# Smt. Manjul Srivastava v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 1106
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-15
- **Case number:** Writ-A No. 10928 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-manjul-srivastava-v-state-of-u-p-ors-46101
- **Pages:** 6

## Headnote

Civil Law-Compassionate AppointmentClaim
for
appointment
rejected
on
ground
that
married
daughter
not
included in family u/s 2 (c) (iii) of The
Uttar
Pradesh
Recruitment
of
Dependents of Government Servants
Dying in Harness Rules, 1974-definition
of daughter to be read unqualified by
the marital status of the daughterimpugned order is illegal.

W.P. allowed. (E-7)

List of Cases cited: -

## Text

1106 INDIAN LAW REPORTS ALLAHABAD SERIES

13. The writ petition is accordingly
allowed.
----------
(2021)01ILR A1106
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 10928 of 2020

Smt. Manjul Srivastava ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ghan Shyam Maurya

Counsel for the Respondents:
C.S.C., Sri Arun Kumar

Civil Law-Compassionate AppointmentClaim
for
appointment
rejected
on
ground
that
married
daughter
not
included in family u/s 2 (c) (iii) of The
Uttar
Pradesh
Recruitment
of
Dependents of Government Servants
Dying in Harness Rules, 1974-definition
of daughter to be read unqualified by
the marital status of the daughterimpugned order is illegal.

W.P. allowed. (E-7)

List of Cases cited: -

1. Smt. Vimla Srivastava Vs St. of U.P. & anr.,
2016 (1) ADJ 21

2.Smt. Neha Srivastava Vs St. of U.P. & anr., Spl.
Appl. (Defective) No. 863 of 2015, decided on
23.12.2015

3. Saghir Ahmad Vs St. of U.P. & ors., AIR 1954
SC 728

4. Deep Chand & ors. Vs St. of U.P. & ors., AIR
1959 SC 648
5. Mahendra Lal Jaini Vs St. of U.P. & ors., AIR
1963 SC 1019

6. The St. of Guj. & anr. Vs Shri Ambica
Mills Ltd., Ahmedabad & anr., (1974) 4 SCC
656

7. Sh. P.L. Mehra Vs Sh. D.R. Khanna, AIR 1970
Del 1

8. A.K. Gopalan Vs St. of Mad., AIR 1950 SC 27

9. D.S. Nakara & ors. Vs U.O.I., AIR 1983 SC
130

10. State of Bombay & anr. Vs F.N. Balsara, AIR
1951 SC 318

11.Minerva Mills Ltd. & ors. Vs U.O.I.& ors.,
(1980) 3 SCC 625

12. Kihoto Hollohan Vs Zachillhu & ors., (1992)
Supp (2) SCC 651

(Delivered by Hon'ble J.J. Munir, J.)

1. The petitioner, Manjul Srivastava
has impugned an order of June the 25th,
2020,
passed
by
the
District
Basic
Education Officer, Prayagraj, rejecting her
claim for compassionate appointment under
The
Uttar
Pradesh
Recruitment
of
Dependents of Government Servants Dying
in Harness Rules, 1974 (for short, ''the
Rules).

2. A counter affidavit has been filed
on behalf of respondent nos. 2 and 3, which
is taken on record.

3. Mr. Sharad Chandra Upadhyay,
learned State Law Officer, was granted
time to file a short counter affidavit. He has
not come up with any return.

4. Admit.

5. Heard forthwith.
1 All. Smt. Manjul Srivastava Vs. State of U.P. & Ors.
1107

6. Heard Mr. Ghan Shyam Maurya,
learned Counsel for the petitioner, Mr. Arun
Kumar, learned Counsel appearing on
behalf of respondent nos.2 and 3 and Mr.
Sharad Chandra Upadhyay, learned State
Law Officer appearing on behalf of
respondent no.1.

7. The question, that arises for
consideration
here,
is:
"Whether
the
judgment of this Court in Smt. Vimla
Srivastava vs. State of U.P. and another1,
striking down the word ''unmarried' in Rule
2(c) (iii) of the Rules, entitles a married
daughter to a consideration of her claim
for compassionate appointment without an
amendment to the Rules made by the State
Government, expressly including ''married
daughter' in the expression ''family',
defined under Rule 2(c)?

8. The petitioner's mother, the late
Pushpa Srivastava was inducted as an
Assistant Teacher in the services of the
Basic Education Board and appointed at the
Primary School, Chaka, District Prayagraj.
She was serving as the Headmistress of the
School, last mentioned, when she passed
away on 09.11.2016. She was a permanent
employee and the sole bread winner of the
family, comprising her husband, Vijay
Kumar Srivastava, aged about 63 years and
three married daughters: Parul Srivastava,
Manjul Srivastava and Manshi Srivastava,
aged about 32 years, 30 years and 28 years,
in that order. The petitioner's mother died
in harness, it is claimed on account of a
heart attack.

9. It is the petitioner's case that their
family have become financially crippled.
They were totally dependent on the
deceased teacher because the petitioner's
father and the deceased's husband is an
unemployed man. In consequence, the
family have plunged into a sudden
economic crisis. The petitioner is also
unemployed. She, therefore, applied for
compassionate appointment on the post of
an Assistant Teacher in the Primary School,
where her mother served. The petitioner
asserts that she holds the necessary
educational and other qualifications to be
appointed as an Assistant Teacher. The
petitioner holds degrees of Bachelor of Arts
and Bachelor of Education. She has also
passed the Uttar Pradesh Teacher Eligibility
Test, 2018 for the Primary Level. The
petitioner has placed on record photostat
copies of her certificates and degrees,
which the Court has perused.

10. It is the petitioner's further case
that she submitted an application for
consideration of her candidature under the
Rules on 17.07.2019 in the office of the
District Basic Education Officer, Prayagraj.
The application is accompanied by all
requisite documents. It is duly certified by
the Headmistress, Primary School, Chaka,
Prayagraj. The
petitioner's
claim
for
compassionate appointment has come to be
rejected by an order dated 25.06.2020
passed by the District Basic Education
Officer, Prayagraj on the sole ground that a
married
daughter
of
a
deceased
Government servant is not included in the
definition of the family of the deceased
under the Rules, as amended by the 9th
Amendment Rules, 2011, carried in the
Government Order no.6/12/73/ िासमवि-2/
2011-TC, Lucknow, dated 22.12.2011,
issued by the Government of U.P. in the
Department of Personnel, Anubhag-2.

11. Aggrieved, this writ petition has
been instituted.

12. Mr. Ghan Shyam Maurya, learned
Counsel for the petitioner submits that the
1108 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned order passed by the District
Basic Education Officer is manifestly
illegal as it denies the petitioner's claim in
violation of this Court's judgment in Smt.
Vimla Srivastava (supra). He has drawn
the attention of this Court to the holding
and the declaration in Smt. Vimla
Srivastava by a Division Bench of this
Court, where it was held that exclusion of
married daughters from the definition of
''family' carried in Rule 2(c) of the Rules
was unconstitutional and violative of
Articles 14 and 15 of the Constitution. By
the judgment in Smt. Vimla Srivastava,
the word ''unmarried' occurring in Rule 2(c)
(iii) of the Rules, was struck down by this
Court. Mr. Maurya, learned Counsel says
that once the word ''unmarried' occurring in
Rule 2(c) (iii) of the Rules has been struck
down as unconstitutional, it no longer
survives on the Statute Book. According to
him, the Rules, as they stand, do not require
any further amendment to consider a
married daughter's right to compassionate
appointment. He urges, therefore, that the
impugned order founded on the definition
of family, occurring in Rule 2(c) (iii) of the
Rules, ignoring the judgment of this Court
in Smt. Vimla Srivastava, which has
struck
down
the
word
''unmarried'
qualifying the word ''daughter' is illegal,
inasmuch as a provision of a statute,
statutory rule or even a Government Order,
that is struck down, cannot be treated as a
subsisting provision to decide rights of
citizens or parties by Authorities of the
State.

13. Mr. Sharad Chandra Upadhyay,
learned State Law Officer, on the other
hand, has taken a stand, in which he is
wholeheartedly joined by Mr. Arun
Kumar, learned Counsel appearing for
the Secretary, Basic Education Board,
U.P., Prayagraj and the District Basic
Education Officer, Prayagraj, that the
impugned order proceeds on valid
ground and ought not to be disturbed.
Mr. Upadhyay and Mr. Arun Kumar
submit
that
notwithstanding
the
declaration made by this Court that
Section 2(c) (iii) is unconstitutional and
void to the extent that it carries the
word ''unmarried', qualifying the word
''daughter',
an
unmarried
daughter
cannot be considered for compassionate
appointment,
unless
the
State
appropriately amends the provisions of
Rule 2(c) in accordance with the
judgment of this Court.

14.

What
in
substance
Mr.
Upadhyay and Mr. Arun Kumar submit
is that a decision of this Court, striking
down
a
particular
provision
as
unconstitutional, would not ipso facto
operate unless suitably given effect to
by amending the relevant statutory
provision. They do not dispute the fact
that the State is under an obligation to
amend the Rules to bring it in accord
with this Court's judgment in Smt.
Vimla Srivastava (supra), but say that
so long as an appropriate amendment is
not made, no rights can be founded by
the petitioner on the Rules, as if the
Rules stand amended by this Court's
judgment.

15.

This
Court
has
keenly
considered the matter. The decision of
their Lordships of the Division Bench
in Smt. Vimla Srivastava (supra) held
the provisions of Rule 2(c) (iii) of the
Rules to be unconstitutional and struck
it down in the following terms:

"In conclusion, we hold that the
exclusion of married daughters from the
ambit of the expression "family" in Rule 2
1 All. Smt. Manjul Srivastava Vs. State of U.P. & Ors.
1109
(c) of the Dyingin-Harness Rules is illegal
and unconstitutional, being violative of
Articles 14 and 15 of the Constitution.

We, accordingly, strike down the word
'unmarried' in Rule 2 (c) (iii) of the Dyingin-Harness Rules."

16. The order in that decision, that
was made inter partes reads thus:

"In consequence, we direct that the
claim of the petitioners for compassionate
appointment shall be reconsidered. We
clarify that the competent authority would
be at liberty to consider the claim for
compassionate appointment on the basis of
all the relevant facts and circumstances and
the petitioners shall not be excluded from
consideration only on the ground of their
marital status."

17. The decision of the Division
Bench in Smt. Vimla Srivastava was
followed by another Division Bench of this
Court in Smt. Neha Srivastava v. State of
U.P. & Another2.

18. The Rules are framed under the
proviso to Article 309 of the Constitution
and confer on the family members of a
Government servant, who has died in
harness, a right to be considered for
compassionate appointment. There is no
cavil about the issue that the Rules,
including Rule 2(c) (iii) is law within the
meaning
of
Article
13(2)
of
the
Constitution. The judgment of this Court in
Smt. Vimla Srivastava (supra), makes an
unqualified declaration "that the 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" to borrow
the words of their Lordships of the Division
Bench. This declaration has not been
disturbed by the Supreme Court in
Petition(s) for Special Leave to Appeal (C)
No(s). 22646/2016 (carried from the
decision
in
Smt.
Neha
Srivastava
(supra)), where Leave to Appeal has been
denied vide order dated 23.07.2019. The
declaration is wholesome and unqualified,
followed by a formal order striking down
the word ''unmarried' occurring in Rule 2(c)
(iii) of the Rules. The principle is well
settled that once a statute, particularly, a
post Constitution Statute, governed by
Clause (2) of Article 13, is declared
unconstitutional for the violation of a
fundamental right, it is rendered void. It is
for all purposes rendered completely
ineffectual, even if it lingers on, on the
Statute Book as a dead letter. This issue has
been the subject matter of pronouncement
by high authority in the Constitution Bench
decisions of the Supreme Court in Saghir
Ahmad v. State of U.P. & Others3, Deep
Chand & Others v. State of U.P. &
Others4, Mahendra Lal Jaini v. State of
U.P. & Others5 and The State of Gujarat
& Another v. Shri Ambica Mills Ltd.,
Ahmedabad & Another6. It has also
engaged attention of the Full Bench of
Delhi High Court in Sh. P.L. Mehra v. Sh.
D.R. Khanna7. The broad principle
deducible is that a post Constitution statute
declared void for contravening a Part III
right is rendered completely unenforceable.
These subtle aspects, if any, about the
difference in the statute (a post Constitution
law) being declared void on account of
violation of a fundamental right on one
hand and legislative competence on the
other, need not trouble this Court, for they
do not arise on the facts here.

19. If Mr. Upadhyay's submissions
were to be regarded as one's advanced to
bring home the distinction between the
1110 INDIAN LAW REPORTS ALLAHABAD SERIES
effect of a statute declared void for the
violation of a fundamental right on one
hand and legislative competence on the
other, this Court has found it not to arise on
facts because the petitioner here is also a
citizen of India, whose fundamental right
against discrimination on the ground of sex
alone is equally infringed as that of the
petitioners in Smt. Vimla Srivastava and
Neha Srivastava. To all intents and
purposes, Rule 2(c) (iii) of the Rules has
been
declared
void
in
Smt.
Vimla
Srivastava
and
followed
in
Neha
Srivastava. That declaration operates in
rem. Thus, in the definition of ''family'
occurring under Section 2(c) (iii), the word
''daughter' is to be read without the prefixed qualification ''unmarried'. The effect
of the declaration, therefore, is that the
Rule is to be read as one including
''daughter' in Rule 2(c) (iii), whether
married or unmarried.

20. The submission of Mr. Upadhyay,
if
it
were
to
deserve
any
serious
consideration, would amount to accepting
an almost insurmountable inhibition on the
jurisdiction of this Court to declare an
unconstitutional
statute
or
statutory
provision void for contravening a Part III
right. A judgment of the Court declaring a
statute void for the contravention of a
fundamental right works to grant a
declaration proprio vigore, rendering the
provision invalidated; effaced for all intents
and purposes. It does not certainly require a
legislative compliance to give it effect.
There could be some sense to that
submission if after ignoring the word
''unmarried' occurring in Rule 2 (c) (iii) of
the Rules, the provision had become
workable. But, that it has not become. The
word ''unmarried' has been struck down,
applying
the
reputed
doctrine
of
severability, that has always had approval
of their Lordships of the Supreme Court.
That doctrine has been accepted in A.K.
Gopalan vs. State of Madras8, D.S.
Nakara and others vs. Union of India9,
State of Bombay and another vs. F.N.
Balsara10, and, in later years, in
Minerva Mills Ltd. and others vs. Union
of India and others11 and Kihoto
Hollohan vs. Zachillhu and others12.

21. The severance of the offending
part has made the remainder of Section 2(c)
(iii) intra vires, purging it of the vice of
discrimination on the ground of sex alone.
What has remained back is a workable
provision and is to be understood in the
manner that a daughter, irrespective of her
marital status, is to be regarded as a
member of the deceased government
servant's family, in the same manner as a
son, whether married or unmarried. This
Court, therefore, holds that in the definition
of
the
deceased's
family,
the
word
''daughter' has to be read unqualified by the
marital status of the daughter and it
requires no further amendment to the Rules
by the Government to make the right of a
daughter of the deceased government
servant effective under the Rules. The
impugned order, therefore, passed on the
basis of a reading of Rule 2(c) (iii) of the
Rules with the word ''daughter' qualified by
the word ''unmarried' since struck down by
this Court in Smt. Vimla Srivastava (and
followed
in
Neha
Srivastava),
is
manifestly illegal. It is so as it proceeds on
the basis of a statutory provision, that has
been declared unconstitutional and void by
this Court.

22. In the result, the writ petition
succeeds and is allowed.

23. The impugned order dated
25.06.2020 passed by the District Basic
1 All. Kashi Prasad Shukla Vs. State of U.P. & Ors.
1111
Education Officer, Prayagraj, rejecting the
petitioner's
claim
for
compassionate
appointment,
is
hereby
quashed.
A
mandamus is issued to the District Basic
Education Officer, Prayagraj 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 two
months from the date of communication of
a copy of this order.

24. There shall, however, be no order as
to costs.

25. Let this order be communicated to the
District Basic Education Officer, Prayagraj by
the Joint Registrar (Compliance).
----------
(2021)01ILR A1111
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2020

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Writ-A No. 13368 of 2009

Kashi Prasad Shukla ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajay Kr. Srivastava, Sri Shiv Kumar Pal,
Sri Sushil Kumar Pal

Counsel for the Respondents:
C.S.C., A.S.G.I.

Civil
Law-Petitioner
retired-Only
90
%
gratuity/GPF paid and 10 % to be paid after
final settlement -after 5 years the impugned
recovery
order
passed-after
retirement
Respondent cannot proeed for recovery.

W.P. allowed. (E-7)
List of Cases cited: -

1. St. of Pun. & ors. Vs Rafiq Masih (White
Washer) (2015) 4 SCC 334

(Delivered by Hon'ble Shekhar Kumar Yadav, J.)

1. By means of this writ petition, the
petitioner
has,
inter-alia,
prayed
for
following reliefs:

"(i) issue a writ order or direction in
the nature of certiorari quashing the
recovery notice dated 26.8.2004 and
11.2.2009 (contained as Annexure Nos.1
and 3 to the writ petition) asking the
petitioner to pay Rs.2,13,838/- as an excess
payment of GPF to the petitioner;

(ii) issue a writ order or direction in
the nature of mandamus commanding the
respondents to not to initiate any coercive
measure against the petitioner till the
representation dated 11.09.2004 is decided
and considered by speaking and reasoned
order passed by the respondent no.4;

(iii) issue a writ order or direction in
the nature of mandamus directing the
respondent no.4 to release the 10% balance
amount of GPF to the petitioner forthwith."

2. The brief facts of the case are that
petitioner is a retired employee of the
respondents and he retired on 30.04.2004
on the post of Sub-Inspector of Motor
Transport while he was working under the
control
of
Superintendent
of
Police,
Fatehpur. Petitioner was provided GPF
Account
No.PU
72897.
The
GPF
contribution of the petitioner has regularly
been deducted by the respondents since
1964. After his retirement, the petitioner
has been paid GPF amount to the tune of
Rs.4,00,000/-. The said payment was made
only up to 90% gratuity/GPF and 10% was
to be paid after final settlement. Since the
petitioner retired on 30.04.2004, and as