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

- **Citation:** (2021) 10 ILRA 699
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-03
- **Case number:** Writ A No. 12665 of 2021
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/seema-devi-v-state-of-u-p-ors-46404
- **Pages:** 6

## Headnote

Law
-
Compassionate
appointment
-
U.P.
Recruitment
of
Dependants
of
Government
Servants
(Dying-in-Harness) Rules, 1974 - Rule
2(a) & 2(c) - The expression "unmarried" in
Rule 2(c) has been struck down by this Court as
constitutionally invalid, "daughters" per se,
irrespective of whether they were married or
divorced, would be entitled to be recognised as
being entitled to claim the benefit of the 1974
Rules. This, of course, subject to the well
accepted caveat that they would, like sons, have
to establish a position of financial dependency
at the time of the untimely demise of the
government servant. (Para 13)

Matter remitted to consider the claim of
the
petitioner
afresh.
Writ
petition
allowed. (E-4)

Precedent cited:
700 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

10 All. Seema Devi Vs. State of U.P. & Ors.
699
raised by the claimant/respondent in its
reply to the show cause notice, the
Disciplinary Authority has passed the order
of punishment, which has been challenged
by the claimant/respondent in Claim
Petition No. 253 of 2018. The Tribunal has
also found that so far as delayed payment
of the license fee is concerned, the Excise
Commissioner had fixed 15.04.2015 for
deposition of the license fee and prior to it,
the claimant/respondent has deposited the
license fee. The Tribunal has also opined
that the punishment order is against the
principle of natural justice. In these
backgrounds, vide impugned order, the
Tribunal allowed the claim petition and
quashed the order of punishment with a
direction that if any service benefits if
withheld on account of the punishment
order
dated
30.11.2017,
the
claimant/respondent is entitled to get the
same, in accordance with law."

10. I have perused the impugned
order in the present case. After having
disagreement
with
inquiry
report,
Disciplinary Authority has passed order for
re-inquiry, but no reason has been assigned
and nothing has been stated as to why
reason has not been recorded. Rule 9(2) of
the Rules, 1999 clearly provides that in
case of disagreement with inquiry report
and passing order for re-inquiry, it is
required on the part of Disciplinary
Authority to give his own finding i.e.
reason has to be recorded, therefore, order
is contrary to the Rule 9 (2) of Rules, 1999
and is liable to be set aside.

11. Therefore, under such facts and
circumstances of the case, Rule 9 (2) of
Rules, 1999 as well as pronouncement
made by this Court, impugned order dated
03.06.2021 passed by respondent No. 2 is
hereby quashed.

12. With the aforesaid observations,
writ petition is allowed.

13. However, respondents are at
liberty to pass fresh order strictly in
accordance with Rule 9 (2) of Rules, 1999
after giving opportunity to the petitioner.
----------
(2021)10ILR A699
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2021

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Writ A No. 12665 of 2021

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

Counsel for the Petitioner:
Sri Manoj Kumar Patel

Counsel for the Respondents:
C.S.C., Sri Dhamendra Pratap Singh

A.
Service
Law
-
Compassionate
appointment
-
U.P.
Recruitment
of
Dependants
of
Government
Servants
(Dying-in-Harness) Rules, 1974 - Rule
2(a) & 2(c) - The expression "unmarried" in
Rule 2(c) has been struck down by this Court as
constitutionally invalid, "daughters" per se,
irrespective of whether they were married or
divorced, would be entitled to be recognised as
being entitled to claim the benefit of the 1974
Rules. This, of course, subject to the well
accepted caveat that they would, like sons, have
to establish a position of financial dependency
at the time of the untimely demise of the
government servant. (Para 13)

Matter remitted to consider the claim of
the
petitioner
afresh.
Writ
petition
allowed. (E-4)

Precedent cited:
700 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Smt. Vimla Srivastava Vs St. of U.P. & anr.,
2016 (1) ADJ 21 (DB) (Para 2)

2. State of U.P. & ors. Vs Noopur Srivastava,
2019 (2) ADJ 585 (Para 2)

Precedent distinguished:

1. The Director of Treasuries in Karnataka &
anr. Vs V. Somyashree - Civil Appeal No. 5122
of 2021 (Para 3)

(Delivered by Hon'ble Yashwant Varma, J.)

1. Heard learned counsel for the
petitioner and Sri Chandan Kumar learned
Standing Counsel for the State respondents.

2. The present petition challenges an
order of 24 May 2021 pursuant to which the
respondents have proceeded to reject the
application of the petitioner for being
accorded appointment on compassionate
grounds holding that a divorced daughter
would not fall within the ambit of the 1974
Rules.
The
petitioner
questions
the
correctness of that view taken firstly on the
ground that under the 1974 Rules the
expression "unmarried" as prefixed to the
word "daughter" already stands struck down
by the Court in Smt. Vimla Srivastava v.
State of U.P. and Another1. According to
learned counsel, the definition of family as
employed in the 1974 Rules is thus liable to
be read as encompassing daughters per se of
the
deceased
government
servant.
Additionally,
learned
counsel
for
the
petitioner draws the attention of the Court to
the decision of the Court in State of U.P.
And Others v. Noopur Srivastava2 wherein
it was specifically held that a divorced
daughter would fall within the ambit of the
1974 Rules. Dealing with that question the
Division Bench in Noopur Srivastava held
thus:-

"23. Further, under Rule 2 (c) of
Rules of 1974 there is no express exclusion
that a "divorced daughter" is not entitled to
appointment under the Rules nor the
expression "Unmarried" daughter has been
clarified by putting the words to the effect
that it means a "daughter never married" or
"daughter not married" and being so the
secondary meaning of term "Unmarried"
cannot be ignored and is liable to be taken
into account in the given circumstances in
context of beneficial legislation i.e. Rules
of 1974.

24.On the basis of aforesaid
discussion in the context of Rules of 1974,
we hold that the expression "divorced
daughter"
is
included/implicit
in
the
expression
"Unmarried
daughter".
Accordingly we hold that a "divorced
daughter" is entitled to compassionate
appointment if she was dependant, on the
date of death of her father/mother (the
employee) and the marriage was dissolved
legally either prior to or after the date of
death of bread earner of the family and she
remains "not married" at the time of
appointment.

25.In addition, the judgment
dated 4.7.2011 passed in Writ Petition No.
2707 (SS) of 2004 (Gudiya Awasthy v.
State of U.P. was challenged in the Special
Appeal No. 19 of 2012 and this Court vide
judgment dated 4.9.2018 has set aside the
judgement dated 04.07.2011 and being so,
no reliance can be placed on the judgment
dated 04.07.2011 as the effect of setting
aside a judgment in the eye of law is that,
the judgment which has been set aside is
not in existence and a judgment/order by
which the judgment is set aside would be
the
operative
decision
in
the
case.
According to doctrine/principle of "merger"
original decision merges in appellate
decision. The logic underlying the doctrine
of merger is that there cannot be more than
10 All. Seema Devi Vs. State of U.P. & Ors.
701
one decree or order governing the same
subject matter at a given point of time.
Thus, judgment dated 04.07.2011 passed in
Gudiya Awasthy's case is liable to be
ignored and argument based on the same
are not sustainable and liable to be
rejected."

3. Sri Chandan Kumar learned
Standing Counsel, on the other hand, drew
the attention of the Court to a recent
decision of the Supreme Court in The
Director of Treasuries in Karnataka And
Another v. V. Somyashree3 to contend
that the aforesaid decision of the Supreme
Court is a binding authority in support of
the proposition that a divorced daughter
cannot claim benefits of compassionate
appointment.

4. It is these rival submissions which
fall for consideration. Before proceeding to
consider the merits of the submission of the
State resting on V. Somyashree, it would be
appropriate to briefly advert to the legal
position as enunciated by this Court dealing
with the provisions of the 1974 Rules.

5. It may at the outset be noted that
insofar as our 1974 Rules are concerned,
the question posited stands answered in
unequivocal terms in favour of the
petitioner in light of the decision in
Noopur Srivastava. The Division Bench
has taken into consideration the fact that
Rule 2(c) does not expressly exclude a
divorced daughter. The Court proceeded to
hold that a divorced daughter would
implicitly
fall
within
the
expression
"unmarried daughter". It becomes relevant
to note that under the 1974 Rules as they
stood at the time of introduction of the
Eighth
Amendment
to
those
Rules
[published on 9 February 2007], only
unmarried and widowed daughters stood
included in the definition of family.
Subsequently and in terms of the Ninth
Amendment to those Rules [published on
22 December 2011], unmarried daughters,
unmarried adopted daughters, widowed
daughters and widowed daughters-in-law
were brought within the sweep of the
expression "family". Rule 2 (c ) in its form
as noticed above was what fell for
consideration in Vimla Srivastava. In
order to understand the import and essence
of that decision, the Court deems it
apposite to refer to the following extracts:-

9.....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''.

6. The Court then went on to hold:-

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
702 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

7. The fundamental precept which
forms
the
foundation
of
Vimla
Srivastava is of the daughter being
constitutionally empowered to avail of
the same benefits as would extend to a
son. The Court, as a corollary to the
above, held that a daughter cannot be
denied rights and benefits flowing from
the 1974 Rules merely based on the
circumstance
of
marriage.
More
importantly and for the purposes of the
present matter, it becomes pertinent to
highlight that while expounding upon the
various circumstances where the statutory
definition would result in invidious
discrimination, the Court specifically
took note of a situation where a daughter
separated after marriage, may have been
staying
with
her
parents
and
was
financially dependent upon them.

8. The principles as enunciated in the
aforesaid two decisions would clearly
establish that a divorced daughter cannot be
denied the benefits enshrined in the 1974
Rules. That takes the Court to consider the
impact of the decision of the Supreme
Court in V. Somyashree.

9. It becomes pertinent to note that in
the aforesaid decision, the Supreme Court
was dealing with the provisions made in
Rules 2 and 3 of the Karnataka Civil
Services (Appointment on compassionate
Grounds) Rules 19964. Rule 2 of the
1996 Rules defined the word "dependent"
in the following terms:-

"2. Definitions:(1) In these rules,
unless the context otherwise requires:

(a) "Dependent of a deceased
Government servant" means-

(i) in the case of deceased male
Government servant, his widow, son,
(unmarried
daughter
and
widowed
daughter) who were dependent upon him;
and were living with him; and
10 All. Seema Devi Vs. State of U.P. & Ors.
703

(ii) in the case of a deceased
female Government servant, her widower,
son, (unmarried daughter and widowed
daughter) who were dependent upon her
and were living with her;

(iii) 'family' in relation to a
deceased Government servant means his or
her spouse and their son, (unmarried
daughter and widowed daughter) who were
living with him.

(2) Words and expressions used
but not defined shall have the same
meaning assigned to them in the Karnataka
Civil
Services
(General
Recruitment)
Rules, 1977."

10. The Supreme Court thereafter
proceeded to hold as follows:-

"8.1 From the aforesaid rules it
can be seen that only 'unmarried daughter'
and
'widowed
daughter'
who
were
dependent upon the deceased female
Government servant at the time of her
death and living with her can be said to be
'dependent' of a deceased Government
servant and that 'an unmarried daughter'
and 'widowed daughter' only can be said to
be
eligible
for
appointment
on
compassionate ground in the case of death
of the female Government servant. Rule 2
and Rule 3 reproduced hereinabove do not
include 'divorced daughter' as eligible for
appointment on compassionate ground and
even
as
'dependent'.
As
observed
hereinabove and even as held by this Court
in the case of N.C. Santhosh (Supra), the
norms
prevailing
on
the
date
of
consideration of the application should be
the basis of consideration of claim for
compassionate appointment. The word
'divorced
daughter'
has
been
added
subsequently
by
Amendment,
2021.
Therefore, at the relevant time when the
deceased employee died and when the
original writ petitioner- respondent herein
made an application for appointment on
compassionate
ground
the
'divorced
daughter' were not eligible for appointment
on compassionate ground and the 'divorced
daughter' was not within the definition of
'dependent'."

11. In order to ascertain the ratio of V.
Somyashree, it becomes important to note
that the same essentially turned upon the
language employed in Rule 2(a) of the
Karnataka Rules which only brought an
unmarried and widowed daughter within
their scope and the ambit of the scheme for
compassionate appointment. It was in the
aforesaid backdrop and since a divorced
daughter had not been specifically added in
the definition of "dependent" that the
Supreme Court upheld the contention that a
divorced daughter could not be extended
the
benefits
of
compassionate
appointment. The decision is also liable to
be viewed in the context of the 2021
amendment which was introduced in the
Karnataka Rules in terms of which a
divorced
daughter
was
specifically
included in the definition of "dependent"
subsequently. The Supreme Court thus
came to conclude that since a divorced
daughter did not stand included in the
definition of dependent at the time when
the government servant died and the
application was made, appointment on
compassionate grounds could not be
claimed.

12. Regard must also be had to the
fact that the 1974 Rules post the decision in
Vimla Srivastava, are liable to be
interpreted with the Court necessarily
proceeding on the basis that the word
"unmarried" stands deleted and effaced. In
704 INDIAN LAW REPORTS ALLAHABAD SERIES
light
of
the
judicial
declaration
of
invalidity, it would be deemed to have
never existed on the statute book. Viewed
in that light also it is manifest that the
decision of the Supreme Court in V.
Somyashree is clearly distinguishable since
there the Court was called upon to render
judgment in light of the Karnataka Rules as
they stood and in the absence of any
challenge to the constitutional validity of
those provisions.

13. The undisputed position which
thus emerges from the aforesaid discussion
is that consequent to the expression
"unmarried" as appearing in Rule 2 (c)
being struck down by this Court as
constitutionally invalid, "daughters" per se,
irrespective of whether they were married
or divorced, would be entitled to be
recognised as being entitled to claim the
benefit of the 1974 Rules. This, of course,
subject to the well accepted caveat that they
would, like sons, have to establish a
position of financial dependency at the time
of the untimely demise of the government
servant. In light of the position in law as
found by the Court, learned Standing
Counsel submitted that the ends of justice
would merit the matter being remitted to
the third respondent to consider the claim
of the petitioner afresh.

14. Accordingly the writ petition is
allowed. The impugned order of 24 May
2021 is hereby quashed. The matter shall
stand remitted to the third respondent for
considering the claim of the petitioner
afresh. It is only clarified that this Court
has interfered with the impugned order
solely on the grounds and for the reasons
noted above. All other aspects germane to
the consideration of grant of compassionate
appointments
which
would
include
consideration of factors such as a situation
of financial despondency as well as the
petitioner being dependent of the deceased
government servant are left open to be
considered
independently
by
the
respondents.
----------
(2021)10ILR A704
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.10.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE SURESH KUMAR GUPTA, J.

Land Acquisition No. 22953 of 2021

Radhey Shyam ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Abhay Raj Singh

Counsel for the Respondents:
C.S.C., A.S.G., Sarvesh Kumar Dubey

A. Civil Law - Land acquisition
-
Payment of compensation - National
Highways Act, 1956 - Sections 3G(5) &
3H - Arbitration and Conciliation Act,
1996 - Sections 34 & 36 - National
Highways (manner of depositing the
amount by the Central Government;
making requisite funds available to the
competent authority for acquisition of
land) Rules, 2019 - Rule 3.

Section 3H of the Act, 1956 read with the
aforesaid Rules, 2019 themselves contain
a mechanism for payment of the amount
awarded by the Arbitrator and as such
recourse to Section 36 of the Act, 1996 Act
may not be necessary. Remedy u/s 36 of the
Act 1996 would not apply at least at this stage
of the case. Of course, in the event the award
of the Arbitrator is challenged u/s 34 of the Act,
1996, then, the withdrawal and disbursement as
envisaged in Rule 3 of Rules, 2019 may not take
place. (Para 7, 8)