependant of his mother particularly when he is 49 years of age himself. It does not sound probable
that the petitioner was dependant upon his mother. Besides, his own two daughters and son would
be dependent upon him therefore, it is ludicrous to suggest that the petitioner is himself dependent
upon his mother. At the age of 49 the petitioner would have been expected to take care of his
mother rather that claim himself to be a dependent upon his mother. For the same reason the
averments of paragraph 8 of the writ petition hardly come to the aid of the petitioner. It appears that
this writ petition has been filed by the petitioner claiming appointment on compassionate ground as
a hereditary right rather than dire financial straits.

5. I do not find any merit in the writ petition and the same is accordingly dismissed.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.05.2016

BEFORE

THE HON'BLE PRADEEP KUMAR SINGH BAGHEL, J.

Writ A No.- 21437 Of 2016

Km. Ruby Mausoof ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Kamlesh Kumar Tiwari

Counsel for the Respondents:
C.S.C.

Service Law- Compassionate appointment - Married daughter - Rule 2(c)(iii) - U.P. Recruitment of
Dependents of Government Servants Dying-In-Harness Rules 1974 - Definition of family - Word
"unmarried" - Ultra vires - Unconstitutional - Articles 14 and 15 of the Constitution of India - Gender
discrimination - Dependency - Impugned order set aside - Matter remitted - Writ petition allowed.

The petitioner's father was a constable in Civil office and was posted in District Ghazipur, He died in harness
on 28.8.1999. The petitioner made an application for her appointment on compassionate ground. When no
decision was taken on the application of petitioner, she preferred Writ Petition No. 29661 of 2015 for a
direction upon the respondents to appoint her on compassionate ground. The said writ petition was disposed
of on 21.5.2015 by issuing a direction upon the third respondent therein to consider the cause of the
petitioner.(Para 1)
2036 INDIAN LAW REPORTS ALLAHABAD SERIES
In compliance thereof, the respondent no.3 has rejected the claim of the petitioner by the impugned order
dated 4.10.2015 solely on the ground that the petitioner is a married daughter of late Sri Mausoof Alam
therefore, she canot be given such appointment. No other ground is mentioned in the impugned order.(Para
2)

It is contended on behalf of the petitioner that the view taken by the third respondent is contrary to the laid
down by this Court in case of Smt. Vimla Srivastava v. State of U.P. and another, 2016(1) ADJ 21 (DB). The
Division Bench has considered the constitutional validity of the word "unmarried" doming under definition of
the family. The Court has declared the word "unmarried" Rule 2(C)(iii) of the Rules 1974 as ultra vires and
unconstitutional. Consequently, the word "unmarried" has been struck down from the definition of the
'family'.(Para 3)

Held:(Para10-11,14-15)
1.It is a trite law that a judgment laid down by the High Court is binding on all the Courts, Tribunals and
outhorities irrespective of the fact that they are party in the case or not. This power of the High Court is akin
to the power of the Supreme Court under Article 141 Constitution of India. The reference may be to the
judgment of the Supreme Court in M/s. East India Commercial Co. Ltd. Calcutta and another v. Collector of
Customs, calcutta AIR 1962 SC 1893.

2.In the case of Dr. Rohit Gupta V. Principal, S.N. Medical College, Agra and others 1995 1 UPLBEC 365 the
Division Bench of this Court has considered the issue whether the law laid down by this Court is binding on
the authorities or the parties who were not party in the writ petition. This Court held that it is a settled legal
position that the judgment of this Court are binding on all the authorities automatically and the law laid down
by this Court must be faithfully complied with. The authorities cannot take stand that they comly the
judgment of the Court only when they receive the instructions from State Government.

3.Accordingly, I find that the impugned order dated 4.10.2015 passed by the third respondent needs to be set
aside.

4.Having regard to the facts and circumstances of the case and the law laid down in the aforesaid decision,
impugned order dated 4.10.2015 passed by third respondent is set aside. The matter is remitted to third
respondent to consider the matter afresh in the light of law laid down by this Court in Smt. Vimla
Srivastava(Supra). The said exercise shall be undertaken by the third respondent within two months from the
date of communication of this order. The petitioner shall submit a certified copy of this order along with a
copy of the order in Smt. Vimla Srivastava(Supra) before third respondent within 15 days from the date of
receipt of a certified copy of this order.

5.The writ petition is allowed. No order as to costs.

Case Law discussed:
1.Smt. Vimla Srivastava v. State of U.P. and another, 2016(1) ADJ 21 (DB) - paras 3, 6
2.Km. Shehnaj Begum Vs. State of U.P. and others, (2013) Law Suit (All)754 - paras 5, 6
3.M/s. East India Commercial Co. Ltd. Calcutta and another v. Collector of Customs, Calcutta, AIR 1962 SC
1893 - para 10
4.Dr. Rohit Gupta V. Principal, S.N. Medical College, Agra and others,1995 1 UPLBEC 365 -paras 11, 12

(Delivered by Hon'ble Pradeep Kumar Singh Baghel, J.)
5 All. Km. Ruby Mausoof Vs State Of U.P. & Ors.

