# Radhika Baghel v. State of U.P. & Ors

- **Citation:** (2023) 6 ILRA 632
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-02
- **Case number:** Writ-A No. 494 of 2023
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhika-baghel-v-state-of-u-p-ors-50337
- **Pages:** 7

## Headnote

Law
-
Compassionate
Appointment - Intermediate Education
Act, 1921 - Regulation 103 of Chapter
III - U.P. Government Servants (Dying in
Harness) Rules, 1974 - The denial of
compassionate
appointment
to
the
applicant/petitioner in the instant case
cannot be justified on the ground that
she is a married daughter. Once the St.
itself has come to accept the Division Bench
judgment of this Court in the case of Smt.
Vimla Srivastava (infra) so as to amend the
U.P. Government Servants (Dying in Harness)
Rules, 1974 and later on also vide gazette
notification on behalf of Madhyamik Shiksha
Parishad amended Rregulation 103 of Chapter
III of the Intermediate Education Act, it
would be taken that it was always there to be
the law and so the St. intended to correct
rule/regulation by incorporating a provision to
include married daughter within the meaning
of word 'family' of dependents of deceased
employee looking to the judgment of Division
Bench. It has been admitted at the bar that
the said judgment of Smt. Vimla Srivastava
(infra) still holds the field and SLP preferred
against which was also dismissed. (Para 13,
15)

B. The petitioner in any manner was not
responsible for delay in applying for
compassionate
appointment.
The
petitioner has been pursuing the matter since
the year 2015 itself. Her late father died in
the year 2012 and she came to file writ
petition before this Court as early as in the
year 2014 being Writ-A No. 37939 of 2014
filed on 14.07.2014. In the order passed
by the DISs dated 05.11.2014 he has not
taken the ground of delay, if any, caused
by the present applicant, while rejecting
her claim for compassionate appointment
and instead her claim came to be rejected
only on account of the fact that Regulation
103 of Chapter III of the Intermediate
Education Act did not provide for married
daughter
to
be
included
within
the
definition of 'family' of dependents. While
the petition being Writ-A No. 4553 of 2015
remained
pending
before
this
Court,
against
the
said
order,
the
Vimla
Srivastava's
judgment
(infra)
intervened in which married daughter
was directed to be included and the
relevant provisions not including the
married daughter as the member of
dependent's 'family' of the deceased
was held to be ultra virus.
6 All. Radhika Baghel Vs. State of U.P. & Ors.
633
After the aforesaid judgement Madhyamik
Shiksha Parishad rushed to amend its provision
as contained in Regulation 103 vide gazette
notification dated 06.12.2022 which now
uses the word 'daughter' only which
would
include
both
married
and
unmarried daughters undisputedly. (Para
17, 18, 19)

C. A principle that should be taken as a
rule that a married daughter, if married
during lifetime of her father or mother in
government service, shall always be taken
as dependent upon her husband unless
and until it could be established that even
her husband has not been earning and
both were dependents upon the deceased
at the time of his death. In Indian concept of
'family' a wife is taken to be dependent upon
her husband, if she herself is not employed. So
also the first family members are taken to be
dependents. Likewise even a married daughter
if not having an earning husband may be
dependent, and for this above purpose a
married daughter would fall within the word
'family' so as not to deny her claim for
compassionate appointment. For this purpose, it
would be necessary to examine whether
husband has been gainfully employed and if not
his financial status and the financial status of
the married daughter. (Para 20)

D. It is always to be seen whether even
after a lapse of considerably long period
(like seven years of the death of earning
member as in this case), a family still
needs service for survival or does the
family still need financial help to meet any
crisis more especially in the circumstances
when the widow may be receiving pension
and all the daughters including the
petitioner were married prior to the death
of the e

## Text

632 INDIAN LAW REPORTS ALLAHABAD SERIES
the post. The candidate / employee cannot
claim appointment, and / or, continue on
the post as a matter of right.

15. This Court in exercise of its
discretionary jurisdiction under Article 226
of the Constitution of India, would not sit
in appeal on the discretion exercised by the
employer in not offering appointment to the
petitioner for suppression of material fact
reflecting upon his character and credibility
to the post of Sub-Inspector.

16. Having regard to the facts and
circumstances of the case, we are not
inclined to take an opinion different from
that of learned Single Judge.

17. The appeal being devoid of merit,
is accordingly, dismissed.
----------
(2023) 6 ILRA 632
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2023

BEFORE

THE HON'BLE AJIT KUMAR, ,J.

