# Smt. Reeta Singh v. State of U.P. and others

- **Citation:** (2013) 1 ILRA 410
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-03-18
- **Bench:** Amreshwar Pratap Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-reeta-singh-v-state-of-u-p-and-others-42518
- **Pages:** 3

## Headnote

Constitution
of
India,
Art.-226.-
compassionate appointment-claimed by
divorced daughter-whether the divorces
'Daughter' within definition of familyview taken in Kusum Devi-deferredmatter
referred
to
larger
BenchSecretary may take appropriate steps for
necessary amendment if desired.

Held: Para-11

A divorced daughter is not included in
the
list
of
dependants.
In
such
circumstances by including a divorced
daughter also in the Rules would be
increasing the ambit of the Rules, which
will fall within the realm of legislation
and cannot be stretched by judicial
interpretation.
Accordingly,
the
reasoning given in the paragraphs 9, 10
and 11 of the judgment in the case of
Smt. Kushum Devi (supra) may require
reconsideration as I am unable to
respectfully subscribe to the reasoning
given in the aforesaid judgment.

## Text

410 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
when their earlier writ petition was
dismissed as not pressed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2013

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI,J.

Civil Misc. Writ Petition No. 15106 Of 2013

Smt. Reeta Singh
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri Deepak K. Jaiswal

Counsel for the Respondents:
C.S.C., Sri B.P.Singh

Constitution
of
India,
Art.-226.-
compassionate appointment-claimed by
divorced daughter-whether the divorces
'Daughter' within definition of familyview taken in Kusum Devi-deferredmatter
referred
to
larger
BenchSecretary may take appropriate steps for
necessary amendment if desired.

Held: Para-11

A divorced daughter is not included in
the
list
of
dependants.
In
such
circumstances by including a divorced
daughter also in the Rules would be
increasing the ambit of the Rules, which
will fall within the realm of legislation
and cannot be stretched by judicial
interpretation.
Accordingly,
the
reasoning given in the paragraphs 9, 10
and 11 of the judgment in the case of
Smt. Kushum Devi (supra) may require
reconsideration as I am unable to
respectfully subscribe to the reasoning
given in the aforesaid judgment.

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J)

1. Heard learned counsel for the
petitioner Sri Ashok Khare, Senior
Counsel, learned Standing for Respondent
No. 1 and Sri V.P. Singh for the
Respondent Nos. 2 to 5.

2. The petitioner is the daughter of
late Shyam Dulari Singh her mother, who
was an Assistant Teacher in primary
school Kakrahi and died in harness on
12th September, 2009. The petitioner's
father had already died leaving behind her
and her mother.

3.

The
petitioner
claimed
compassionate appointment on the ground
that she is a divorced lady and was
dependent on her mother.

4. It is undisputed that the petitioner
was divorced on a date, later than the
death of her mother in 2010. The
petitioner earlier filed Writ Petition No.
35687 of 2012 which was disposed of
with a direction upon the Respondent No.
5 to decide the matter of her appointment
on compassionate grounds.

5. Vide order dated 25.7.2012, the
District Basic Education Officer rejected
the representation of the petitioner on the
ground that a divorced daughter does not
fall within the definition of a dependant.
A copy of the order impugned has been
annexed as Annexure No. 7 to the writ
petition.

6. Sri Khare has relied upon on the
decision in the case of Smt. Kushum Devi
Vs. State of U.P. and others (2001) Vol.3
Education and Service cases Page 1283 to
contend that a divorced daughter would
1 All Smt. Reeta Singh Vs. State of U.P. and others
411
also fall within the definition of the word
'family', and the petitioner being a
dependent, she was entitled for the benefit
of compassionate appointment. Thus it is
prayed that the impugned order be
quashed.

7. It has been stated by the learned
counsel for the petitioner at the Bar that
the judgment in the case of Smt. Kushum
Devi is still intact.

8. Having perused the relevant Rules
and
the
judgment
aforesaid,
the
Government Order dated 22nd December,
2011 recites the definition of the word
family as wife or husband, son/ adopted
son,
unmarried
daughters,
widowed
daughter,
widowed
daughter-in-law,
unmarried brother and sister dependent on
the deceased employee and a widowed
mother (if the deceased employee had
died unmarried). The claim, therefore, has
been rejected as a divorced daughter does
not fall within the definition of a widowed
daughter.

