# Smt. Shehnaz Bano v. State of U.P. and others

- **Citation:** (2008) 3 ILRA 923
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-09-02
- **Case number:** Civil Misc. Writ Petition No. 13863 of 2001
- **Bench:** Rajiv Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shehnaz-bano-v-state-of-u-p-and-others-41271
- **Pages:** 6

## Headnote

Sri. R.K. Tripathi
Sri. R.S. Mishra
Sri. Rudreshwari Prasad
Sri. P.D. Tripathi
S.C.

U.P.
Recruitment
of
Dependants
of
Government Servants (Dying in Harness
)
Rules
1974-Rule-6-Compassionate
appointment-claim of petitioner being
widow of deceased employee having 7
minor children-denied on the ground of
receiving pension-but given to the son of
first wife of the deceased employeewithout considering the hardship and
financial burden to maintain 7 childrenheld-without
considering
comparative
hardship of the claimants rejection of
claim-illegal-consequential
direction
issued.

Held: Para 21

Undisputedly, the petitioner is a widow
who has to sustain ten children, out of
which
most
of
them
are
minors.
Therefore, had the concerned authority
applied
its
mind
correctly
to
the
materials
on
record
and
given
consideration to the provisions of Rules
7 of 1974 Rules, it is the petitioner
whose
claim
is
much
stronger
in
comparison to respondent no.4 and she
should
have
been
given
suitable
appointment on Class IV post. The
impugned order dated 23.3.2001 has
been passed without considering the
relevant Rules and wrongly giving too
much weightage to the provisions of
Paragraph 9 of the Government Order
dated 4.9.2000. It is also relevant to
point out that in the said impugned order
dated 23.3.2001, there is no mention
that
the
comparative
hardship
was
considered and the claim of respondent
no.4 was found genuine. It is to be kept
in mind that while considering as to who
is
to
be
given
employment,
the
paramount factor which shall be taken
into consideration is the overall interest
of the welfare of the entire family.
Case law discussed:
(2001) 1 UPLBEC 706.

## Text

3 All] Smt. Shehnaz Bano V. State of U.P. and others
923
Consequently,
the
impugned
order
ceasing the financial and administrative
powers of the petitioner is not sustainable
and is quashed. The writ petition is
allowed.

7. It would be open to the District
Magistrate to pass a fresh order in
accordance with the provisions of Section
95(1)(g) of the Act read with the Rules of
1997.

Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.09.2008

BEFORE
THE HON'BLE RAJIV SHARMA, J.

Civil Misc. Writ Petition No. 13863 of 2001

Smt. Shehnaz Bano

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

Counsel for the Petitioner:
Sri. B.D. Mandhyan
Sri Satish Mandhyan

Counsel for the Respondents:
Sri. R.K. Tripathi
Sri. R.S. Mishra
Sri. Rudreshwari Prasad
Sri. P.D. Tripathi
S.C.

U.P.
Recruitment
of
Dependants
of
Government Servants (Dying in Harness
)
Rules
1974-Rule-6-Compassionate
appointment-claim of petitioner being
widow of deceased employee having 7
minor children-denied on the ground of
receiving pension-but given to the son of
first wife of the deceased employeewithout considering the hardship and
financial burden to maintain 7 childrenheld-without
considering
comparative
hardship of the claimants rejection of
claim-illegal-consequential
direction
issued.

Held: Para 21

Undisputedly, the petitioner is a widow
who has to sustain ten children, out of
which
most
of
them
are
minors.
Therefore, had the concerned authority
applied
its
mind
correctly
to
the
materials
on
record
and
given
consideration to the provisions of Rules
7 of 1974 Rules, it is the petitioner
whose
claim
is
much
stronger
in
comparison to respondent no.4 and she
should
have
been
given
suitable
appointment on Class IV post. The
impugned order dated 23.3.2001 has
been passed without considering the
relevant Rules and wrongly giving too
much weightage to the provisions of
Paragraph 9 of the Government Order
dated 4.9.2000. It is also relevant to
point out that in the said impugned order
dated 23.3.2001, there is no mention
that
the
comparative
hardship
was
considered and the claim of respondent
no.4 was found genuine. It is to be kept
in mind that while considering as to who
is
to
be
given
employment,
the
paramount factor which shall be taken
into consideration is the overall interest
of the welfare of the entire family.
Case law discussed:
(2001) 1 UPLBEC 706.

(Delivered by Hon'ble Rajiv Sharma, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel.

