# Smt. Kiran v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 514
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-19
- **Case number:** Writ-A No. 11196 of 2022
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kiran-v-state-of-u-p-ors-49160
- **Pages:** 5

## Headnote

A. Civil Law - Constitution of India, Art. 16
- Compassionate Appointment - Dying in
Harness Rules, 1974 - Married Daughter -
Dying
in
Harness
Rules,
1974
on
04.05.2022 and now married daughters
are
also
entitled
for
compassionate
appointment - However, the Corporation
is governed by its own Polices and
Regulations & that the Board of the
Corporation
has
not
yet
adopted
amendments made in the Rules of 1974 by
the Government in 2021 - compassionate
appointment is an exception to the
general rule of direct recruitment under
Article 16 - No aspirant has a right to
compassionate appointment & it can be
considered only after all the norms laid
down in the State Policies/Regulations are
satisfied by such family members, on the
date of consideration of application, which
has
to
be
strictly
observed
for
1 All. Smt. Kiran Vs. State of U.P. & Ors.
515
consideration of claim for compassionate
appointment (Para 11, 12)

B. Compassionate Appointment - Married
Daughter - Petitioner father was a Class
III employee, who died in harness -
Respondent
Corporation
denied
the
petitioner's claim for compassionate as
she was married daughter, residing at her
matrimonial home, her brother was a
government employee, her sister was also
married to a government employee -
mother of the petitioner was getting
family pension and has also been given all
terminal benefits on the death of his
father - Held - Only because the mother of
the petitioner has started living with the
petitioner and the petitioner's husband in
unemployed, it cannot be said that family
is facing financial crisis - petitioner unable
to show that she was dependent on her
father's income at the time of his death
(Para 16)

Dismissed. (E-5)

List of Cases cited:

## Text

514 INDIAN LAW REPORTS ALLAHABAD SERIES
amongst Senior Homeopathic Medical
Officers also in every district. The
conditions provided in the impugned
Government Order is self defeating and
being arbitrary is hit by Article 14 of the
Constitution of India. Therefore, the
Government Order dated 20.07.2022, is
hereby quashed.

6. Learned Standing Counsel states
that the rules provide sufficient discretion
to the State Government to appoint Senior
Homeopathic Medical Officers, as they
desire, as there is no condition placed in the
rules except for appointing four senior most
persons
as
Deputy
Directors
(Homeopathic). He further submits that the
grade
of
the
Deputy
Directors
(Homeopathic) and District Homeopathic
Medical Officers and Senior Homeopathic
Medical Officers, is the same.

7. I do not find any force in the
submissions of learned Standing Counsel.
To fill up the gap in the rules, the State
Government itself has issued a Government
Order dated 03.01.2017 and filled the said
gap. The procedure provided in the
Government Order 03.01.2017 in itself is
sufficiently provided the procedure which
was not arbitrary and was in consonance of
Article 14 of the Constitution of India.

8. Since the Government Order dated
20.7.2022 is set aside, hence the impugned
order dated 20.07.2022, whereby the
persons have been appointed in furtherance
of the Government Order dated 20.07.2022,
also cannot stand and is hereby set aside.
The State Government is directed to
appoint the persons in accordance with the
Uttar
Pradesh
Homeopathic
Medical
Service Rules, 1990, duly amended from
time to time as well as the Government
Order
dated
03.01.2017.
The
said
modification in the posting shall be made,
positively within a period of four weeks
from today.

