# Mrs. Vinay Kumari v. State of U.P. & Anr

- **Citation:** (2021) 2 ILRA 777
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-25
- **Case number:** Service Single No. 12306 of 2016
- **Bench:** Chandra Dhari Singh Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mrs-vinay-kumari-v-state-of-u-p-anr-46807
- **Pages:** 6

## Headnote

A. Civil Law
- U.P. Recruitment of
Dependents of Government Servant Dying
in Harness Rules, 1974 - Rule 5 -
Compassionate appointment - Object and
Purpose - Maintenance of other family
members of deceased - Consequence of
failure
-
Object
and
purpose
of
compassionate appointment is to provide
ameliorative relief to the family of a
government servant who has died in
harness
-
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. (Para 10 and 11)
B. Civil Law
- U.P. Recruitment of
Dependents of Government Servant Dying
in Harness Rules, 1974 - Rule 5 -
Compassionate appointment - Filing of
application - Time limit of five years -
Relaxation - Held, 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. (Para 11)
C. Constitution of India - Article 14 and 15
- U.P. Recruitment of Dependents of
Government Servant Dying in Harness
Rules, 1974 - Rule 2(c) - Compassionate
appointment - Word 'family' - Scope and
Ambit - Use of the word 'unmarried'
before
daughter
-
Validity
-Married
daughter - Entitlement - A daughter after
her marriage does not cease to be a
daughter of the father or mother - Use of
word 'unmarried' in Rule 2 (c) (iii) of
Dying-in-Harness Rules held illegal and
unconstitutional,
being
violative
of
Articles 14 and 15 of the Constitution.
(Para 16 and 19)
778 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ Petition allowed. (E-1)
Cases relied on :-

## Text

2 All. Mrs. Vinay Kumari Vs. State of U.P. & Anr.
777
Superintendent of Police, Lucknow is liable
to be set aside.

20. Accordingly, the writ petition is
allowed. Impugned order dated 29.09.2016
is hereby set aside. A writ of mandamus is
issued
directing
the
respondents
-
competent authority to re-consider the
claim
of
the
petitioner
for
the
reimbursement of the medical bills in terms
of the Uttar Pradesh Government Servants
(Medical and Attendance) Rules, 2011.
Whatever amount the petitioner is entitled,
the same be released. The said exercise
shall be completed within two months from
the date of receipt of a certified copy of this
order.

No costs. Pending applications, if any
stands disposed of.
----------
(2021)02ILR A777
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.01.2021

BEFORE

THE HON'BLE CHANDRA DHARI SINGH ALI, J.

Service Single No. 12306 of 2016

Mrs. Vinay Kumari ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Yadukul Shiromani Srivast

Counsel for the Respondents:
C.S.C.

A. Civil Law
- U.P. Recruitment of
Dependents of Government Servant Dying
in Harness Rules, 1974 - Rule 5 -
Compassionate appointment - Object and
Purpose - Maintenance of other family
members of deceased - Consequence of
failure
-
Object
and
purpose
of
compassionate appointment is to provide
ameliorative relief to the family of a
government servant who has died in
harness
-
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. (Para 10 and 11)
B. Civil Law
- U.P. Recruitment of
Dependents of Government Servant Dying
in Harness Rules, 1974 - Rule 5 -
Compassionate appointment - Filing of
application - Time limit of five years -
Relaxation - Held, 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. (Para 11)
C. Constitution of India - Article 14 and 15
- U.P. Recruitment of Dependents of
Government Servant Dying in Harness
Rules, 1974 - Rule 2(c) - Compassionate
appointment - Word 'family' - Scope and
Ambit - Use of the word 'unmarried'
before
daughter
-
Validity
-Married
daughter - Entitlement - A daughter after
her marriage does not cease to be a
daughter of the father or mother - Use of
word 'unmarried' in Rule 2 (c) (iii) of
Dying-in-Harness Rules held illegal and
unconstitutional,
being
violative
of
Articles 14 and 15 of the Constitution.
(Para 16 and 19)
778 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ Petition allowed. (E-1)
Cases relied on :-
1. Writ C No.41279 of 2014, Isha Tyagi Vs St. of
U.P. decided on 26.08.2014
2. Vijaya Manohar Arbat Vs Kashirao Rajaram
Sawai, AIR 1987 SC 1100
3. Githa Hariharan Vs R.B.I., (1999) 2 SCC 228
4. National Legal Services Authority Vs U.O.I.,
(2014) 5 SCC 438
5. Writ C No. 60881 of 2015, Smt. Vimla
Srivastava Vs St. of U.P. & anr. decided on
04.12.2015

(Delivered by Hon'ble Chandra Dhari Singh, J.)

1. The petition seeks issuance of a
writ in the nature of certiorari quashing
impugned order dated 11.04.2016 passed
by respondent no.2/Executive Engineer,
Irrigation Division, Rae Bareli.

2. The petition also seeks issuance of
a writ in the nature of mandamus directing
respondents to reconsider the case of the
petitioner
for
appointment
on
compassionate grounds on appropriate post
under U.P. Recruitment of Dependents of
Government Servant Dying in Harness
Rules, 1974.

