# Smt. Sudha Jain v. State of U.P. and others

- **Citation:** (2011) 2 ILRA 612
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-04-29
- **Case number:** Civil Misc. Writ Petition No. 30654 of 2008
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sudha-jain-v-state-of-u-p-and-others-41939
- **Pages:** 4

## Headnote

Constitution
of
India-Article
226compassionate
appointment-widowed
daughter-in-law-not
within
the
definition of family-can not be appointed
on compassionate grounds.

Held: Para 14

So far as the divorced daughter-in-law is
concerned, the issue stands decided
under the judgement of this Court in the
case of Akhilesh Tiwari vs. State of U.P.
and others reported in 2006 (3) ESC
1865 (All).
Case law discussed:
[2009 (27) LCD 995]; 2003(40 AWC 3205;
2006(5) ADJ 501; [2011 (3) ADJ 432 (FB)];
2006 (3) ESC 1865 (All)

## Text

612 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

The issue does arise as to what relief in
the facts of the case the petitioner be
granted after setting aside the order of the
Vice Chancellor. It is admitted position that
the petitioner is practicing as an Advocate
even since prior to 1990. It is not the case of
the petitioner that at any point of time he
had surrendered his licence to practice as an
Advocate. Further the petitioner has already
attained the age of superannuation. This
Court records that there cannot be an order
of reinstatement or for payment of back
wages to the petitioner on the principle of
'No Work No Pay' in the said factual
background. However, the issue as to
whether the petitioner would be entitled to
any relief for the period of suspension or till
passing of the order of termination as
impugned in the present writ petition, can
be examined by the Vice Chancellor
himself only after he adjudicate upon the
explanation furnished by the petitioner
afresh and take a decision supported by
reasons in the matter of disciplinary
proceedings taken against the petitioner. All
issues in that regard are left open.

11. Accordingly, the writ petition is
allowed. The order of the Vice Chancellor
is hereby quashed. Let the Vice Chancellor
take a fresh decision in the matter on the
basis of the records available, supported by
cogent reasons, preferably within three
months from the date a certified copy of this
order is filed before him.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.04.2011

BEFORE
THE HON'BLE ARUN TANDON,J.

Civil Misc. Writ Petition No. 30654 of 2008

Smt. Sudha Jain

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

Counsel for the Petitioner :
Sri H.N. Pandey

Counsel for the Respondent:
C.S.C.
Sri Ajay Kumar Sharma

Constitution
of
India-Article
226compassionate
appointment-widowed
daughter-in-law-not
within
the
definition of family-can not be appointed
on compassionate grounds.

Held: Para 14

So far as the divorced daughter-in-law is
concerned, the issue stands decided
under the judgement of this Court in the
case of Akhilesh Tiwari vs. State of U.P.
and others reported in 2006 (3) ESC
1865 (All).
Case law discussed:
[2009 (27) LCD 995]; 2003(40 AWC 3205;
2006(5) ADJ 501; [2011 (3) ADJ 432 (FB)];
2006 (3) ESC 1865 (All)

(Delivered by Hon'ble Arun Tandon,J.)

1. Petitioner before this Court made
an
application
for
compassionate
appointment on the allegation that her
mother-in-law expired during harness
and that her husband had pre-deceased
the mother-in-law meaning thereby that
the petitioner was widowed doughtier-inlaw of the deceased employee. This
2 All] Smt. Sudha Jain V. State of U.P. and others
613
application
of
the
petitioner
was
considered and appointment was offered
to her. However, on complaints being
made,
the
appointment
has
been
cancelled under the impugned order
dated 28.4.2008. Hence this petition.

2. On behalf of the petitioner, it is
contended that the impugned order has
been passed without opportunity of
hearing to the petitioner and further that
the same proceeds on presumption that
there is a dispute in respect of the right
of the petitioner for such compassionate
appointment. He submits that the order
cannot be legally sustained.