9. The judgment which has been
relied upon by Sri Khare, places a
divorced daughter at par with a widowed
daughter
and,
according
to
the
interpretation given in paragraph 11 of the
said judgment, she was found entitled to
get the benefit of the compassionate
appointment for the reasons stated in
support thereof. As such the petitioner
whose case is also on the same footing, is
entitled to the same benefit. The Rule is
descriptive
so
as
to
only
include
unmarried and widowed daughter, who
are eligible and dependant on the
deceased employee, for the purpose of
seeking compassionate appointment.

10. The Rules under consideration in
Kushum Devi's case ( supra) were Rule
2(C) of the 1974 Rules about which
reference
has
been
made
in
the
Government
Order
which
is
under
consideration.

11. A divorced daughter is not
included in the list of dependants. In such
circumstances by including a divorced
daughter also in the Rules would be
increasing the ambit of the Rules, which
will fall within the realm of legislation
and cannot be stretched by judicial
interpretation. Accordingly, the reasoning
given in the paragraphs 9, 10 and 11 of
the judgment in the case of Smt. Kushum
Devi
(supra)
may
require
a
reconsideration as I am unable to
respectfully subscribe to the reasoning
given in the aforesaid judgment.

12. Loosing the status of a married
daughter upon divorce is by operation of
law, recognized on a decree of divorce
passed by a Court having competent
jurisdiction. The daughter automatically,
therefore, does not become dependant
upon her parents so long as the decree of
divorce is not granted. The dependency of
the daughter would therefore directly be
dependant upon the decree being granted
which in the present case as well as in
Smt. Kushum Devi's case (supra) came to
occur later on, much after the death of the
employee. The employee had died and the
decree was passed later on. Under such
circumstances as on the date of death of
the employee neither the petitioner herein
nor the petitioner in the aforesaid decision
had been divorced so as to claim
dependency.

13. Apart from this the definition of
the said clause nowhere indicates that it is
412 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
illustrative and, thus, for the aforesaid
reasons, I do not find the judgment in
Smt. Kushum Devi's case to be laying
down the correct law.

14. Since there is a judgment to the
contrary, it would be appropriate that the
matter be disposed of by a larger Bench of
this Court on this issue authoritatively "as
to whether a divorced daughter would
also be included within the definition of
word 'family' under the relevant Rules or
not".
Accordingly,
after
notice
the
Respondents are directed to file counter
affidavit within three weeks and rejoinder
affidavit may be filed within a week.

15. Let this matter now placed
before the Hon'ble Chief Justice in terms
of Chapter-5 Rule 2(b)(ix) read with Rule
6 of the Allahabad High Court Rules,
1952 for getting the matter resolved by a
larger Bench for which appropriate orders
may be passed and in the mean-time, the
parties may exchange their affidavits.

16. At the same time learned
Standing Counsel shall communicate this
order to the Respondent No. 1 who may
on this reference, proceed to get the
matter examined by the State Government
in as much as a divorced daughter is also
placed under the same circumstances
becoming dependant on her parents in
such peculiar circumstances where a
husband deserts her, having no means of
livelihood to sustain herself, and therefore
the State Government can reasonably
amend the Rules for the purpose of
including a divorced daughter as well
within the definition of the word family
for compassionate appointment subject to
such conditions as may be necessary for
grant of such benefit.

17. A copy of this order be issued to
the learned Standing Counsel Sri Upendra
Singh free of charges within three days.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2013

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI,J.

Civil Misc. Writ Petition No. 16010 Of 2013

Ved Prakash Pandey

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Rama Nand Pandey
Sri Pradeep Narayan Pandey

Counsel for the Respondents:
C.S.C.

U.P. Intermediate Education Act-1921Chapter III, Regulation-2- Appointment
of
Head
Clerk-vacancy
fall
under
promotional reserve quota-non of the
junior clerk possess minimum experience
of 5 years of junior clerk-management to
fulfill said post by direct recruitment.

Held: Para-11.

So far as qualifications are concerned,
the post of the Head Clerk or even
otherwise of a Class III employee is the
same as provided for, in the government
run
secondary
institutions.
The
management will therefore, have to take
in to account the said qualification for
the purpose of filling up of the post of
the Head Clerk in a peculiar situation
that has cropped up in the present case.
The management can also take into
account
the
fact
that
a
candidate
available who has put in more than five
years of service in any other institution
may apply for direct recruitment. In such
a situation, it is open for the Committee
of
management
to
apply
the
said