2. The present writ petition has been
filed by the wife of Tufail Ahmad for a
direction to the competent to consider her
case
for
compassionate
appointment
against a post of Category IV and for
quashing the communique/order dated
23.2.2001, passed by the Secretary, Basic
Shiksha Parishad.
924 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

3. Factual matrix of the case are that
deceased Tufail Ahmad had solemnised
marriage with Smt. Qamar Jahan and out
of the said wedlock, three children were
born, i.e., two sons and a daughter. Smt.
Qamar Jahan wife of Tufail Ahmad died
on 14.3.1973. Thereafter, late Tufail
Ahmad married the present petitioner and
was
blessed
with
ten
children.
Mohammad Azmal (respondent no.4) and
his brother, who are the sons of Tufail
Ahmad from the first Wife, started living
separately and respondent no.4 started
doing the business of fruits. The daughter
born out of the wedlock from the first
wife was got married by the deceased in
his life time. Tufail Ahmad husband of
the petitioner expired on 13.11.1999
leaving behind the petitioner and ten
children. A succession certificate was also
obtained by the petitioner from the
District Magistrate.

4. Counsel for the petitioner pointed
out that since the name of the petitioner
was recorded as wife of Tufail Ahmad in
service record, admissible dues were paid
to the petitioner and now family pension
is also being paid to her. After the death
of the husband, the petitioner moved an
application for granting appointment in
relaxation
to
normal
rules
on
compassionate grounds for her son
Zunaid Ahmad. However, since he
wanted to study further, the petitioner
then applied for her own appointment on
31.3.2000.
In
the
meantime,
the
respondent no.4, who was born from the
first
wife
without
impleading
the
petitioner, filed a writ petition no. 28995
of 2000 before this Court seeking a
direction
to
consider his case for
compassionate appointment. Consequent
to the order of this Court, the Zila Basic
Shiksha Adhikari, Allahabad issued a
letter dated 26.9.2000 to the respondent
no.4 to appear before him. When the
present petitioner came to know about the
said letter, she also gave an application
staking her claim in preference to that of
respondent no.4 as her financial condition
was more precarious because she has to
take care and support ten children and it
has become very difficult for her to
maintain all the members of the family in
a meagre amount of pension and as such
she is in dire need of a job. On
16.10.2000, the petitioner as also the
respondent no.4 appeared before Zila
Basic Shiksha Adhikari, who after hearing
the respective claims, was satisfied that
the claim of the petitioner is bona fide and
asked her to give application in writing,
which was given by the petitioner on
18.10.2000.

5. Later on, Secretary, U.P. Basic
Shiksha Parishad, Allahabad vide letter
dated 23.3.2001 directed for giving
appointment
to
respondent
no.4
mentioning therein that in para 9 of the
Government Order, the dependent son of
deceased has got first preference. The said
order of the Secretary, U.P. Basic
Shikasha Parishad has been assailed in the
present writ petition interalia on the
grounds that the Secretary wrongly
interpreted that the son is at the top of the
list of preference vide order dated
23.3.2001. The Secretary did not consider
the vital fact that it is the petitioner who is
looking after the children of late Tufail
Ahmad. The petitioner has no other
source of livelihood except the meagre
pension which she is getting. Her husband
was the only bread earner of the family.

6. Counsel for the petitioner further
submitted that the impugned order is
arbitrary and unjust as the same has been
3 All] Smt. Shehnaz Bano V. State of U.P. and others
925
passed without considering the attending
circumstances and the important fact that
the deceased Tufail left behind a widowed
wife (petitioner) and ten children. The
reasoning that the son is at the top of the
list as given in the Government Order
dated 4th September, 2000, reference of
which has been given In the impugned
order, is incorrect. In fact, the wife or
husband
is
to
be
given
top
priority/preference in such compassionate
appointment.

7. Mohd. Ajmal, Son of Tufail
Ahmad, who has been arrayed as
respondent no.4 in the present writ
petition
and
in
whose
favour
the
impugned order dated 23.3.2001 has been
issued, filed a counter affidavit denying
the allegations made in the writ petition.

8. In the counter affidavit, it has
been mentioned that he is the only person
entitled to get job after the death of his
father. It is incorrect to say that he is
engaged in the business of fruits and is
well of. As a matter of fact, he is doing
labour work in order to sustain him and is
in dire need of job. There is no infirmity
in the impugned order which has been
passed after considering the fact that the
claim of the respondent no.4 is genuine
for compassionate appointment. It has
further been indicated that the petitioner is
not even class 5th passed, whereas under
the Government Order, it is provided that
one should have educational qualification
upto class 5th and, therefore, the financial
the petitioner cannot be considered for
appointment. Furthermore, the financial
condition of the petitioner is much better
than the answering respondent no4 as he
is at the verge of starvation and is unable
to provide food to the family. He also
pointed out that it is incorrect to say that
he is having two wives, as alleged by the
petitioner.

9. Refuting the allegations of
answering respondent no.4, counsel for
the petitioner submitted that after the
death of Tufail Ahmad, the petitioner
being his legally wedded wife has
stronger claim than answering respondent
no.4.
Further,
for
compassionate
appointment,
the
educational
qualification, do not have meaning at all.
The educational qualification and age bar
are
usually
relaxed
in such cases
otherwise
the
very
purpose
of
appointment on compassionate ground
would be frustrated.

10. At the outset, it would be
relevant to point out that on 13.4.2001,
this Court directed all the respondents to
file counter affidavit and passed a detailed
order
staying
the
operation
and
implementation
of
the
order
dated
23.3.2001 issued by the Secretary, U.P.
Basic Shiksha Parishad.

11. In order to appreciate the rival
submissions, it is relevant to peruse the
relevant rules.

12. The Uttar Pradesh Recruitment
of Dependants of Government Servants
(Dying in Harness) Rules, 1974 has been
framed in exercise of the powers
conferred
by
Article
309
of
the
Constitution of India. The Uttar Pradesh
Recruitment
of
Dependants
of
Government Servants Dying in Harness
Rules, 1974 (in short referred to as
"Dying in Harness Rules, 1974") are
special set of rules, which have been
made for providing a source of livelihood,
and to give some respite to the members
of the deceased Government servant's
926 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
family at a time when the family is
suddenly struck with a calamity where the
sole bread earner dies. The overall idea
and concept of these rules is to keep the
family in main streamline of the society
for which economic security and social
status is to be provided by the State
Government.

13. Initially, these Rules were
applicable to the Government Servant,
deceased Government Servant and the
family. Rule 2(C) where the word 'family'
has been defined reads as under:-
"family" shall include the following
relations of the deceased Government
servant:

(i) wife or husband.
(ii) sons;
(iii) unmarried and widowed daughters

14. Rule 3 or the said rules makes
these rules applicable to the recruitment
of
dependants
of
the
deceased
government servants to public services
and posts in connection with the affairs of
the State of Uttar Pradesh, except services
and post which are within the purview of
the
Uttar
Pradesh
Public
Service
Commission.

15. Rule 4 gives an overriding effect
to those rules by providing that they shall
have the effect notwithstanding anything
to the contrary contained in any rules,
regulations or orders in force at the
commencement of those rules. Rule 5 of
the Dying in Harness Rules, 1974 deals
with the recruitment of the member of the
family of the deceased on a suitable post.
Rule 6 provides that an application for
appointment under these Rules shall be
addressed to the appointing authority in
respect of the post for which appointment
is sought.

16. Rule 7 which is relevant for the
purposes of adjudicating the present
controversy reads as under:-

"7. Procedure when more than one
member of the family seeks employment-
If more than one member of the family of
the deceased Government servant seeks
employment under these rules, the Head
Officer shall decide about the suitability
of the person for giving employment. The
decision will be taken keeping in view
also the overall interest of the welfare of
the entire family particularly the widow
and the minor members thereof. "

17. It is pertinent to mention that
Dying in Harness Rules, 1974 were
amended from time to time and by Uttar
Pradesh Recruitment of Dependants of
Government Servants Dying in Harness
(Sixth Amendment) Rules 2001, the
relations included in the family of the
deceased government servant have been
described, which reads as under:-

1. Wife or Husband
2. Son
3. Unmarried daughters and widowed
daughters.
4.
Dependant
unmarried
brother,
unmarried sister and widowed mother of
the deceased government servant, if he
was unmarried.

18. On June 28th, 2006, the State
Government
brought
Uttar
Pradesh
Recruitment
of
Dependants
of
Government· Servants Dying in Harness
(Seventh
Amendment)
Rules,
2006,
whereby in Rule 5 it has been inserted in
clause (3) and (4) as under:-
3 All] Smt. Shehnaz Bano V. State of U.P. and others
927
(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 service
may be terminated in accordance with the
Uttar
Pradesh
Government
Servant
(Discipline and Appeal) Rules, 1999, as
amended from time to time.

19. Here, it would be relevant to
point out that the State Government
issued a Government Order No. 5193/155-2000-400(222)/99, dated 4th September,
2000 with regard to the appointment of
dependants of teachers/employees in the
establishment of Basic Shiksha Parishad.
The said Government Order lays down
the conditions and the procedure to be
followed for such appointment. Para 9 of
the said Government Order says that the
dependants of teachers/employees of U.P.
Basic Shiksha Parishad means the son of
the employee, unmarried or widowed
daughter,
wife
or
husband
of
the
deceased.

20. In the said Government Order
either in Para 9 or any other Paragraphs
there is no mention of any preference to
be given to the dependants of the
deceased. Para 9 of the Government
Order dated 4th September, 2000 on which
reliance has been placed by respondent
no.1, while issuing directions vide order
dated 23.3.2001. It only provides the
meaning of the words dependants of
teachers/employees. Mere mentioning the
son of the employee first, will not lead to
an inference that it is the seriatum which
is to be followed while considering the
appointment on compassionate ground.
The inference drawn by the Secretary,
U.P. Basic Shiksha Parishad that as the
deceased's son is mentioned first, as such,
the respondent no.4 is entitled to be given
appointment, is wholly erroneous and
unjustified. The impugned order is also
against Rule 7 of the 1974 Rules as while
considering the appointment where more
than one member of the family claims
employment, the appointing authority is
under an obligation to decide the same
keeping in view of the overall interest of
the
welfare
of
the
entire
family
particularly the widow and the minor
members thereof. Moreover, the law is
well settled that the executive instructions
cannot override the Rules and as such the
concerned authority should have given
due regard to the relevant Rules, 1974
while passing the impugned order.

21. Undisputedly, the petitioner is a
widow who has to sustain ten children,
out of which most of them are minors.
Therefore, had the concerned authority
applied its mind correctly to the materials
on record and given consideration to the
provisions of Rules 7 of 1974 Rules, it is
the petitioner whose claim is much
stronger in comparison to respondent no.4
and she should have been given suitable
appointment on Class IV post. The
impugned order dated 23.3.2001 has been
passed without considering the relevant
Rules and wrongly giving too much
weightage to the provisions of Paragraph
9 of the Government Order dated
4.9.2000. It is also relevant to point out
that in the said impugned order dated
928 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
23.3.2001, there is no mention that the
comparative hardship was considered and
the claim of respondent no.4 was found
genuine. It is to be kept in mind that while
considering as to who is to be given
employment, the paramount factor which
shall be taken into consideration is the
overall interest of the welfare of the entire
family.

22. In the instant case, income out of
meagre pension was not sufficient to
maintain, and, therefore, to tide over the
financial crisis on the sudden death of the
employee
refusing
appointment
on
compassionate ground to the petitioner is
wholly unjustified. I am of the view that
the financial position of the family of the
deceased
employee
requires
such
compassionate appointment on the facts
of the case. It may be added that the
receipt of family pension by the widow
cannot be taken to be a good ground for
rejecting the case for appointment on
compassionate
ground.
It
may
be
mentioned that this Court in the case of
Committee of Management, R.B. Rao
Intermediate College, Deoria and others
Vs.
Joint
Director
of
Education,
Gorakhpur and others (2001) 1 UPLBEC
706 took a view that a widow cannot be
denied appointment on compassionate
ground just because of its illiteracy.

23. Looking to the pathetic
condition of the family and financial
stress and strain that it has undergone all
these years, the order dated 23.3.2001 was
not justified and reflects non-application
of mind. The respondents have not at all
taken
into
account
the
tremendous
difficulties that the petitioner and his
family faced upon the death of their head
of family way back in the year 1999.

24. For the reasons aforesaid, the
order dated 23.3.2001, passed by the
Secretary, U.P. Basic Shiksha Parishad is
hereby
quashed.
The
concerned
authorities (respondent nos. 1 to 3) are
directed to consider the claim of the
petitioner for compassionate appointment
after considering the provisions of Rules
of Dying in Harness Rules, 1974, in the
light
of
the
observations
made
hereinabove. The authorities shall pass the
appropriate orders within a maximum
period of six weeks' considering the fact
that the poor widowed lady is litigating
this matter since last seven years to get
justice.

25. For the foregoing reasons, writ
petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.08.2008

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE A.P. SAHI, J.

First Appeal From Order No.947 of 2006

The New India Assurance Co. Ltd

...Appellant
Versus
Smt. Suman and others ...Respondents

Counsel for the Appellant:
Sri. Arvind Kumar

Counsel for the Respondents:
Sri. R.K. Porwal

Motor Vehicle Act 1988-173-Rejection of
application filed under Section 166-after
examining the witness-appeal on the
ground after examining the witness
about rash and negligence-cannot be
dismissed as not maintainable hence
illegal-held-order
passed
by
claim