# Neelam Devi v. State of U.P. & Ors

- **Citation:** (2023) 7 ILRA 192
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-17
- **Case number:** Writ A No. 18566 of 2021
- **Bench:** Devendra Kumar Upadhyaya, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/neelam-devi-v-state-of-u-p-ors-50402
- **Pages:** 5

## Headnote

C.S.C., Gaurav Mehrotra, Prashasht Puri,
Prashast Puri
7 All. Neelam Devi Vs. State of U.P. & Ors.
193
A.
Service
Law
-
UP
Cooperative
Societies Act, 1965 - Section 122 - UP
Cooperative
Societies
Employees'
Service Regulations, 1975 - Reg. 104 -
Compassionate
Appointment
-
Entitlement of married daughter - Rule
104 included only 'unmarried daughter'
in the term Family - Validity challenged
- Held, if compassionate appointment
has
been
made
available
to
the
daughters, irrespective of their marital
status,
of
the
St.
Government
employees, there does not appear to be
any reason why such benefit should be
refused
to
the
daughters
of
the
deceased employees who have served a
Cooperative Society in the St. of Uttar
Pradesh - Smt. Vimla Srivastava' case
relied upon. (Para 7 and 8)

Writ petition allowed. (E-1)

List of Cases cited:

Writ C No. 60881 of 2015; Smt. Vimla Srivastva
Vs St. of UP decided on 04.12.2015

## Text

192 INDIAN LAW REPORTS ALLAHABAD SERIES
of proving that the death took place at any
particular time within 7 years lies upon the
person, who claims a right to the
establishment of which that fact is
essential.

11. Likewise the Privy Council in the
case of Lal Chand Marwari Vs. Mahant
Ramrup Gir reported in AIR 1926 PC 9, a
case which has been referred to by this
Court in the case of Zishan Khan (supra)
has also held that if the person has not been
heard of for 7 years, there is a presumption
of law that he is dead; but at what time
within that period he died is not a matter of
presumption but of evidence and the onus
of proving that the death took place at any
particular time within the seven years lies
upon the person who claims a right to the
establishment of which that fact is
essential.

12. In a number of judgments over
which the reliance has been placed by
this Court in the case is Zishan Khan
(supra), it is apparent that the burden of
proving the specific date of death lies
upon the person who claims a right to the
establishment of that fact. In the instant
case, it is the petitioner who is trying to
stake
her
claim
for
compassionate
appointment by asserting that the death of
the petitioner's husband took place even
prior to his actual date of retirement
which was 30.04.2006, he having gone
missing on 20.07.2002.

13. Considering the law laid down by
the Apex Court in the case of R. Gopala
Pathar (supra), Gujjar Singh (supra) as
well as by the Privy Council in the case of
Lal Chand Marwari (supra), it is
apparent that the presumption of proving
the actual date of death would lie on the
petitioner. However, nowhere in the entire
petition the actual date of death of the
petitioner's husband is mentioned nor any
actual date is coming out from the
declaration of any competent court as to on
which date the petitioner's husband had
died.

14. This Court while exercising the
jurisdiction under Article 226 of the
Constitution of India finds that the question
remains disputed as to the fact of actual
date of the petitioner's husband.

15. Keeping in view of the aforesaid,
discussion this Court does not find any
infirmity with the impugned order dated
10.07.2013 and the writ petition is
accordingly dismissed.

16. However, the petitioner would be
at liberty of approaching the competent
court of law for a declaration regarding the
actual date of death of her husband.
----------
(2023) 7 ILRA 192
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.07.2023

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ A No. 18566 of 2021

Neelam Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ajay Madhavan

Counsel for the Respondents:
C.S.C., Gaurav Mehrotra, Prashasht Puri,
Prashast Puri
7 All. Neelam Devi Vs. State of U.P. & Ors.
193
A.
Service
Law
-
UP
Cooperative
Societies Act, 1965 - Section 122 - UP
Cooperative
Societies
Employees'
Service Regulations, 1975 - Reg. 104 -
Compassionate
Appointment
-
Entitlement of married daughter - Rule
104 included only 'unmarried daughter'
in the term Family - Validity challenged
- Held, if compassionate appointment
has
been
made
available
to
the
daughters, irrespective of their marital
status,
of
the
St.
Government
employees, there does not appear to be
any reason why such benefit should be
refused
to
the
daughters
of
the
deceased employees who have served a
Cooperative Society in the St. of Uttar
Pradesh - Smt. Vimla Srivastava' case
relied upon. (Para 7 and 8)

Writ petition allowed. (E-1)

List of Cases cited:

Writ C No. 60881 of 2015; Smt. Vimla Srivastva
Vs St. of UP decided on 04.12.2015

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.
&
Hon'ble Om Prakash Shukla, J.)

1. Facts of this case presented before
us manifest as to how the State can still be
apathetic towards the cause of gender
justice despite a clear declaration of law by
Hon'ble the Supreme Court in the matter of
compassionate appointment.