9. The writ petition is allowed.
----------
(2023) 1 ILRA 514
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Writ-A No. 11196 of 2022

Smt. Kiran ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pratik Srivastava, Sri Abhishek Bhushan,
Sri Anil Bhushan Sr. Advocate

Counsel for the Respondents:
C.S.C., Sri Abhishek Srivastava, Sri Krishna
Agarwal

A. Civil Law - Constitution of India, Art. 16
- Compassionate Appointment - Dying in
Harness Rules, 1974 - Married Daughter -
Dying
in
Harness
Rules,
1974
on
04.05.2022 and now married daughters
are
also
entitled
for
compassionate
appointment - However, the Corporation
is governed by its own Polices and
Regulations & that the Board of the
Corporation
has
not
yet
adopted
amendments made in the Rules of 1974 by
the Government in 2021 - compassionate
appointment is an exception to the
general rule of direct recruitment under
Article 16 - No aspirant has a right to
compassionate appointment & it can be
considered only after all the norms laid
down in the State Policies/Regulations are
satisfied by such family members, on the
date of consideration of application, which
has
to
be
strictly
observed
for
1 All. Smt. Kiran Vs. State of U.P. & Ors.
515
consideration of claim for compassionate
appointment (Para 11, 12)

B. Compassionate Appointment - Married
Daughter - Petitioner father was a Class
III employee, who died in harness -
Respondent
Corporation
denied
the
petitioner's claim for compassionate as
she was married daughter, residing at her
matrimonial home, her brother was a
government employee, her sister was also
married to a government employee -
mother of the petitioner was getting
family pension and has also been given all
terminal benefits on the death of his
father - Held - Only because the mother of
the petitioner has started living with the
petitioner and the petitioner's husband in
unemployed, it cannot be said that family
is facing financial crisis - petitioner unable
to show that she was dependent on her
father's income at the time of his death
(Para 16)

Dismissed. (E-5)

List of Cases cited:

1. St. of U.P. & anr. Vs Madhavi Mishra & ors.
Special Appeal No. 223 of 2021 dt 23.09.2021

2. The Director of Treasuries in Karnataka &
anr. Vs Somyashree Civil Appeal No. 5122 of
2021 dt 13.09.2021

3. Smt. Vimla Srivastava Vs State of U.P. 2016
1ADJ page No. 21

4. V Sunithakumari Vs K.S.E.B. & ors., 1992 SCC
online KER145

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. Heard learned counsel for the
petitioner and Shri Abhishek Srivastava,
learned
counsel
for
the
contesting
respondents.

2. This petition has been filed
challenging the order dated 25.06.2022
passed by the respondent no. 3 rejecting the
petitioner's application for compassionate
appointment.

3. It is the case of the petitioner that
her father late Girish Chandra was a Class
III employee working in the office of
respondent no. 3 and he died in harness on
15.09.2020, he was survived by his widow
and two daughters and a son. The petitioner
is the second daughter, the first daughter is
married to a government employee working
in Amroha and the son Amit Kumar is a
government
employee
posted
in
Moradabad. Late Girish Chandra was a
permanent resident of Moradabad and
therefore when he died his widow started
living in Moradabad. The petitioner is
married in Moradabad and living with her
in-laws but her husband Rahul Kumar is
un-employed.
The
petitioner's
mother
started living with the petitioner and her
husband and in-laws after the death of her
father and she has been looking after the
widowed mother and therefore, she is
entitled for appointment on compassionate
ground.

4. The petitioner filed an application
for
compassionate
appointment
on
22.04.2022 saying that she is a Graduate
and has "CCC" certificate and therefore,
eligible for appointment on Class III post,
when the petitioner's representation was not
decided, she again made a representation
this time to the Chief Engineer and also to
the Chairman of the Corporation. Now, the
representation of the petitioner has been
rejected by the respondent No. 3, the
Executive
Engineer,
Electricity
Distribution Division, Bijnor on 25.06.2022
by
a
non
speaking
order
without
considering that even a married daughter is
entitled for compassionate appointment, but
by only stating that such a appointment
516 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot be given to the petitioner in view of
the Circular dated 05.07.2012 issued by the
Corporation.

5. It has been submitted by the
counsel for the petitioner that Dying in
Harness Rules, 1974 applicable to U.P.
Government Servants and their Dependents
was amended in the year 2021 on the basis
of judgment rendered by this Court and
confirmed by the Supreme Court and now
even a married daughter is included within
the definition of family.

6. The counsel for the respondent
Nos. 2 to 4 have filed a counter affidavit
wherein they have denied the petitioner's
right for compassionate appointment saying
that the petitioner is married daughter and
residing at her matrimonial home and her
brother is a government employee and her
sister is also married to a government
employee. Only because the mother of the
petitioner has started living with the
petitioner and the petitioner's husband in
unemployed, it cannot be said that family is
facing financial crisis which is necessary
prerequisite for appointment of dependents
of deceased employee on compassionate
ground. The mother of the petitioner is
getting family pension and has also been
given all terminal benefits on the death of
late
Girish
Chandra.
If
the
State
Government has issued any amendment to
the Rules of 1974 they shall not be
automatically applicable to the Corporation
as the employees of Corporation are
governed by their own Rules/Regulations
and Policies framed by the Board of
Directors of the Company.

7. The counsel for the respondents
have placed reliance upon a judgment
rendered by a Division Bench of this Court
in Special Appeal No. 223 of 2021 (State
of U.P. and Another vs. Madhavi Mishra
and 2 Ors.) decided on 23.09.2021 and also
judgment of the Supreme Court in Civil
Appeal No. 5122 of 2021 (The Director of
Treasuries in Karnataka & Anr. vs.
Somyashree) decided on 13.09.2021 to say
that the petitioner not being a dependent on
her deceased father and the family not
being in financial crisis after the death of
the employee her case for compassionate
appointment cannot be considered.

8. Shri Krishna Agarwal, learned
counsel for the respondents says that
mistakenly a separate counter affidavit has
been filed on behalf of respondent No. 3
which may be ignored by this Court as it
shall be governed by the counter affidavit
filed on behalf of the Corporation.

9. Learned counsel for the petitioner
in his rejoinder affidavit has submitted that
the petitioner's father was working as Class
III employee in Bijnor and her two siblings
her sister and her brother are not looking
after their widowed mother. The widowed
mother is living with the petitioner and she
is taking care of the widowed mother and
therefore she is entitled for compassionate
appointment. It has also been submitted in
terms of the judgment of this Court and the
Supreme Court that Dying in Harness
Rules, 1974 have been amended in the
State of U.P. on 04.05.2022 and married
daughters
are
also
entitled
for
compassionate appointment. A copy of the
amended
Government
Order
dated
04.05.2022 has been filed as R.A.-1 to the
rejoinder affidavit.

10. This Court having perused the
notification dated 04.05.2022, finds that it
refers to entitlement are of married
daughters and also widowed daughter-inlaws and clarifies that the 12th Amendment
1 All. Smt. Kiran Vs. State of U.P. & Ors.
517
to the Dying in Harness Rules, 1974 shall
be applicable with effect from 1993. It has
also clarified that the State Government in
cases of genuine difficulty may condone
the delay in filing an application for
compassionate appointment beyond 5 years
also.

11. This Court after going through the
Circular issued by the Corporation is
clearly of the opinion that the Corporation
is governed by its own Polices and
Regulations. The Board of the Corporation
has not yet adopted amendments made in
the Rules of 1974 by the Government in
2021. That apart, the petitioner has been
unable to show that she was dependent on
her father's income at the time of his death.
It is apparent from the pleading on record
that her elder sister is married to a
government employee living in Amroha.
The
petitioner's
brother
is
also
a
government employee in Moradabad. The
widowed mother of the petitioner for
reasons best known to the family has not
been residing with her employed son. After
getting
family
pension
and
terminal
benefits of late Girish Chandra she has
chosen to go and live in the matrimonial
home of the petitioner, may be because the
petitioner's
husband
is
allegedly
unemployed, and it is the family pension of
the widowed mother which is being used
for taking care of the petitioner and her
unemployed husband.

12. This Court has also gone through
the judgment rendered by the Division
Bench of this Court in Second Appeal No.
223 of 2021 (Supra) where this Court
having considered the case of Smt. Vimla
Srivastava vs. State of U.P. 2016 1ADJ
page No. 21 and the amendment to the
definition of family carried out by State
Government thereafter, has taken into
account the criteria for compassionate
appointment to dependents of deceased
employees. It has been observed by the
Division Bench that the death of the wage
earner
during
service
will
entitle
dependents for compassionate appointment
only in case the family members were
dependent upon the income of the wage
earner and would face financial crisis in the
absence of any one to look after them. This
Court had placed reliance upon the
judgment of Supreme Court in The
Director of Treasuries in Karnataka &
Anr.
vs.
Somyashree
decided
on
13.09.2021 where the Supreme Court had
observed that compassionate appointment
is an exception to the general rule of direct
recruitment under Article 16 of the
Constitution of India. No aspirant has a
right to compassionate appointment. In
case compassionate appointment is sought
by family member of deceased employee it
can be considered only after all the norms
laid down in the State Policies/Regulations
are satisfied by such family members. The
norms
prevailing
on
the
date
of
consideration of application shall be strictly
observed for consideration of claim for
compassionate appointment.

13. The Division Bench after
considering the facts in the case of State of
U.P. and Another vs. Madhavi Mishra
(supra) observed that nowhere in her
application Madhavi Mishra had disclosed
any fact about her mother getting family
pension and as to how she was dependent
on her father even after her marriage. The
object of the scheme was to provide
employment to the unemployed member of
the deceased employee who died in
harness. Only because the married daughter
has not been excluded from the definition
of family now, it could not be said that
Smt. Madhavi Mishra was in anyway
518 INDIAN LAW REPORTS ALLAHABAD SERIES
dependent on her father after her marriage.
The law enjoins that it is duty of the
husband to maintain his wife and enables
her to claim alimony in case he refuses to
maintain her. Therefore, the dependency on
the father ceases the moment the daughter
is given in marriage and that is the
justification
for
excluding
married
daughters from the category of dependents.

14. The Court also considered
judgment rendered by the High Court of
Kerela
in
a
similar
case
in
V
Sunithakumari vs. K.S.E.B. and Others,
1992 SCC online KER145

15. The Division Bench thereafter
observed in the case of Madhavi Mishra
(Supra) that petitioner cannot claim for
compassionate appointment as a matter of
right specially when she has deliberately
omitted to mention eligibility of her mother
to get family pension, thus not leaving her in
penury and also not making her dependent on
the present applicant. There is the tradition
also that a married daughter is dependent on
her husband and not on her father.

16. This Court has gone through the
pleadings on record and finds that there is
no pleading regarding the mother of the
petitioner getting family pension and other
terminal benefits on the death of late Girish
Chandra. There is also no denial of such a
statement made by the respondents in their
counter affidavit in the rejoinder affidavit
filed by the petitioner. It has not come out
from the pleadings that the petitioner was
in anyway dependant on the income of her
father at the time he was alive. Only
because the husband of the petitioner is
allegedly unemployed and the mother of
the petitioner is living with the petitioner
and her husband and in-laws in petitioner's
matrimonial home, it cannot be said that
the
petitioner
has
any
right
for
compassionate appointment.

17. This Court finds no good ground
to show interference in the order impugned.
The writ petition stands dismissed.

18. No order as to cost.
----------
(2023) 1 ILRA 518
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Writ-A No. 15733 of 2022

Khalifa Ram Chauhan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manoj Kumar Singh, Sri Awadhesh
Kumar Malviya

Counsel for the Respondents:
C.S.C., Sri Omkar Dutt Malviya

A. Civil Law - Constitution of India, Art.
226 - Code Of Civil Procedure, 1908 -
Allahabad High Court Rules 1952, Rule 7
of Chapter XXII - Second Writ petition -
maintainability - principles of Order II
Rule 2 & constructive res judicata would
apply to writ jurisdiction - If a plea could
have
been
taken
by
a
party in
a
proceeding
between
him
and
his
opponent, he would not be permitted to
take that plea against the same party in a
subsequent proceeding which is based on
the same cause of action - Even if the
petitioner has withdrawn the earlier writ
petition or it is dismissed as infructuous,
without leave to file a fresh petition, a
second writ petition for the same cause of
action is not maintainable - Once the relief
is framed in a particular manner in one