3. Brief facts of the case are that the
petitioner's father Shri Om Prakash was
employed in the Irrigation Department in the
year 1976 as Roller Operator. After his death
on 05.05.1986, her mother Mrs. Chandrawati
was appointed as Peon and posted in Sub
Division Bachharawan functioning under
Executive Engineer, Irrigation Division, Rae
Bareli. Marriage of the petitioner was
solemanised with Shri Jitendra Kumar, R/o
Village Mankhera, Post Kankaha, District
Lucknow. The petitioner's mother died on
12.09.2009. The petitioner's husband is also
unemployed and he was also dependent on
petitioner's mother (now deceased). After
death of the petitioner's mother, the petitioner
has no source of income. She applied for
appointment on compassionate grounds
under U.P. Recruitment of Dependents of
Government Servant Dying in Harness Rules,
1974 (hereinafter referred as 'dying in harness
rules') on 19.11.2009 and when no order was
passed, she again applied for the same on
28.09.2012 and 26.10.2012 but again no
order was passed on the said applications.
The petitioner filed a writ petition bearing
No.1328 (SS) of 2015 which was disposed of
vide order dated 23.12.2015 with a direction
to the competent authority to consider and
decide
petitioner's
application
for
compassionate appointment keeping in mind
the law settled. Vide impugned order dated
11.04.2016 (supra), the Executive Engineer
rejected the claim of the petitioner. Hence,
the writ petition has been filed.

4. Learned counsel for the petitioner has
submitted that the impugned order dated
11.04.2016 (supra) has been passed by
respondent no.2 in utter denial of the verdict
of Hon'ble Supreme Court as well as this
Court passed in several judgments. It is
submitted that now the law is settled that
under Section 2C of dying in harness rules,
the petitioner/married daughter is also
included in the 'member of family'. Thus,
while passing the impugned order, the
concerned authority has not considered the
legal position as also not taken into
consideration the several judgments passed
by Hon'ble Supreme Court as well as this
Court from time to time. The impugned order
is illegal, arbitrary and contrary to the law
settled and deserves to be quashed.

5. Per Contra, learned counsel
appearing for the State has opposed the
petition on merit, however has acceded to
2 All. Mrs. Vinay Kumari Vs. State of U.P. & Anr.
779
the legal position laid down by Hon'ble
Supreme Court as well as this Court.

6. Counter and rejoinder affidavits
have been filed by the parties and are
available on record.

7. I have heard learned counsel for the
parties and perused the record.

8. The Uttar Pradesh Recruitment of
Dependents
of
Government
Servants
Dying-in-Harness Rules, 1974 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.

9. Rule 2(c) of the Dying-in-Harness
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."

10. 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
780 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

11. 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.

12. 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.

13. 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.

14. In the judgment of this Court in
Isha Tyagi v. State of U.P. - Writ C
No.41279 of 2014, 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
2 All. Mrs. Vinay Kumari Vs. State of U.P. & Anr.
781
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."

15. 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."

16.

In
Vijaya
Manohar
Arbat v. Kashirao Rajaram SawaI - AIR
1987 SC 1100, 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".

17. The same principle was applied
in Githa Hariharan v. Reserve Bank of
India - (1999) 2 SCC 228 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
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.

18. In National Legal Services
Authority v. Union of India - (2014) 5
SCC 438, 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
782 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

19. In Smt. Vimla Srivastava v. State of
U.P. & Anr. - Writ - C No.60881 of 2015
Dated 04.12.2015, a Division Bench of this
Court has struck down the word 'unmarried'
in Rule 2 (c) (iii) of Dying-in-Harness Rules
and hold 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
Articles 14 and 15 of the Constitution.

20. In view of the above, the instant
petition is allowed.

21. Impugned order dated 11.04.2016
passed
by
respondent
no.2/Executive
Engineer, Irrigation Division, Rae Bareli is
hereby quashed.

22. A mandamus is issued to the
Executive Engineer, Irrigation Division, Rae
Bareli to consider the petitioner's claim for
compassionate appointment, in accordance
with law, which shall mean without reference
to her marital status, within a period of three
months from the date of production of a copy
of this order.

23. No order as to costs.
----------
(2021)02ILR A782
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.01.2021

BEFORE

THE HON'BLE MANISH MATHUR, J.

Service Single No. 16156 of 2020

Rajendra Kumar ...Petitioner
Versus
Director General, Council of Sc. & Tech. &
Ors. ...Respondents

Counsel for the Petitioner:
Shivam Sharma

Counsel for the Respondents:
Ajit Kumar

A. Constitution of India - Article 226 - Writ
- Maintainability - Alternative remedy of
Appeal - Three exceptions, when writ
petition
is
maintainable
even
despite
availability of alternative remedy - Such
exceptions are enforcement of fundamental
rights, violation of principles of natural
justice, where order or proceedings are
without jurisdiction and where vires of an
Act is challenged - Whirlpool Corporation's
case followed - Pleadings regarding lack of
jurisdiction and violation of principles of
natural justice is there in the writ petition -
Held, writ petition is maintainable. (Para
10.3, 10.4 and 10.5)
B. Civil Law - Council of Science &
Technology,
Uttar
Pradesh
(Service)
Regulations, 1989 - Regulations 68(iv) and
71 - Departmental Enquiry - Punishment -
Censure and reduction of pay - No Prima
facie
satisfaction
recorded
before
full
fledged
enquiry
-
Non-compliance
of
procedure prescribed in Regulation 68(iv) -
Effect - Held, Non-compliance of the
provision
would
completely
defeat
its
object, failure to adhere the provision would
lead to severe consequences - Provisions of
Regulation 68 (iv) of the Regulations of
1989 are mandatory in nature. (Para 11.14
and 11.15)
C. Civil Law - Council of Science &
Technology,
Uttar
Pradesh
(Service)
Regulations, 1989 - Regulation 68 (v) and