2037
1. The petitioner's father was a constable in Civil office and was posted in District
Ghazipur, He died in harness on 28.8.1999. The petitioner made an application for her appointment
on compassionate ground. When no decision was taken on the application of petitioner, she
preferred Writ Petition No. 29661 of 2015 for a direction upon the respondents to appoint her on
compassionate ground. The said writ petition was disposed of on 21.5.2015 by issuing a direction
upon the third respondent therein to consider the cause of the petitioner.

2. In compliance thereof, the respondent no.3 has rejected the claim of the petitioner by the
impugned order dated 4.10.2015 solely on the ground that the petitioner is a married daughter of
late Sri Mausoof Alam therefore, she canot be given such appointment. No other ground is
mentioned in the impugned order.

3. It is contended on behalf of the petitioner that the view taken by the third respondent is
contrary to the laid down by this Court in case of Smt. Vimla Srivastava v. State of U.P. and
another, 2016(1) ADJ 21 (DB). The Division Bench has considered the constitutional validity of
the word "unmarried" doming under definition of the family. The Court has declared the word
"unmarried" Rule 2(C)(iii) of the Rules 1974 as ultra vires and unconstitutional. Consequently, the
word "unmarried" has been struck down from the definition of the 'family'.

4. In view of the above, the Court has found that the married daughter is entitled for
appointment of compassionate ground.

5. However, learned Single Juge in the case of Smt. Uma Vs. State of U.P. and others,
Writ Petition No. 10906 of 2016 dismissed the writ petition on the ground that the devision Bench
in Smt. Vimla Srivastava (Supra) has failed to consider the Full Bench judgment of this Court in
Km. Shehnaj Begum Vs. State of U.P. and others, (2013) Law Suit (All) 754

6. Against the judgment of the learned Single Judge in Smt. Uma(Supra) a Special Appeal
No. 268 of 2016 was filed. The Division Bench in the said special appeal considered the judgment
of the Full Bench in Km. Shehnaj Begum(Supra) also and found that the issue decided in Smt.
Vimla Srivastava(Supra) was not raised before the Court in Km. Shehnaj Begum case, the relevant
part of the order reads as under:-

"It is true that under Rule 2 (c) of U.P. Recruitment of Dependents of Government
Servants Dying-In-Harness Rules 1974, unmarried daughters, unmarried adopted daughters,
widowed daughters and widowed daughters-in-law have been shown within the definition of
"Family". This is accepted position that married daughter has not been defined in the definition of
"Family".

 Full Bench of this Court in the case of Shehnaj Begum (Supra) has strictly
construed the definition of "Family" provided in Rule 2(c) of 1974 Rules and has proceeded to
answer the reference that has been so made by the Division Bench of this Court.
2038 INDIAN LAW REPORTS ALLAHABAD SERIES

Only issue before Full Bench was that the word "include" in the definition clause has
been used by the Rules framer in the sense of "means" or same is exhaustive. In the said context
answer that has been given by Full Bench is that definition of the family in Rule 2(c) of U.P.
Recruitment of Dependents of Government Servants Dying-In-Harness Rules 1974 is exhaustive. It
is, however, always open to the appropriate government to amend the definition of family so as to
include any other relations of the deceased government servant which it thinks fit to be included for
fulfilment of purpose and object of the Rules.

Once validity of the provision as contained under Rule 2(c) of Rules 1974 has been
tested on the parameter that the said provision is discriminatory on the basis of sex and is violative
of Article 14 and 15 of Constitution, and subsequent to the same, a Division Bench of this Court in
the case of Vimla Srivastava (Supra) has tested the said provision of Rule 2(c) of Rules 1974
based on gender discrimination and has held the exclusion of married daughter from the definition
of family being violative of Article 14 and 15 of the Constitution of India. Specific mention has
been made that in case married daughter has to be excluded then the said provision in question on
its face value is based on gender discrimination. In view of this, once such is the factual situation
and in para-27 of the judgment dated 04.12.2015, it has been held that 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 Article 14 and 15 of the Constitution and the
Division Bench has struck down the word "unmarried" in Rule 2(c)(iii) of the Dying-in-Harness
Rules.

Consequently, judgment dated 04.12.2015 passed in the case of Vimla Srivastava
(Supra), on subsequent occasion by coordinate bench of this Court has to be followed by us based
on judicial discipline, and learned Standing counsel has informed us that said judgement is holding
the field till today as validity of the same has not been challenged before Apex Court and there is
no interim order operating, we proceed to pass order directing therein that in case appellantpetitioner applies for consideration of her claim for grant of compassionate appointment, then same
be examined and her claim should not be non-suited on the ground that she is married daughter of
deceased, however at the point of time of consideration of her claim, dependency should also be
looked into as to whether she was really dependant or it is a pretence to get compassionate
appointment, apart from other relevant considerations for grant of compassionate appointment
including the fact of status of her husband preferably within three months from the date of
presentation of certified copy of the order passed by this Court.