2. Heard Shri Ajay Madhavan,
learned counsel for the petitioner, learned
State Counsel representing the Staterespondents, Ms. Rani Singh holding brief
of Shri Gaurav Mehrotra representing the
U.P. Cooperative Rural Development Bank
Ltd. and Shri Prashast Puri, learned counsel
representing U.P. Cooperative Institutional
Service Board.

3. The petitioner's father was
employed as Assistant Branch Accountant
with
the
respondent-Bank,
who
unfortunately
died
in
harness
and
accordingly
the
petitioner
being
his
daughter made an application seeking
compassionate appointment. However, the
compassionate appointment, as claimed by
the petitioner, has been denied solely on the
ground that she is a married daughter of the
deceased employee. In terms of the
provisions contained in Regulation 104 of
the U.P. Cooperative Societies Employees'
Service Regulations, 1975 (hereinafter
referred to as 'Regulations 1975'), it is only
unmarried daughter who is eligible for
being offered compassionate appointment
and not the married daughter. The claim of
the petitioner was, thus, rejected by means
of an order dated 29.01.2021, which is
under challenge before us in this writ
petition. Apart from challenging the said
order of rejection of claim of the petitioner
for
compassionate
appointment,
the
petitioner has also prayed for issuance of an
appropriate writ striking down the word
'unmarried' occurring in Regulation 104 of
Regulations 1975.

4. It appears that during pendency of
the writ petition a proposal was made by
Institutional Service Board to amend
Regulation 104 of Regulations 1975,
however, the said proposal has been turned
down by the State Government and
information to the said effect has been sent
to the office of learned Chief Standing
Counsel by the State Government which is
contained in the letter dated 27.03.2023.
The said letter dated 27.03.2023 is taken on
record.

5. For governing the conditions of
service of the employees of Cooperative
Societies in the State of Uttar Pradesh,
194 INDIAN LAW REPORTS ALLAHABAD SERIES
regulations have been framed by U.P.
Cooperative Institutional Service Board in
terms of the provisions contained in
Section 122 of U.P. Cooperative Societies
Act, 1965 (hereinafter referred to as '1965
Act') which empowers the Board to frame
regulations regulating the conditions of
service, however, such regulations are
subject
to
approval
of
the
State
Government. It is in exercise of powers
vested by Section 122 of the 1965 Act that
1975 Regulations have been made by the
Board with the approval of the State
Government and it is as per the requirement
of Section 122 of 1965 Act that amendment
in Regulation 104 of Regulations 1975 was
proposed by the Board, however, the State
Government has refused to accord its
approval to the said proposal.

6.

Regulation
104
of
1975
Regulations provides for recruitment of
dependents of the deceased employees. A
note is appended to said Regulation 104,
according to which "family" includes the
wife/husband, sons and unmarried or
widowed
daughters
of
the
deceased
employee. The amendment by the Board
was
proposed
to
include
daughters
irrespective of their marital status, however,
the said amendment has not been acceded
to by the State Government.

7. At this juncture, we may notice that
so far as the State Government employees
are
concerned,
compassionate
appointments are governed by statutory
prescriptions
available
in
the
U.P.
Recruitment of Dependants of Government
Servants Dying in Harness Rules, 1974.
The said Rules have been framed under
Article 309 of the Constitution of India and
initially within the definition of the word
"family", these rules also did not include
'unmarried daughters'. However, a Division
Bench of this Court in a bunch of cases,
leading writ petition being Writ -C
No.60881 of 2015, Smt. Vimla Srivastva
Vs. State of Uttar Pradesh and Another
delivered a
judgment on 04.12.2015
striking down the word "unmarried" in
Rule 2 (c)(iii) of the Dying in Harness
Rules applicable to the State Government
employees. Parity of the judgment in the
case of Vimla Srivastava was given to
another
individual,
namely,
Neha
Srivastava by a judgment of this Court
delivered
by
a
Division
Bench
on
23.12.2015 in Special Appeal (Defective)
No.863 of 2015 (Neha Srivastava Vs. State
of U.P. & Another). The said judgment by
the Division Bench in the case of Neha
Srivastava was taken up by the State
Government before Hon'ble the Supreme
Court by instituting Special Leave Petition
No.22646 of 2016 which was dismissed by
Hon'ble Supreme Court by means of the
order dated 23.07.2019. After the aforesaid
order passed by Hon'ble the Supreme Court
dismissing the special leave petition of the
State Government in the case of Neha
Srivastava, so far as the Rules governing
the compassionate appointment in respect
of
State
Government
employees
are
concerned, an amendment has been brought
in the said Rules vide notification dated
12.11.2021.
According
to
the
said
amendment,
"family"
now
includes
daughters irrespective of their marital
status. The amended rules notified on
12.11.2021
in
respect
of
the
State
Government
employees
is
quoted
hereunder :-

GOVERNMENT OF UTTAR
PRADESH
PERSONNEL SECTION-2
NOTIFICATION
Miscellaneous
No.6/XII-1973-Personnel-2-2021T.C.-IV
7 All. Neelam Devi Vs. State of U.P. & Ors.
195
Dated Lucknow, 12 November, 2021

IN exercies of the powers conferred by
the
proviso
to Article
309
of
the
Constitution, the Governor is pleased to
make the following rules with a view to
amending. The Uttar Pradesh Recruitment
of Dependants of Government Servants
Dying in Harness Rules, 1974:
THE UTTAR PRADESH
RECRUITMENT OF DEPENDANTS
OF GOVERNMENT SERVANTS
DYING IN HARNESS (TWELFTH
AMENDMENT) RULES, 2021

Short title and1.commencement

(1) These rules may be called The
Uttar Pradesh Recruitment of Dependants
of Government Servants Dying in Harness
(Twelfth Amendment) Rules, 2019.

