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

- **Citation:** Writ-A No. 834 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-21
- **Case number:** Writ-A No. 834 of 2020
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-santoshi-v-state-of-u-p-ors-46280
- **Pages:** 5

## Headnote

A. Civil law- UP Recruitment of Dependants of
Government Servant Dying in Harness Rules,
1974
-
Rule
5(1)
-Compassionate
Appointment -appointment of dependent of
the deceased employee cannot be interfered
with solely on the ground that she contracted
remarriage which is not restricted under the
aforesaid Rules - subject to the condition that
she has to maintain the dependants of the
deceased employee even after re- marriage

B. Constitution of India - Article 21 -Right to
remarry - no one can force a person to give up
his/her fundamental right to remarry only
because
she
obtained
compassionate
appointment.

Writ Petition disposed off. .(E-10)

List of cases cited:

## Text

3-5 All. Smt. Santoshi Vs. State of U.P. & Ors.
965
(2020)03-05ILR A965
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2020

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Writ-A No. 834 of 2020

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

Counsel for the Petitioner:
Sri Agnivesh, Sri Jadu Nandan Yadav, Sri
Arimardan Yadav

Counsel for the Respondents:
C.S.C.

A. Civil law- UP Recruitment of Dependants of
Government Servant Dying in Harness Rules,
1974
-
Rule
5(1)
-Compassionate
Appointment -appointment of dependent of
the deceased employee cannot be interfered
with solely on the ground that she contracted
remarriage which is not restricted under the
aforesaid Rules - subject to the condition that
she has to maintain the dependants of the
deceased employee even after re- marriage

B. Constitution of India - Article 21 -Right to
remarry - no one can force a person to give up
his/her fundamental right to remarry only
because
she
obtained
compassionate
appointment.

Writ Petition disposed off. .(E-10)

List of cases cited:

1. Smt. Subhwanti Devi Vs. Siksha Adhikshak, Basic
Siksha, Nagar Chetra, Allahabad &ors 1988 UPLBEC 80

2. Municipal Employees' Union Vs. Additional Commissioner
(Water) DWS & SDU & anr. 1996 (73) LR 963

3. Anikta Srivastava Vs St. of U.P. & ors, Civil Misc.
Writ Petition No. 19016 of 2013

4. Premlata Acharya Vs. Suman Acharya & ors,
Special Leave to Appeal (C) No. 16315 of 2017

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri Agnivesh holding brief of Sri
Arimardan Yadav, learned counsel for the
petitioner and Sri Shyam Sundar, learned
standing counsel for the State-respondents.

2. This writ petition has been filed
praying for the following relief:

"(i) Issue a writ, order or direction in
the nature of mandamus directing the
respondents to permit the petitioner for
remarriage without effecting the services of the
petitioner."

3. Briefly stated facts of the present
case are that the husband of the petitioner,
namely Dharmendra Kumar was a class-IV
employee in the respondent No.3 -
Institution. During tenure of his service, he
died
on
06.03.2011.
Therefore,
the
petitioner applied for her appointment on
compassionate
ground
and
she
was
appointed as a class-IV employee by
appointment letter dated 23.12.2011, under
the
Uttar
Pradesh
Recruitment
of
Dependants of Government Servant Dying
in Harness Rules, 1974. Now the petitioner
wants to remarry with her devar (real
younger brother of her husband), namely
Sri Ranjeet Kumar. Averments in this
regard has been made in paragraph-8 of the
writ petition. In paragraph-9 of the writ
petition, it is stated that the respondents are
not permitting the petitioner to remarry
with her devar Ranjeet Kumar.
966 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Learned counsel for the petitioner
submits that the respondent Nos.2 and 3
have threatened that if the petitioner
remarries with her devar, then action may
be taken against her since her appointment
was made on compassionate ground as she
has to maintain the dependants of her
deceased husband. Learned counsel for the
petitioner states that the petitioner shall
maintain dependants of her deceased
husband
including
her
mother-in-law.
Learned counsel for the petitioner further
states that to show her bona fide, the
petitioner would pay every month, one
third of her salary to her mother-in-law
after she contracts marriage with her devar.

5. I have carefully considered the
submissions of the learned counsel for the
petitioner and the learned standing counsel.

6. The petitioner has obtained
employment on compassionate ground
under Rule 5 of the Uttar Pradesh
Recruitment of Dependants of Government
Servant Dying in Harness Rules, 1974
(hereinafter referred to as 'the Rules,
1974'), which is reproduced below:

"5. Recruitment of a member of
the family of the deceased - (1) In case a
Government servant dies in harness after
the commencement of these rules, and the
spouse of the deceased Government servant
is not already employed under the Central
government or a State Government or a
Corporation owned or controlled by the
Central
Government
or
a
State
Government, one member of his family who
is not already employed under the Central
Government or a State Government or a
Corporation owned or controlled by the
Central Government or a State Government
shall, on making an application for the
purpose, be given a suitable employment in
Government Service on a post except the
post which is within the purview of the
Uttar Pradesh Public Service Commission,
in relaxation of the normal recruitment
rules if such person -

(i)
fulfils
the
educational
qualifications prescribed for the post:

Provided
that
in
case
appointment is to be made on a post for
which typewriting has been prescribed as
an
essential
qualification
and
the
dependent of the deceased Government
servant does not possess the required
proficiency in typewriting, he shall be
appointed subject to the condition that he
would acquire the requisite speed of 25
words per minute in typewriting well within
one year and if he fails to do so, his general
annual increment shall be withheld and a
further period of one year shall be granted
to him to acquire the requisite speed in
typewriting and if in the extended period
also he again fails to acquire the requisite
speed in typewriting, his services shall be
dispensed with.