Writ-A No. 494 of 2023

Radhika Baghel ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ramesh Chandra Dwivedi

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Compassionate
Appointment - Intermediate Education
Act, 1921 - Regulation 103 of Chapter
III - U.P. Government Servants (Dying in
Harness) Rules, 1974 - The denial of
compassionate
appointment
to
the
applicant/petitioner in the instant case
cannot be justified on the ground that
she is a married daughter. Once the St.
itself has come to accept the Division Bench
judgment of this Court in the case of Smt.
Vimla Srivastava (infra) so as to amend the
U.P. Government Servants (Dying in Harness)
Rules, 1974 and later on also vide gazette
notification on behalf of Madhyamik Shiksha
Parishad amended Rregulation 103 of Chapter
III of the Intermediate Education Act, it
would be taken that it was always there to be
the law and so the St. intended to correct
rule/regulation by incorporating a provision to
include married daughter within the meaning
of word 'family' of dependents of deceased
employee looking to the judgment of Division
Bench. It has been admitted at the bar that
the said judgment of Smt. Vimla Srivastava
(infra) still holds the field and SLP preferred
against which was also dismissed. (Para 13,
15)

B. The petitioner in any manner was not
responsible for delay in applying for
compassionate
appointment.
The
petitioner has been pursuing the matter since
the year 2015 itself. Her late father died in
the year 2012 and she came to file writ
petition before this Court as early as in the
year 2014 being Writ-A No. 37939 of 2014
filed on 14.07.2014. In the order passed
by the DISs dated 05.11.2014 he has not
taken the ground of delay, if any, caused
by the present applicant, while rejecting
her claim for compassionate appointment
and instead her claim came to be rejected
only on account of the fact that Regulation
103 of Chapter III of the Intermediate
Education Act did not provide for married
daughter
to
be
included
within
the
definition of 'family' of dependents. While
the petition being Writ-A No. 4553 of 2015
remained
pending
before
this
Court,
against
the
said
order,
the
Vimla
Srivastava's
judgment
(infra)
intervened in which married daughter
was directed to be included and the
relevant provisions not including the
married daughter as the member of
dependent's 'family' of the deceased
was held to be ultra virus.
6 All. Radhika Baghel Vs. State of U.P. & Ors.
633
After the aforesaid judgement Madhyamik
Shiksha Parishad rushed to amend its provision
as contained in Regulation 103 vide gazette
notification dated 06.12.2022 which now
uses the word 'daughter' only which
would
include
both
married
and
unmarried daughters undisputedly. (Para
17, 18, 19)

C. A principle that should be taken as a
rule that a married daughter, if married
during lifetime of her father or mother in
government service, shall always be taken
as dependent upon her husband unless
and until it could be established that even
her husband has not been earning and
both were dependents upon the deceased
at the time of his death. In Indian concept of
'family' a wife is taken to be dependent upon
her husband, if she herself is not employed. So
also the first family members are taken to be
dependents. Likewise even a married daughter
if not having an earning husband may be
dependent, and for this above purpose a
married daughter would fall within the word
'family' so as not to deny her claim for
compassionate appointment. For this purpose, it
would be necessary to examine whether
husband has been gainfully employed and if not
his financial status and the financial status of
the married daughter. (Para 20)

D. It is always to be seen whether even
after a lapse of considerably long period
(like seven years of the death of earning
member as in this case), a family still
needs service for survival or does the
family still need financial help to meet any
crisis more especially in the circumstances
when the widow may be receiving pension
and all the daughters including the
petitioner were married prior to the death
of the employee. The matter is remitted to
the DISs only for the limited purpose to examine
the financial status of the petitioner and that of
her husband. If it is found that the petitioner's
husband is having good financial status in terms
of landed property or otherwise which can be
said to be sufficient enough for the survival of
the family, the petitioner may not be offered
compassionate appointment as a rule. (Para 22)

Upon above parameters, if petitioner stands
successful, she will be offered compassionate
appointment and will not be denied same for
any technicality. Petitioner would also be
required to disclose the entire property of her
husband and also her property that she owns.
(Para 23, 25)

Writ petition disposed of. (E-4)

Precedent followed:

1. Smt. Vimla Srivastava Vs St. of U.P. & anr.,
Writ - C No. 60881 of 2015, decided on
04.12.2015 (Para 5)

2. Seema Gupta Vs St. of U.P. & ors., Writ - A
No. 9842 of 2022, decided on 13.07.2022 (Para
5)

3. Isha Tyagi Vs St. of U.P. & ors., Writ - C
No. 41279 of 2014, decided on 26.08.2014
(Para 7)

4. The Government of India Vs Venkatesh,
decided on 01.03.2019, SLP (C) No. 5810 of
2017 (Para 12)

5. St. of Bengal Vs Devbrat Tiwari & ors.,
decided on 03.03.2023, Civil Appeal Nos. 88428855 of 2022 (Para 12)

Precedent distinguished:

The St. of Mah. & ors. Vs Madhuri Malti Vidhate,
Civil Appeal No. 6938 of 2020, decided on
30.12.2022 (Para 11)

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

1. Counter affidavit filed today is
taken on record.

2. Learned counsel for the petitioner
Sri R.C. Dwivedi submits that he does not
want to file rejoinder affidavit.

3. Heard learned counsel for the
respective parties.
634 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The legal issue that emerges out for
consideration relates to the claim of a
married
daughter
for
compassionate
appointment on the ground that she and her
husband were dependents of the deceased
father who died in harness while working
as Daftari (Class-IV employee) in a
recognized aided Institution.

5. The claim of the petitioner when
was not being considered by the District
Inspector of Schools, she came to file a writ
petition being Writ - A No. 37939 of 2014
which was disposed of on 30.07.2014 with
a direction to the District Inspector of
Schools to take a decision in the matter.
The District Inspector of Schools passed
order on 05.11.2014 rejecting the claim of
the petitioner on the ground that as per
regulation
103
of
Chapter
III
of
Intermediate Education Act, 1921 a married
daughter could not come within the
definition
of
'family'
of
dependents.
Petitioner again came to this Court vide
Writ - A No. 4553 of 2015 which was
disposed
of
with
a
direction
dated
13.09.2022 to decide the claim of the
petitioner afresh in the light of judgment of
Smt. Vimla Srivastava v. State of U.P.
and another (Writ - C No. 60881 of 2015
decided on 04.12.2015) and also a
judgment passed in identically placed one
Seema Gupta, petitioner in Writ - A No.
9842 of 2022, Seema Gupta v. State of
U.P. & 3 Others (decided on 13.07.2022),
the claim of the petitioner has again come
to be rejected.

6. The argument advanced by Shri
Dwivedi, learned counsel appearing for the
petitioner is that in view of the judgment of
Division Bench in the case of Smt. Vimla
Srivastava (supra), presided over by the
Chief Justice Dr. D.Y. Chandrachud (as his
Lordship then was), married daughter has
been taken to be falling within the
definition of the word 'family' on analogy
and analysis of the legal principle discussed
by the Division Bench as under:

"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
6 All. Radhika Baghel Vs. State of U.P. & Ors.
635
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".

7. The Division Bench also relied
upon its earlier judgment in the case of
Isha Tyagi v. State of U.P. & 3 Others,
(Writ - C No. 41279 of 2014, decided on
26.08.2014) wherein, the married daughters
of freedom fighter were directed to be
considered while providing horizontal
reservation in State services and then the
Court held thus:

"It would be anachronistic to discriminate
against married daughters by confining the
benefit of the horizontal reservation in this case
only to sons (and their sons) and to unmarried
daughters. If the marital status of a son does not
make any difference in law to his entitlement or
to his eligibility as a descendant, equally in our
view, the marital status of a daughter should in
terms of constitutional values make no
difference. The notion that a married daughter
ceases to be a part of the family of her parents
upon her marriage must undergo a rethink in
contemporary times. The law cannot make an
assumption that married sons alone continue to
be members of the family of their parents, and
that a married daughter ceases to be a member
of the family of her parents. Such an assumption
is constitutionally impermissible because it is
an invidious basis to discriminate against
married daughters and their children. A benefit
which this social welfare measure grants to a
son of a freedom fighter, irrespective of marital
status, cannot be denied to a married daughter
of a freedom fighter."

8. In view of the above, the Division
Bench struck down as ultra vires the word
'unmarried' in Rule 2(C)3 of the Dying in
Harness Rules. It is thereafter, that the State
Government came to amend the U.P.
Government Servants (Dying in Harness)
Rules,
1974
vide
amendment
dated
12.11.2021. The State Government has also
issued a gazette notification of the
department of Secondary Education vide
Madhyamik
Shiksha
Parishad,
U.P.,
Prayagraj
dated
06.12.2022
amending
Regulation
103
of
Chapter
III
of
Intermediate Education Act, 1921.

9. Now the word 'daughter' has only
been
provided
which
would
include
adopted daughter also. Thus, the word
'daughter'
would
include
naturally
a
married daughter.

10. The law is well settled that once it
comes in the judicial pronouncement of a
Constitutional Court of law holding a
provision to be ultra vires: A), it would be
taken to have never been there; and B)
Whatever is void by ultra vires is void ab
initio/ non est. I hold accordingly on the same
principle as followed in Vimla Srivastava
(supra) the similar provisions contained under
regulations to be ultra vires as it existed under
relevant
regulation
of
Chapter
III
of
Intermediate Education Act, 1921. I find that
for these very reasons analogus provision
contained under the regulations framed under
the Intermediate Education Act, 1921 have
also come to be accordingly amended by the
State Government. Merely because the
regulations did not get amended for want of
such action and the action on the part of
Madhyamik Shiksha Parishad has taken place
after it was held so by a Division Bench of this
Court that a married daughter would also be a
member of the dependents family within the
word 'family', the claim of petitioner as a
married daughter should not have been denied.

11. Two arguments have been
advanced by learned Standing counsel Sri
636 INDIAN LAW REPORTS ALLAHABAD SERIES
Pal, first, the application for compassionate
appointment was highly time barred and
the second one is that recently the Supreme
Court in the case of The State of
Maharashtra & Others v. Madhuri Malti
Vidhate in Civil Appeal No. 6938 of 2020
decided on 30.12.2022 has held that
compassionate appointment is an exception
to the general rule of appointment in public
services in favour of dependents of the
deceased employee who died in harness
and
the
consideration
is
purely
humanitarian in nature with an intention to
provide source of livelihood to the family
who had suddenly landed in financial crisis.
So the purpose, it was held is to enable the
family to tied over sudden crisis and thus it
was held that married daughter cannot be
held to be dependent upon the mother for
the
purposes
of
compassionate
appointment.

12. Learned Standing Counsel has
also relied upon the judgment in the case of
The Government of India v. P. Venkatesh
decided on 01.03.2019 being SLP (C) No.
5810 of 2017 and also the judgment in the
case of State of Bengal v. Devbrat Tiwari
and others decided on 03.03.2023 in Civil
Appeal Nos. 8842-8855 of 2022. Reliance
has been placed upon paragraph nos. 7.1
and 8.

13. Having heard learned counsel for
the respective parties and their arguments
raised across the bar, in my view, the
question
of
denial
of
compassionate
appointment to the applicant/ petitioner in
the instant case cannot be justified on the
ground that she is a married daughter. Once
the State itself has come to accept the
Division Bench judgment of this Court in
the case of Smt. Vimla Srivastava (supra)
so as to amend the U.P. Government
Servants (Dying in Harness) Rules, 1974
and later on also vide gazette notification
on behalf of Madhyamik Shiksha Parishad
amended regulation 103 of Chapter III of
the Intermediate Education Act, it would be
taken that it was always there to be the law
and so the State intended to correct rule/
regulation by incorporating a provision to
include
married
daughter
within
the
meaning of word 'family' of dependents of
deceased employee looking to the judgment
of Division Bench. It has been admitted at
the bar that the said judgment of Smt.
Vimla Srivastava (supra) still holds the
field and SLP preferred against which was
also dismissed.

14. The judgment in the case of State
of Maharashtra (supra) would not be
applicable being distinguishable on facts
because in the present case compassionate
appointment is governed by the rules which
have stood interpreted so by the Division
Bench judgment delivered in the year 2015.
Now the rule in the State of U.P. is that
married daughter would stand included
within
the
definition
of
'family'
of
dependents of a deceased employee who
died in harness for the purposes of
compassionate appointment.

15. It can of course, be pleaded and
validly so that when the provision under which
married daughters have been expressly
excluded in the State of Uttar Pradesh has
been held to be ultra vires and SLP against
such judgment has been dismissed, this should
be taken to be law in the State of Uttar Pradesh
and now the rules have been amended also
suitably. Institutions that receive grant in aid
have been also given benefit of compassionate
appointment in the State on same analogy and
so the regulations have been amended.

16. The plea taken by the State
respondents that at the time when late
6 All. Radhika Baghel Vs. State of U.P. & Ors.
637
employee died and petitioner had applied
rules were not amended would not hold
merit either. In government service or
service in an establishment receiving aid
from State Government in one State would
be governed by same principles of law in
so far as beneficial legislation is concerned.
Identically placed persons cannot be
discriminated against by the same employer
or even by instrumentality of State where
aid is received from the State. Once
division bench held a provision to be ultra
vires it would equally apply to analogues
provisions framed by the same State or its
instrumentalities. So the judgment cited by
learned Standing Counsel is distinguishable
and would not apply to the case in hand.

17. Coming to the question of delay
as involved in the present case, I find that
the petitioner has been pursuing the matter
since the year 2015 itself. Her late father
died in the year 2012 and she came to file
writ petition before this Court as early as in
the year 2014 being Writ - A No. 37939 of
2014 filed on14.07.2014. In the order
passed by the District Inspector of Schools
dated 05.11.2014 he has not taken the
ground of delay, if any, caused by the
present applicant, while rejecting her claim
for compassionate appointment and instead
her claim for compassionate appointment
came to be rejected only on account of the
fact that Regulation 103 of Chapter III of
the Intermediate Education Act did not
provide for married daughter to be included
within
the
definition
of
'family'
of
dependents. While the petition being Writ -
A No. 4553 of 2015 remained pending
before this Court, against the said order, the
Vimla
Srivastava's
judgment
(supra)
intervened in which married daughter was
directed to be included and the relevant
provisions not including the married
daughter as the member of dependent's
'family' of the deceased was held to be ultra
virus.

18. A concurrent Court applied the
principle of Vimla Srivastava's case (supra)
in the case of Seema Gupta v. State of U.P.
& 3 others in Writ - A No. 9842 of 2022. In
the said judgment delivered on 30.07.2022
and
thereafter,
Madhyamik
Shiksha
Parishad rushed to amend its provision as
contained in Regulation 103 vide gazette
notification dated 06.12.2022 which now
uses the word 'daughter' only which would
include
both married
and
unmarried
daughters undisputedly.

19. In this view of the matter,
therefore, I am not impressed with the
argument that the petitioner in any manner
was responsible for delay in applying for
compassionate appointment.

20. However, the argument advanced by
learned Standing Counsel that a principle
that should be taken as a rule that a married
daughter, if married during lifetime of her
father or mother in government service,
shall always be taken as dependent upon
her husband unless and until it could be
established that even her husband has not
been earning and both were dependents
upon the deceased at the time of his death,
holds substance. In Indian concept of
'family' a wife is taken to be dependent
upon her husband, if she herself is not
employed. So also the first family members
are taken to be dependents. Likewise even
a married daughter if not having an earning
husband may be dependent, and for this
above purpose a married daughter would
fall within the word 'family' so as not to
deny
her
claim
for
compassionate
appointment. For this purpose, it would be
necessary to examine whether husband has
been gainfully employed and if not his
638 INDIAN LAW REPORTS ALLAHABAD SERIES
financial status and the financial status of
the married daughter.

21. In such above view of the matter,
therefore, the order passed by the District
Inspector of Schools dated 30.11.2022
impugned in this petition is hereby
quashed.

22. The matter is remitted to the
District Inspector of School only for the
limited purpose to examine the financial
status of the petitioner and that of her
husband. If it is found that the petitioner's
husband is having good financial status in
terms of landed property or otherwise
which can be said to be sufficient enough
for the survival of the family, the petitioner
may
not
be
offered
compassionate
appointment as a rule because it is always
to be seen whether even after a lapse of
considerably long period like seven years
of the death of earning member as in this
case, a family still needs service for
survival or does the family still need
financial help to meet any crisis more
especially in the circumstances when the
widow may be receiving pension and all
the daughters including the petitioner were
married prior to the death of the employee.

23. It is made clear that upon above
parameters, if petitioner stands successful,
she
will
be
offered
compassionate
appointment and will not be denied same
for any technicality.

24. An appropriate decision shall be
taken in the light of observations made
herein above within a period of two months
from the date of production of certified
copy of this order.

25. In this view of the matter,
petitioner would also be required to
disclose the entire property of her husband
and also her property that she owns.

26. With the aforesaid observations
and directions, this petition stands disposed
of.
----------
(2023) 6 ILRA 638
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2023

BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Writ-A No. 5196 of 2023

Smt. Vibha Pandey ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashish Kumar Ojha

Counsel for the Respondents:
C.S.C.

A. Service Law - Assessment - Punishment -
The Uttar Pradesh Government Servants
(Disposal of Representation Against Adverse
Annual Confidential Reports and Allied
Matters) Rules, 1995 - Uttar Pradesh Police
Officers
of
the
Subordinate
Ranks
(Punishment and Appeal) Rules, 1991 -
There is hardly any ground taken up by the
petitioner for challenging the assessment as
made by the Reporting Authority, Reviewing
Authority as well as Accepting Authority
who is the competent authority as defined
under the 1995 Rules. (Para 9)

The authorities relied upon by the petitioner are
entirely on the different footings and are related
to the disciplinary proceedings wherein the
punishment has been awarded and the same
was not mentioned in the 1991 Rules and the
same has been held as illegal. (Para 10)

Whereas the present case is not at all w.r.t. any
punishment, it is only assessment of conduct,