In view of the above, the order passed by learned Single Judge is set aside and
present special appeal is allowed."

7. In view of the above, now the issue stand clarified and there is no conflicting judgment.

8. Since no factual controversy is involved in the matter, calling a response from the
respondents, would not serve any purpose. Therefore, with the consent of parties the matter is taken
on Board for final disposal
5 All. Km. Ruby Mausoof Vs State Of U.P. & Ors.

2039
9. For the reason stated herein above, I find that the order of the third respondent is
contrary to the law laid down by this Court.

10. It is a trite law that a judgment laid down by the High Court is binding on all the
Courts, Tribunals and outhorities irrespective of the fact that they are party in the case or not. This
power of the High Court is akin to the power of the Supreme Court under Article 141 Constitution
of India. The reference may be to the judgment of the Supreme Court in M/s. East India
Commercial Co. Ltd. Calcutta and another v. Collector of Customs, calcutta AIR 1962 SC
1893.

11. In the case of Dr. Rohit Gupta V. Principal, S.N. Medical College, Agra and others
1995 1 UPLBEC 365 the Division Bench of this Court has considered the issue whether the law
laid down by this Court is binding on the authorities or the parties who were not party in the writ
petition. This Court held that it is a settled legal position that the judgment of this Court are binding
on all the authorities automatically and the law laid down by this Court must be faithfully complied
with. The authorities cannot take stand that they comly the judgment of the Court only when they
receive the instructions from State Government.

12. The Court had issued a warning that in future this Court will not tolerate such type of
stand taken by the authorities. The relevant part of the judgment reads as under:-

(5)"......... The judgments of this court are binding on all authorities automatically
and it is not that they become finding only when approved by the State Govt. It is surprising that
the Principal of a Medical College has taken a wholly illegal and untenable stand in an-nexure-7 to
the writ petition. We were inclined to issue contempt notice but we refrained ourseleves from doing
so as we feel that he has issued the letter which is annexure-7 in ignorance of the legal position but
we will grant not further indulgence to him in future. The Principal of S. N. Medical College, Agra
and all other authorities in the State must know that orders of this court are binding on them
automatically and must be faithfully and punctually complied with, and such authorities cannot
take a stand that they will comply with the judgment of this court only when they receive some
communication from the -authorities are cautioned against taking up such attitude in respect of the
orders or judgments of this Court." (Emphasis supplied)

13. Accordingly, I find that the impugned order dated 4.10.2015 passed by the third
respondent needs to be set aside.

14. Having regard to the facts and circumstances of the case and the law laid down in the
aforesaid decision, impugned order dated 4.10.2015 passed by third respondent is set aside. The
matter is remitted to third respondent to consider the matter afresh in the light of law laid down by
this Court in Smt. Vimla Srivastava(Supra). The said exercise shall be undertaken by the third
respondent within two months from the date of communication of this order. The petitioner shall
submit a certified copy of this order along with a copy of the order in Smt. Vimla
2040 INDIAN LAW REPORTS ALLAHABAD SERIES
Srivastava(Supra) before third respondent within 15 days from the date of receipt of a certified
copy of this order.

15. The writ petition is allowed. No order as to costs.
----------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.05.2016

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE VINOD KUMAR SRIVASTAVA-III, J.

Application U/S 482 No.- 23574 Of 2015

Upendra Yadav & Ors. ...Aplicants
Versus
State Of U.P. & Anr. ...Respondents

Counsel for the Aplicants:
Satya Srivastava

Counsel for the Respondents:
Govt. Advocate, Ramesh Kumar Pandey

Prevention of corruption act, 1988 - Section 19(1) - Sanction for prosecution - Mandatory
requirement - Investigation against public servant cannot be ordered without prior sanction
even at pre-cognizance stage.

Sanction from competent authority is a pre-condition before directing investigation under Section 156(3)
Cr.P.C. against a public servant alleged to have committed offence while discharging official duties.(Paras 711)
Criminal procedure - Section 156(3) Cr.P.C. - Scope - Magistrate's power to direct
investigation - Limitation in cases involving public servants.
Where allegations are against public servants and sanction has not been obtained from competent authority,
the Magistrate cannot direct registration of FIR and investigation under Section 156(3) Cr.P.C.(Paras 8-11)
Sanction for prosecution - Absence of sanction - Order directing investigation illegal and liable
to be quashed.
(Paras 11-12)
In Result: Application allowed, Impugned order passed by Special Judge directing police to register case
and investigate applicants held unsustainable in law due to absence of valid sanction.

List of Cases cited:

Anil Kumar and others vs. M.K. Aiyappa and another(2013) 10 SCC 705
Maksud Saiyed vs. State of Gujarat 2008 (5) SCC 668

(Delivered by Hon'ble Ramesh Sinha, J.)