(2) They shall come
into force at once.

Amendment of rule-2 2. In the Uttar
Pradesh Recruitment of Dependants
of
Government Servants Dying in Harness
Rules, 1974, in rule-2, for existing clause
(c) set out in column-1 below, the clause as
set out in column-2 shall be substituted,
namely:-

COLUMN-1
COLUMN-2
Existing clause
(c) "family" shall include the
following following relations of
the 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 by the competent
Clause
as
hereby
substituted
(c)
"family"
shall
include the following
relations of the deceased
Government servant:-
(i) wife or husband;
(ii) sons/adopted sons;
(iii)
daughters
(including
adopted
daughters)
and
widowed daughters-inlaw,
(iv) unmarried brothers,
unmarried sisters and
widowed
mother
dependent
on
the
deceased
Government
servant, if the deceased
Government servant was
unmarried;
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.
(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.

By order,

(Dr. Devesh Chauturvedi)

Additional Chief Secretary.

8. When we, thus, notice the facts of
this case, we do not find any plausible
reason why the proposal made by the
Institutional Service Board for making
amendment in the note appended to
Regulation 104 of the 1975 Service
Regulations could be turned down by the
State
Government.
If
compassionate
appointment has been made available to the
daughters irrespective of their marital
status, of the State Government employees,
there does not appear to be any reason why
such benefit should be refused to the
daughters of the deceased employees who
have served a Cooperative Society in the
State of Uttar Pradesh. The conditions of
services
are
governed
by
statutory
prescriptions made in terms of provisions
contained in Section 122 of 1965 Act. We
are rather at dismay by noticing that the
proposal sent by the Institutional Board has
196 INDIAN LAW REPORTS ALLAHABAD SERIES
not been approved though in respect of
State Government employees the provision
has been amended where "family" now
includes daughters irrespective of their
marital status. It cannot be presumed that
the State while rejecting the proposal sent
by the Institutional Service Board for
amending Regulation 104 was not aware of
the Division Bench Judgment of this Court
in the case of Vimla Srivastava and Neha
Srivastava (supra). It is also difficult to
comprehend as to why the fact that the
special leave petition filed by the State in
the case of Neha Srivastava has been
dismissed paving the way to give the
benefit of compassionate appointment to all
the daughters of the deceased employees
irrespective of their marital status has gone
unnoticed.

9. For the aforesaid reasons, this writ
petition
is
allowed
and
the
word
"unmarried" occurring in the note appended
to Regulation 104 of U.P. Cooperative
Societies Employees' Service Regulations,
1975 is hereby struck down.

10. We, accordingly, also quash the
impugned order dated 29.01.2021 passed
by the General Manager (Administration)
of the respondent-Bank as is contained in
Annexure 2 to the writ petition.

11. Resultantly, we also direct that the
claim of the petitioner shall be considered
for compassionate appointment treating her
to be eligible for such claim, within a
period of two months from the date of
production of a certified copy of this order.

12. We categorically direct the
authority concerned of the respondentBank shall decide the claim of the
petitioner within the period which is being
stipulated in this order for the reason that
already about four years time period has
elapsed from the date of death of the
deceased employee.
----------
(2023) 7 ILRA 196
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.07.2023

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Writ B No. 32911 of 2019

Tarawati @ Muna ...Petitioner
Versus
D.D.C. Unnao & Ors. ...Respondents

Counsel for the Petitioner:
Anoop Srivastava

Counsel for the Respondents:
C.S.C., Yogendra Nath Yadav, Dileep
Kumar Pandey

A. Consolidation Law - UP Consolidation
of Holding Act, 1953 - Section 19(f) -
Allotment of chak - Roadside chak - Cosharer's entitlement - All the co-sharers
were allotted the Chaks on the side of
Khadanja
by
CO
-
In
appeal,
the
petitioner's chak has come on the back
side,
though
other
co-sharers
were
allotted
the
Chaks
on
the
side
of
Khadanja - Legality challenged - Held, if
the original holding is on the road side
and partition has not taken place, then all
the co-sharers will have right over whole
of the holding, therefore the Chaks
should be made in a manner that all the
co-sharers may get Chaks on the road
side and with their improvements, unless
there is any legal impediment or not
possible at all for the reasons to be
recorded. (Para 3 and 9)

Writ petition partly allowed. (E-1)

List of Cases cited: