# Smt. Puja Yadav @ Pooja Yadav v. State of U.P. & Ors

- **Citation:** (2025) 4 ILRA 408
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-09
- **Case number:** Writ A No. 15804 of 2024
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-puja-yadav-pooja-yadav-v-state-of-u-p-ors-53128
- **Pages:** 9

## Headnote

Law
-
Compassionate
appointment - Married daughter - Delay
of
16
years
-
U.P.
Recruitment
of
Dependents
of
Government
Servants
Dying in Harness Rules, 1974 - Rule 2 (c)
(iii) struck down- Amendment of Rule 2(c)
in 2021 - Effect of earlier court ruling
declaring exclusion of married daughters
unconstitutional
-question
of
retrospective applicability does not arise-
Dependency not assessed - Rejection
order based on presumptions - Delay
condonable
where
litigation
explains
cause - Amendment held declaratory in
nature - Impugned order quashed -
Remand for fresh consideration.

HELD:

In so far as first point is concerned, I find that
petitioner had already moved an application
seeking compassionate appointment and the
said application was not considered and matter
continued to be lingered on and hence she was
forced to file writ petition being Writ A No.
52986 of 2016. The Court in that case refused
to grant writ of mandamus on the ground that
petitioner was not able to establish dependency
and reason assigned was that she was married
daughter and married daughters normally move
out of their house of the parents, and therefore,
they cannot be taken to have remained
dependent financially upon the parents. The
Court held that maintenance of wife rests upon
her
husband.
The
said
judgment
stood
superseded by the judgment of division bench,
which I have quoted hereinabove and in which
petitioner was directed to move application
afresh and authority was directed to consider
the same. Thus there arose no point to hold
that petitioner moved an application belatedly in
the year 2016 to dis-entitled her for claim of
4 All. Smt. Puja Yadav @ Pooja Yadav Vs. State of U.P. & Ors.
409
compassionate
appointment.
Whatever
application petitioner had previously moved
remained undisposed of and since division
bench ordered petitioner to move application
afresh in 2016, petitioner came to move the said
application in 2016 and hence respondents were
not justified in rejecting her claim on the ground
that
she
could
move
application
for
compassionate appointment in the year 2016
only whereas earning member of the family had
died in the year 2008. Petitioner's application,
therefore, was liable to be considered on merits
instead of rejecting the same on the point of
delay.

Thus, authority was required to enquire into the
facts as to status of the applicant and then to
arrive at a finding whether petitioner did not
deserve compassion any more as family
survived and hence there was no financial crisis
any more existing. The order, therefore, on
this count cannot be sustained and point no.
1 stands decided in favour of the petitioner.

In so far as second point is concerned
regarding
retrospective
effect
of
the
amendment, I find that division bench of this
Court in the case of Smt. Vimla Srivastava Vs
St. of U.P & anr. being Writ C No. 6081 of
2013 and connected matter, had in a very
categorical terms held that exclusion of
married
daughters
from
the
ambit
of
expression family in Rule 2(c) of Dying-inHarness
Rules,
1974,
was
illegal
and
unconstitutional being violative of Article 14-
15 of the Constitution and accordingly it
struck down the word married in Rule 2(c) of
the Rules....

From perusal of the above, it is clear that the
Court struck down the word 'unmarried'.
Striking down a particular provision or the
word and expression in statute or statutory
rule and holding it to be unconstitutional
means that such words and expression never
existed on statute and therefore, it can be
safely concluded that there was no issue of
attaching retrospectivity to the amendment in
its application rather, this was taken by the
Court to be always there and by amendment
brought in the year 2021, the St. only
statutorily recognized it. Against the aforesaid
judgment of division bench special leave petition
was filed before Supreme Court in the matter of
St. of U.P. & anr. Vs Neha Srivastava being
Special Leave to Appeal (C)No. 22646 of 2016

## Text

408 INDIAN LAW REPORTS ALLAHABAD SERIES

10.
The
impugned
order
dated
17.05.2023 is unsustainable in law. The
impugned order dated 17.05.2023 is
liable to be set aside and is set aside.

11. The matter is remitted to the
respondents-authorities
with
the
following directions:

I). The application of the
petitioner
for
appointment
on
compassionate grounds shall be decided
by the respondents-authorities as per
law within a period of three months
from the date of receipt of a certified
copy of this order.

II). While taking the decision
on the appointment of the petitioner, the
nature of the appointment of his
deceased-father shall be determined in
light of the observations made above.

III). The financial condition of
the petitioner's family at the time of the
death of the petitioner's father, and
dependancy on the deceased and all
other relevant facts as per law are liable
to be determined by the authority.

12. The writ petition is allowed to
the extent indicated above.

----------
(2025) 4 ILRA 408
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.04.2025

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 15804 of 2024

Smt. Puja Yadav @ Pooja Yadav
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Om Prakash Yadava, Suresh Chandra
Kushwaha

Counsel for the Respondents:
C.S.C.

Service
Law
-
Compassionate
appointment - Married daughter - Delay
of
16
years
-
U.P.
Recruitment
of
Dependents
of
Government
Servants
Dying in Harness Rules, 1974 - Rule 2 (c)
(iii) struck down- Amendment of Rule 2(c)
in 2021 - Effect of earlier court ruling
declaring exclusion of married daughters
unconstitutional
-question
of
retrospective applicability does not arise-
Dependency not assessed - Rejection
order based on presumptions - Delay
condonable
where
litigation
explains
cause - Amendment held declaratory in
nature - Impugned order quashed -
Remand for fresh consideration.

HELD:

In so far as first point is concerned, I find that
petitioner had already moved an application
seeking compassionate appointment and the
said application was not considered and matter
continued to be lingered on and hence she was
forced to file writ petition being Writ A No.
52986 of 2016. The Court in that case refused
to grant writ of mandamus on the ground that
petitioner was not able to establish dependency
and reason assigned was that she was married
daughter and married daughters normally move
out of their house of the parents, and therefore,
they cannot be taken to have remained
dependent financially upon the parents. The
Court held that maintenance of wife rests upon
her
husband.
The
said
judgment
stood
superseded by the judgment of division bench,
which I have quoted hereinabove and in which
petitioner was directed to move application
afresh and authority was directed to consider
the same. Thus there arose no point to hold
that petitioner moved an application belatedly in
the year 2016 to dis-entitled her for claim of
4 All. Smt. Puja Yadav @ Pooja Yadav Vs. State of U.P. & Ors.
409
compassionate
appointment.
Whatever
application petitioner had previously moved
remained undisposed of and since division
bench ordered petitioner to move application
afresh in 2016, petitioner came to move the said
application in 2016 and hence respondents were
not justified in rejecting her claim on the ground
that
she
could
move
application
for
compassionate appointment in the year 2016
only whereas earning member of the family had
died in the year 2008. Petitioner's application,
therefore, was liable to be considered on merits
instead of rejecting the same on the point of
delay.

Thus, authority was required to enquire into the
facts as to status of the applicant and then to
arrive at a finding whether petitioner did not
deserve compassion any more as family
survived and hence there was no financial crisis
any more existing. The order, therefore, on
this count cannot be sustained and point no.
1 stands decided in favour of the petitioner.

In so far as second point is concerned
regarding
retrospective
effect
of
the
amendment, I find that division bench of this
Court in the case of Smt. Vimla Srivastava Vs
St. of U.P & anr. being Writ C No. 6081 of
2013 and connected matter, had in a very
categorical terms held that exclusion of
married
daughters
from
the
ambit
of
expression family in Rule 2(c) of Dying-inHarness
Rules,
1974,
was
illegal
and
unconstitutional being violative of Article 14-
15 of the Constitution and accordingly it
struck down the word married in Rule 2(c) of
the Rules....

From perusal of the above, it is clear that the
Court struck down the word 'unmarried'.
Striking down a particular provision or the
word and expression in statute or statutory
rule and holding it to be unconstitutional
means that such words and expression never
existed on statute and therefore, it can be
safely concluded that there was no issue of
attaching retrospectivity to the amendment in
its application rather, this was taken by the
Court to be always there and by amendment
brought in the year 2021, the St. only
statutorily recognized it. Against the aforesaid
judgment of division bench special leave petition
was filed before Supreme Court in the matter of
St. of U.P. & anr. Vs Neha Srivastava being
Special Leave to Appeal (C)No. 22646 of 2016,
which came to be dismissed on 23rd July, 2019.
A common law judgment has the same force as
any statutory Act or Rule.

Petition allowed. (E-14)

List of Cases cited:

1.Udham Singh Nagar District Cooperative Bank
Ltd. & anr. Vs Anjula Singh Others, 2019 0
Supreme (UK) 153

2.Government
Department
of
Education
(Primary) & ors. Vs Beemesh @ Bheemappa,
2022 AIR (SC) 402

3.Madhya Pradesh & ors. Vs Ashish Awasthi
being Civil Appeal No. 6903 of 2021 decided on
18th November, 2021

4.Smt. Vimla Srivastava Vs St. of U.P & anr.
being Writ C No. 6081 of 2013

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

1. Heard Sri Pankaj Kushwaha,
learned Advocate holding brief of Sri
S.C.Kushwaha, learned counsel for the
petitioner and learned Additional Chief
Standing Counsel.

2. Petitioner before this Court is
aggrieved by decision taken by the
Secretary, Madhyamik Shiksha Parishad/
respondent no. 2 dated 25th July, 2024
rejecting application of the petitioner for
compassionate appointment only on the
ground that after sixteen years of death of
deceased
employee,
compassionate
appointment cannot be offered as the
emergent situation and financial crisis that
had arisen on the death of employee no
more existed due to lapse of time.

3. Submission advanced by learned
counsel for the petitioner is that petitioner
410 INDIAN LAW REPORTS ALLAHABAD SERIES
was not responsible for any delay in the
matter of claim to be set up for
compassionate appointment as she pursued
the matter and when no progress took
place, she approached this Court by filing a
writ petition being Writ A No. 59286 of
2016, which came to be dismissed vide
order dated 23rd December, 2016 holding
that
dependency
of
applicant
upon
deceased
employee
could
not
be
established for the reason petitioner was a
married women.

4. Upon appeal being preferred vide
Special Appeal No. 61 of 2017 against the
judgment of learned Single Judge, the
Court directed for disposal of pending
application if the petitioner filed a fresh
before Deputy Director of Education,
Prayagraj,
Region
Prayagraj,
the
authority shall be passing order in
accordance with law after considering all
the aspects of the case within three
months. The operative portion of the
order of the division bench dated 14th
February, 2023 is reproduced hereunder:

"Hon'ble
Pritinker
Diwaker,Acting Chief Justice

Hon'ble
Saumitra
Dayal
Singh,J.

Sri S.C. Kushwaha, counsel for
the appellant and learned Standing
Counsel for the State.

The appellant, Smt. Puja Yadav,
is a married daughter of late Ranjit
Yadav,
who
died
in
harness
on
01.01.2008. From the pleadings, it
appears that when the appellant was not
given compassionate appointment, she
made representation to the competent
authority but nothing was done and
ultimately, she was compelled to file writ
petition before this Court. In the writ
court, no counter was filed by the State.
However, vide impugned judgement dated
23.12.2016, the writ petition was dismissed
on the ground that the appellant is a
married daughter and does not fall in any
of the category as provided by the
Government in its notification.

In this appeal, the order of
learned
Single
Judge
has
been
challenged on the ground that even
married daughters are entitled to
compassionate appointment.

Counsel for the State fairly
submits that till date the case of the
appellant has not been considered on
merits
and
the
same
would
be
considered
if
the
appellant
files
appropriate application within three
weeks from today.

In view of the fair statement
made by State counsel, without further
entering into the merits of the case, the
appeal is disposed off directing the
appellant to file fresh application
before
the
Deputy
Director
of
Education,
Prayagraj
Region,
Prayagraj and the said authority shall
pass appropriate orders in accordance
with law after considering all the
aspects of the case as expeditiously as
possible preferably within a period of
three months.

It is made clear that this Court
has observed nothing on the merits of
the case and the competent authority is
at liberty to pass order in accordance
with law. "

5. The said order came to be corrected
and though permitted the petitioner to make
4 All. Smt. Puja Yadav @ Pooja Yadav Vs. State of U.P. & Ors.
411
fresh compliance within a period of two
weeks. The order of this Court dated
13.3.2024 is reproduced hereunder:

"Hon'ble
Saumitra
Dayal
Singh,J.

Hon'ble Surendra Singh-I,J.

Re:
C.M.
Application
(Correction) No. 7 of 2023

1. In view of the facts stated in
affidavit in support of the Correction
Application including the communication
dated 8.8.2023 issued by Deputy Director
of Education (Intermediate), Prayagraj
Mandal, Prayagraj, let the description of
the authority - "Deputy Director of
Education, Prayagraj Region, Prayagraj"
appearing in third line of the fifth
paragraph of the order dated 14.2.2023 is
treated to be deleted and replaced with
Secretary, Board of High School and
Intermediate, Uttar Pradesh, Prayagraj.

2. Correction application stands
allowed.

3. In view of the correction made
today,
petitioner
may
make
fresh
compliance of the order dated 14.2.2023
within a period of two weeks from today.
Subject to such compliance made by the
petitioner, the order dated 14.2.2023 may
be complied with by the said authority. "

6. Now respondents passed the order
this time holding that the application for
compassionate appointment could not be
granted after 16 years of the date of death
of deceased employee.

7. Learned Additional Chief Standing
Counsel sought to defend the order on the
ground that petitioner's dependency was to
be determined in the light of fact that she
was already married on the date of death of
the employee and in the event married
daughter was unmarried on the date of
death of the employee, the claim was not
liable to be considered at par with other
dependents of the family. Learned Standing
Counsel
has
further
submitted
that
amendment in the Dying in Harness Rules,
1974 having been brought in the year
2021, the same would not be applicable
retrospectively and hence petitioner's
claim was rightly rejected.

8. In support of above submission,
learned Chief Standing Counsel has
relied upon the judgment in the case of
Udham
Singh
Nagar
District
Cooperative Bank Ltd. & Another v.
Anjula Singh Others, 2019 0 Supreme
(UK) 153 and has relied upon paragraph
65 of the judgment, which is reproduced
hereunder:

"65. Any person, who is a part
of
the
"family"
of
the
deceased
Government servant, would also be
included within the said definition.
Consequently,
a "married daughter"
would also fall within the definition of a
"family" both in Rule 2(c) of the 1974
Rules,
and
under
the
note
below
Regulation 104 of the 1975 Regulations.
Needless to state that the members of the
"family" of the deceased Government
servant in Clauses (i) to (iii) of Rule 2(c) of
the 1974 Rules, and the note below
Regulation 104 of the 1975 Regulations,
which would include a "married daughter",
would be entitled to be considered for
compassionate appointment only if they
were dependent on the Government servant
at the time of his death, and satisfy all the
other conditions stipulated in the 1974
Rules and the 1975 Regulations."
412 INDIAN LAW REPORTS ALLAHABAD SERIES

9. Learned Additional Chief Standing
Counsel has further relied upon the
judgment in the case of Secretary to
Government Department of Education
(Primary) & Others v. Beemesh @
Bheemappa, 2022 AIR (SC) 402 and has
relied upon paragraph 19 of the judgment
which is reproduced hereunder:

"19. The important aspect about
the conflict of opinion is that it revolves
around two dates, namely, (i) date of death
of the employee; and (ii) date of
consideration of the application of the
dependant. Out of these two dates, only
one, namely, the date of death alone is a
fixed factor that does not change. The next
date namely the date of consideration of the
claim, is something that depends upon
many variables such as the date of filing of
application, the date of attaining of
majority of the claimant and the date on
which the file is put up to the competent
authority. There is no principle of statutory
interpretation which permits a decision on
the applicability of a rule, to be based upon
an indeterminate or variable factor. Let us
take for instance a hypothetical case where
2 Government servants die in harness on
January 01, 2020. Let us assume that the
dependants
of
these
2
deceased
Government servants make applications for
appointment on 2 different dates say
29.05.2020 and 02.06.2020 and a modified
Scheme comes into force on June 01, 2020.
If the date of consideration of the claim is
taken to be the criteria for determining
whether the modified Scheme applies or
not, it will lead to two different results, one
in respect of the person who made the
application before June 1, 2020 and
another in respect of the person who
applied after June 01, 2020. In other
words, if two employees die on the same
date and the dependants of those employees
apply on two different dates, one before the
modified Scheme comes into force and
another thereafter, they will come in for
differential treatment if the date of
application and the date of consideration of
the same are taken to be the deciding
factor. A rule of interpretation which
produces different results, depending upon
what the individuals do or do not do, is
inconceivable.
This
is
why,
the
managements of a few banks, in the cases
tabulated above, have introduced a rule in
the modified scheme itself, which provides
for all pending applications to be decided
under the new/modified scheme. Therefore,
we are of the considered view that the
interpretation as to the applicability of a
modified Scheme should depend only upon
a determinate and fixed criteria such as the
date of death and not an indeterminate and
variable factor. "

10. Learned Additional Chief Standing
Counsel has also relied upon the judgment
in the case of State of Madhya Pradesh
and Others v. Ashish Awasthi being Civil
Appeal No. 6903 of 2021 decided on 18th
November, 2021. He has placed reliance
upon paragraph 4 of the judgment, which
reuns as under:

"4. The deceased employee died
on 08.10.2015. At the time of death, he was
working as a work charge employee, who
was paid the salary from the contingency
fund. As per the policy/circular prevalent at
the time of the death of the deceased
employee, i.e., policy/circular No.C-3-
12/2013/1-3 dated 29.09.2014 in case of
death of the employee working on work
charge, his dependents/heirs were not
entitled
to
the
appointment
on
compassionate ground and were entitled to
Rs. 2 lakhs as compensatory amount.
Subsequently, the policy came to be
4 All. Smt. Puja Yadav @ Pooja Yadav Vs. State of U.P. & Ors.
413
amended vide circular dated 31.08.2016,
under which even in the case of death of the
work
charge
employee,
his
heirs/dependents will be entitled to the
appointment on compassionate ground.
Relying
upon
the
subsequent
circular/policy dated 31.08.2016, the
Division Bench of the High Court has
directed the appellants to consider the
case of the respondent for appointment
on compassionate ground. As per the
settled preposition of law laid down by
this
Court
for
appointment
on
compassionate
ground,
the
policy
prevalent at the time of death of the
deceased employee only is required to
be considered and not the subsequent
policy. "

11. Having heard learned counsel
for the respective parties and having
perused
the
records,
in
order
to
appreciate the legal principles argued
before me by learned counsel for the
respective parties, it is necessary to go
into the reasons assigned in order
impugned first: operative portion of the
impugned order, in which five reasons
have come to be assigned are reproduced
hereunder:

"उक्त वधर्टत धस्थधत के आलोक में माननीय उच्च
न्यायालय, इलाहािाद के धवशेष अपील सांख्या-61/2017 में
पारित धनर्टय धदनाांक 14.02.2023 यथा सांशोधित
13.02.2024 के अन पालन में प्रकिर् का अधर्लेखीय पिीक्षर्
धकया गया धजसमें धनम्नवत धस्थधत पायी गयीः-

1. याची श्रीमती पूजा यादव के धपता स्व० िर्जीत
धसांह माध्यधमक धशक्षा परिषद्, उति प्रदेश के म ख्य कायाटलय,
प्रयागिाज में वरिष्ठ सहायक के पद पि कायटित थे धजनका सेवाकाल
में आकधस्मक धनिन धदनाांक 01.01.2008 को हुआ था।

2. स्व० िर्जीत धसांह, वरिष्ठ सहायक के धनिन के
उपिान्त उनके आधश्रतों द्वािा उति प्रदेश शासन की अधिसूचना
सांख्याः- 6/12/1973 धनय धक्त-4 धदनाांक 07.10.1974 द्वािा
प्रख्याधपत "उति प्रदेश सेवाकाल में मृत सिकािी सेवकों के आधश्रतों
की र्ती धनयमावली-1974" यथा अद्यतन सांशोधित के अिीन
अन कम्पा धनय धक्त प्रदान धकये जाने के आशय से समयान्तगटत प्राथटना
पत्र प्रस्त त नही धकया गया।

3. वषट 2008 में धववाधहत प धत्रयों को मृतक
आधश्रत के अन्तगटत अन कम्पा धनय धक्त प्रदान धकये जाने का कोई
प्राधविान सांगत धनयमावधलयों में नही था, अधपत उति प्रदेश शासन
द्वािा धनगटत अधिसूचना सांख्याः-6/12/73-का-2/2021 र्ी०
सी० IV धदनाांक 12 नवम्िि, 2021 में धववाधहत प धत्रयों को
मृतक सिकािी कमटचािी के क र् म्ि के अन्तगटत माना गया है। उक्त
धनयमावली धनगटमन की धतधथ 12 नवम्िि, 2021 से प्रर्ािी है न
धक पूवटवती धतधथ से प्रर्ावी है।

4. उति प्रदेश शासन की अधिसूचना सांख्याः-
6/12/1973/ धनय धक्त-4 धदनाांक 07.10.1974 द्वािा
प्रख्याधपत "उति प्रदेश सेवाकाल में मृत सिकािी सेवकों के आधश्रतों
की र्ती धनयमावली- 1974" मे मृत कमटचािी के परिवाि को
तात्काधलक िाहत देने के आशय से अन कम्पा धनय धक्त धदये जाने के
प्राधविान है।

5. याची श्रीमती पूजा यादव द्वािा अपने धपता स्व०
िर्जीत धसांह के धदनाांक 01.01.2008 को धनिन होने के लगर्ग
16 वषों के उपिान्त अन कम्पा धनय धक्त प्रदान धकये जाने हेत प्राथटना
पत्र प्रस्त त धकया गया है।

सूच्य है धक मृतक आधश्रत सेवायोजन की व्यवस्था
मृतक काधमटक की मृत्य के िाद, परिवाि पि अचानक उत्पन्न
आधथटक सांकर् को दूि किने हेत की गयी है, ताधक वे अपनी
ि धनयादी आवश्यकता की पूधतट कि सके तथा सामाधजक सम्मान व
स िक्षा िनी िही। प्रस्त त प्रकिर् में 16 वषट िाद धदये गये आवेदन
केवल िोजगाि पाने के उद्देश्य से धदया गया प्रतीत होता है जो
औधचत्यपूर्ट नहीं है।"

12. From a bare reading of the
aforesaid quoted part of the impugned
order, I find that first reason for rejecting
application assigned is that the provision to
414 INDIAN LAW REPORTS ALLAHABAD SERIES
include
married
daughter
within
the
definition of family was not available in the
year order 2008 and since it has been
brought by way of amendment on 12th
November, 2021, it cannot be given
retrospect effect.

13. The second reason assigned is that
Dying-in-Harness Rules have been framed
to offer appointment to the dependents of
the deceased to immediately provide
succour to the family, which was not case
of the petitioner which petitioner.

14. The third reason assigned is that
petitioner
moved
an
application
for
compassionate appointment after sixteen
years and hence application deserved to be
rejected.

15.
Now
two
points
arise
for
consideration of this Court:

(a).
whether
petitioner's
application
seeking
compassionate
appointment deserved to be rejected as time
bared under 1974 Rules and whether
petitioner herself to be blamed for such
delayed application for compassionate
appointment; and

(b). whether amendments made in
the definition of family vide notification
dated 12th November, 2021 under 1974
Rules would invalidate claim of such
applicants
who
had
already
moved
application prayer to said notification made
by the State Government on the principle of
prospective operation of law.

16. In so far as first point is concerned,
I find that petitioner had already moved an
application
seeking
compassionate
appointment and the said application was
not considered and matter continued to be
lingered on and hence she was forced to
file writ petition being Writ A No. 52986 of
2016. The Court in that case refused to
grant writ of mandamus on the ground that
petitioner was not able to establish
dependency and reason assigned was that
she was married daughter and married
daughters normally move out of their house
of the parents, and therefore, they cannot be
taken
to
have
remained
dependent
financially upon the parents. The Court
held that maintenance of wife rests upon
her husband. The said judgment stood
superseded by the judgment of division
bench, which I have quoted hereinabove
and in which petitioner was directed to
move application afresh and authority was
directed to consider the same. Thus there
arose no point to hold that petitioner moved
an application belatedly in the year 2016 to
dis-entitled her for claim of compassionate
appointment.
Whatever
application
petitioner had previously moved remained
undisposed of and since division bench
ordered petitioner to move application
afresh in 2016, petitioner came to move the
said application in 2016 and hence
respondents were not justified in rejecting
her claim on the ground that she could
move
application
for
compassionate
appointment in the year 2016 only whereas
earning member of the family had died in
the year 2008. Petitioner's application,
therefore, was liable to be considered on
merits instead of rejecting the same on the
point of delay.

17. In so far as dependency part is
concerned, I find that in the impugned
order, there is no discussion as to what led
that authority to arrive at a conclusion that
financial need for survival did not exist any
more. The findings returned to the effect
that an application after sixteen years
would mean that there was no need for the
4 All. Smt. Puja Yadav @ Pooja Yadav Vs. State of U.P. & Ors.
415
family to offer compassionate appointment
is absolutely based on surmises and
conjectures. The question whether offer
of appointment was given after 16 years
as application was not moved as per Rule
1974 cannot itself be ground to reject a
claim in the light of directions issued by
the division bench of this Court, which
had made it binding for the authority to
pass order on merits. Thus, authority was
required to enquire into the facts as to
status of the applicant and then to arrive
at a finding whether petitioner did not
deserve compassion any more as family
survived and hence there was no financial
crisis any more existing. The order,
therefore, on this count cannot be
sustained and point no. 1 stands decided
in favour of the petitioner.

18. In so far as second point is
concerned regarding retrospective effect of
the amendment, I find that division bench
of this Court in the case of Smt. Vimla
Srivastava v. State of U.P and Another
being Writ C No. 6081 of 2013 and
connected matter, had in a very categorical
terms held that exclusion of married
daughters from the ambit of expression
family in Rule 2(c) of Dying-in-Harness
Rules,
1974,
was
illegal
and
unconstitutional being violative of Article
14-15 of the Constitution and accordingly it
struck down the word married in Rule 2(c)
of the Rules. The relevant portion of the
order of the division bench is reproduced
hereunder:

"In conclusion, we hold that the
exclusion of married daughters from the
ambit of the expression "family" in Rule
(c) of the Dying-in-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."

19. From perusal of the above, it is
clear that the Court struck down the word
'unmarried'. Striking down a particular
provision or the word and expression in
statute or statutory rule and holding it to be
unconstitutional means that such words and
expression never existed on statute and
therefore, it can be safely concluded that
there
was
no
issue
of
attaching
retrospectivity to the amendment in its
application rather, this was taken by the
Court
to
be
always
there
and
by
amendment brought in the year 2021, the
State only statutorily recognized it. Against
the aforesaid judgment of division bench
special leave petition was filed before
Supreme Court in the matter of State of
U.P. and Another v. Neha Srivastava being
Special Leave to Appeal (C)No. 22646 of
2016, which came to be dismissed on 23rd
July, 2019. A common law judgment has
the same force as any statutory Act or Rule.

20. In view of above therefore, the
order impugned can not be sustained in
law. Thus, judgment cited by the learned
Additional Chief Standing Counsel in the
matter of application of rule are held to be
distinguishable on facts and hence not
attracted. It is by an act of Court that
provision was held to be unconstitutional
and hence it is not a case where statutory
amendment
was
brought
by
State
legislature on its own introducing a new
legal right. Thus second point also stands
answered in favour of the petitioner.

21. Thus, impugned order passed by
Secretary, State of U.P. dated 25th July,
2024
is
held
unsustainable
and
is
accordingly
quashed.
The
matter
is
remitted to the authority to decide afresh.
416 INDIAN LAW REPORTS ALLAHABAD SERIES
However, this time, when the matter is
remitted to the authority to decide a fresh,
the authority will look into afresh the claim
of the petitioner and decide the same after
getting
the
petitioner's
status
being
dependent upon deceased employee duly
verified. The authority will also examine
and will also get the petitioner filed
requisite papers about financial status of
her husband and other documents in the
event petitioner's husband is having
revenue sources and the same shall be also
examined accordingly. The authority before
arriving at any conclusion must decide
whether financial crisis in the family does
continue as on date so that she may be
offered compassionate appointment. It is
made clear that application of the petitioner
this time will not be rejected on the ground
that it was belatedly filed. The bar of 5
years as prescribed under Rules will not be
applicable in the instant case in its special
facts and circumstances. The appropriate
decision shall be taken by the authority
within a period of three months from the
date of presentation of certified copy of this
order.

22. With the aforesaid observations
and directions, this petition stands allowed
with no order as to cost.

----------
(2025) 4 ILRA 416
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.04.2025

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Writ- B No. 285 of 2025

Kailash ...Petitioner
Versus
Dy. Director of Consolidation, Sitapur &
Anr. ...Respondents

Counsel for the Petitioner:
Ram Asarey Verma

Counsel for the Respondents:
C.S.C.

U.P. Consolidation of Holdings Act, 1953,
S. 48 - Revision and Reference - Order of
remand passed by Deputy Director of
Consolidation under challenge - Scope of
S. 48 - Section 48 of the Act, 1953
provides ample power to the Director of
Consolidation
to
examine
the
correctness/legality/propriety
of
any
order, which includes the power to
examine any finding, whether of fact or
law,
recorded
by
any
subordinate
authority, as well as the power to reappreciate
any
oral
or
documentary
evidence. Held: For the purposes of
remanding the case to the Consolidation
Officer, the D.D.C. pointed out some errors
in the order(s) impugned before him,
which, in the view of the High Court,
ought to have been looked into in exercise
of power under Section 48 of the Act,
1953 by the D.D.C. himself, as the entire
material was available before him. (Para
34) (E-5)

Allowed

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Shri Ram Asarey Verma,
learned counsel for the petitioner, Shri
Hemant Kumar Pandey, learned Standing
Counsel for the State/opposite party No.1
and perused the record.

2. Issuance of notice to opposite party
No.2 is hereby dispensed with liberty to the
opposite party No.2 to file an appropriate
recall application of this order, if aggrieved
by this order. It is for the following reason
(s)
:-