Provided further that in case
appointment is to be made on a post for
which the knowledge of computer operation
and typewriting has been prescribed as an
essential qualification and the dependent of
the deceased Government servant does not
possess
the
required
proficiency
in
computer operation and typewriting, he
shall be appointed subject to the condition
that he would acquire the 'CCC' certificate
in computer operation awarded by the
DOEACC
Society
or
a
certificate
equivalent thereto from an Institution
recognized by the Government together
with the required speed of 25 words per
minute in typewriting well within one year
and, if he fails to do so, his general annual
increment shall be withheld and a further
period of one year shall be granted to him
to acquire the required certificate in
3-5 All. Smt. Santoshi Vs. State of U.P. & Ors.
967
computer operation and the required speed
in typewriting and if in the extended period
also he again fails to acquire the required
certificate in computer operation and the
required speed in typewriting, his services
shall be dispensed with."

(ii) is otherwise qualified for
Government service; and

(iii) makes the application for
employment within five years from the date
of the death of the Government servant:

Provided that where the State
Government is satisfied that the time limit
fixed for making the application for
employment causes undue hardship in any
particular case, if may dispense with or
relax the requirement as it may consider
necessary for dealing with the case in a just
and equitable manner:

Provided further that for the purpose
of the aforesaid proviso, the person concerned
shall explain the reasons and give proper
justification in writing regarding the delay
caused
in
making
the
application
for
employment after the expiry of the time limit
fixed
for
making
the
application
for
employment
along
with
the
necessary
documents/proof in support of such delay and
the Government shall, after taking into
consideration all the facts leading to such
delay, take the appropriate decision."

(2) As far as possible, such an
employment should be given in the same
department in which the deceased Government
servant was employed prior to his death.

(3) Every appointment made under
sub-rule (1) shall be subject to the condition
that the person appointed under sub-rule (1)
shall maintain other members of the family of
deceased Government servant, who were
dependent on the deceased Government
servant immediately before his death and are
unable to maintain themselves.

(4) Where the person appointed
under sub-rule (1) neglects or refuses to
maintain a person to whom he is liable to
maintain under sub-rule (3), his services may
be terminated in accordance with the Uttar
Pradesh Government Servant (Discipline and
Appeal) Rules, 1999, as amended from time to
time."

7. From perusal of Rule 5 of the
Rules, 1974, it is clear that appointment of
dependent of a deceased employee under
Rule 5 of the Rules, 1974 is conditional.
The conditions are provided in sub-Rules
(3) and (4) of Rule 5. Therefore, a person
obtaining appointment under Rule 5(1) of
the Rules, 1974 is bound to maintain other
members of the family of the deceased
government servant, who were dependent
on the deceased government servant
immediately before his death and are
unable to maintain themselves. If the
person so appointed under Rule 5(1) of the
Rules, 1974 neglects or refuses to maintain
a dependent of the deceased employee to
whom he is liable to maintain under subRule
(3),
then
services
of
such
compassionate
appointee
may
be
terminated
under
sub-Rule
(4)
in
accordance with the provisions of the Uttar
Pradesh Government Servant (Discipline
and Appeal) Rules, 1999, as amended from
time to time. But the appointment of the
dependent of the deceased employee under
Rule 5(1) of the Rules, 1974, cannot be
interfered with solely on the ground that he/
she has contracted remarriage. Remarriage
is not restricted by the Rules, 1974.

8. Remarriage is a personal choice of
the
petitioner
who
has
obtained
employment on compassionate ground
under the Rules, 1974, which does not
curtail employment of the petitioner on
remarriage. Even after remarriage, the
petitioner is bound to comply with the
provisions of sub-Rule (3) failing which he
968 INDIAN LAW REPORTS ALLAHABAD SERIES
may suffer consequences under sub-Rule
(4) of Rule 5.

9. Right to marry with person of
choice, is an integral part of Article 21 of
the Constitution of India. Companionship
of choice by remarriage by a widow cannot
be denied as companionship is one of the
faculties by which life can be enjoyed.
Merely
because
compassionate
appointment has been obtained by the
petitioner, she cannot be forced to sacrifice
her fundamental right under Article 21 of
the Constitution of India. In the relevant
Rules as enacted dealing with disciplinary
proceedings, remarriage has not been
mentioned as one of the misconduct,
disqualifications or disabilities. This is
possibly for reason that fundamental rights
under Article 21 of the Constitution of
India, cannot be curtailed on account of
remarriage by a widow. Even if a statutory
provision is enacted to prohibit remarriage
by a widow, as a condition for employment
under the dying in harness Rule, its validity
may be liable to challenge for breach of
fundamental
rights
guaranteed
under
Article 21 of the Constitution of India.

10. In Smt. Subhwanti Devi vs.
Siksha Adhikshak, Basic Siksha, Nagar
Chetra, Allanabad and others, 1988
UPLBEC 80 (paras-8 and 9), a Division
Bench of this court considered termination
of an employee on the ground of
remarriage and held that remarriage may be
a social or biological human necessity or it
may be on account of oppressive or
aggressive nature of certain anti-social
elements but that cannot be made the basis
for termination of service.

11. In Municipal Employees' Union
vs. Additional Commissioner (Water)
DWS & SDU and another, 1996 (73)
FLR 963 (Paras-8 and 10), a Division
Bench of Delhi High Court considered the
similar controversy of remarriage of a
widow and held that there being no
restraint by any personal law against
remarriage, she is entitled to remarry. Even
if a Rule prohibiting remarriage exists, it
may be liable to challenge for breach of
Article 21 of the Constitution of India.
Even if any such condition is imposed in
any contract of employment restricting a
widow to remarry, that would be ultra vires
to the provisions of Article 21 of the
Constitution of India and will be of no
effect in law.

12. In Civil Misc. Writ Petition
No.19016
of
2013
(Smt.
Anikta
Srivastava vs. State of U.P. and others),
decided on 11.04.2013, a Bench of this
court considered similar controversy and
held as under:

"Remarriage is a personal choice
of the petitioner and same can not at all be
curtailed in any manner whatsoever, under
the provisions of Dying in Harness Rule,
1974 as on compassionate appointment
being offered she will have to comply with
the obligation that which has been cast
upon her i.e. to maintain the family
members of deceased and in the event of
failure to maintain, she can be subjected to
the disciplinary proceeding and nothing
beyond the same. Authority concern could
not have insisted and asked the petitioner
to file undertaking that she would not
remarry in future and taking of such an
undertaking would be clearly violative of
Article 21 of the Constitution of India,
inasmuch as right to marry a person of
owns choice has been curtailed.

Apex Court, in the case of Kapila
Hingorani Vs. State of Bihar 2003(6) SCC1
, has proceeded to mention that term life
3-5 All. Yogendra Singh Indolia & Ors.Vs. State of U.P. & Ors.
969
used in Article 21 has a wide and for
reaching concept. It means something more
than mere animal existence and the
inhibition against the deprivation of life
extends to all those limits and localities by
which life is enjoyed. Right to marry person
of ones choice, has been accepted as
integral part of Article 21 of Constitution a
per the judgment of Apex Court, in the case
of Lala Singh Vs. State of U.P. One cannot
be
denied
of
companionship,
as
companionship is one of the faculties by
which life can be enjoyed, and merely
because compassionate appointment ha
been provided, a person cannot be forced
to
sign
affidavit
sacrificing
his/her
fundamental
right,
that
in
future
remarriage will not at all be contracted .
The employer has in effect misused his
dominant status of employer by asking for
such an affidavit. This Court also in the
case of Smt. Subhwanti Devi Vs. Shiksha
Adhikshak 1988 U.P.L.B.E.C. 80 (DB) has
taken the view, that remarriage may be a
social or a biological human necessity, but
same can never be made for termination of
service, and remarriage has not at all been
defined
as
one
of
the
misconduct,
disqualifications or disabilities. "

13. In Special Leave to Appeal (C)
No.16315
of
2017
(Smt.
Premlata
Acharya vs. Suman Acharya and others),
decided on 28.07.2017, Hon'ble Supreme
Court considered similar controversy in the
matter of payment of family pension while
considering the provisions of the Rajasthan
Compassionate
Appointment
of
Dependants
of
Deceased
Government
Servants Rule, 1996 and observed that the
family pension should continue to be paid
to the grandfather of the children for the
benefit of the children as per the Rules and
50% of the salary of the widow who
remarried leaving her children with the
maternal grandfather of the children,
should continue to be paid for the children
until the last of them attains the age of 25
years.

14. For all the reasons afore-stated,
the writ petition is disposed off making it
open to the petitioner that she is free to
contract her remarriage. She shall give an
undertaking in the form of an affidavit
before the respondent Nos.2 and 3 that she
shall pay one third of her salary to her
mother-in-law every month, after she
contracts the remarriage and shall continue
to pay it to her mother-in-law till her
(mother-in-law) life time.

15. With the aforesaid observations,
the writ petition is disposed off.
----------
(2020)03-05ILR A969
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.02.2020

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Writ-A No. 2193 of 2020

Yogendra Singh Indolia & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Anurag Shukla

Counsel for the Respondents:
C.S.C.

A. Service Law - Rule of absorption in
service - regular employment is the
general
rule
-
exception
to
such
employment is litigious employment - it
cannot be claimed as a matter of right -