3. On behalf of the respondents, it
is pointed out that a Division Bench
judgment of this Court in the case of
Basic Shiksha Adhikari, Hardoi vs.
Madhu Mishra and others reported in
[2009 (27) LCD 995] has specifically
held that widowed daughter-in-law of the
deceased employee is not included in the
scheme providing for compassionate
appointment and, therefore, petitioner
can have no claim for such appointment.
Irrespective of the reasons assigned in
the impugned order since the petitioner
was not within the category of persons
entitled for compassionate appointment,
this Court may not interfere in this
matter inasmuch as any order in favour
of the petitioner would only perpetuate
an illegal appointment.

4. Person seeking impleadment as
set up her independent claim for
compassionate
appointment
on
the
ground that she is divorced daughter of
the deceased employee.

5. Shri H.N. Pandey, counsel for
the petitioner in rejoinder affidavit
submits that appointments has been
offered
to
her
in
terms
of
the
Government Order dated 04.04.2000 and
that the authorities have interpreted that
the widowed daughter-in-law is within
the definition of family of the deceased
employee. He contends that the person
seeking impleadment has not been
divorced. The allegations in that regard
are false. She has been married and there
is no decree of divorce granted by any
Court of law. In any case even a divorced
daughter-in-law is not entitled for such
compassionate appointment.

6. I have heard counsel for the
parties and have examined the records.

7. The issue with regard to the
entitlement of a widowed doughtier-inlaw being within the scheme providing
for compassionate appointment, has
specifically been considered by the
Division Bench of this Court in the case
of Basic Shiksha Adhikari (supra).
After overruling the judgments of the
Single Judge reported in 2003 (4) AWC
3205 and reported in 2006 (5) ADJ 501
the Division Bench after considering the
definition of 'family' as contained under
the U.P. Recruitment of Dependants of
Government Servants Dying-in-harness
Rules, 1974, which have been applied to
the employees of Basic Shiksha Parishad
under
Government
Order
dated
04.09.2000 in exercise of powers under
Section 13(1) of U.P. Basic Shiksha
Adhiniyam, 1972 has proceeded to hold
that daughter-in-law is not covered
within the definition of family, hence she
is not entitled to appointment on
compassionate ground. Reference para
14 of the said judgment which is quoted
here-in-below:
614 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

" ....... 14. "Hard case makes bad
law" is a concept well known in Courts
of Law. In the cases of Urmila Devi
(supra) and Sanyogita Rai (supra), much
emphasis has been laid on the word
''includes' in the definition of ''family'. It
is true that inclusive definition is often
used in the interpretation clauses in
order to enlarge the meaning of the word
but
the
said
principle
does
not
contemplate inclusion of such persons
which has no nexus with the description
of the relations mentioned in the Rules.
Rule 2(c) of the Rules 1974 does include
''widowed daughter' but does not include
daughter-in-law.
The
Rule-making
Authority
having
not
included
''widowed daughter-in-law', it would
mean adding something in the Rule
which the Rule-making authority did
not intend to include. In our opinion,
enlarging the meaning of the word would
mean adding words, which is not
permissible".

8. The judgment of the Division
Bench in the case of Basic Shiksha
Adhikari (Supra) was referred for
consideration to a larger Bench. The Full
Bench in the case of U.P. Power
Corporation Ltd. vs. Smt Urmila Devi
reported in [2011 (3) ADJ 432 (FB)]
specifically held that the Division Bench
had specifically overruled the judgment
of the Single Judge in the case of Urmila
Devi (supra) and, therefore, the reference
as made itself was not maintainable.

9. However, the Full Bench
proceeded
to
make
certain
recommendations
for
the
widowed
doughtier-in-law being included in the
definition of family for the purpose of
compassionate appointment and, therefore
directed that the State Government may
consider this aspect and take appropriate
decision so that widowed doughtier-inlaw also become entitled to be considered
for compassionate appointment, if other
criterias are satisfied. Reference para 8 of
the Full Bench judgment which reads as
follows:

"We must, however, note one feature
of the definition of the word 'family' as
generally contained in most Rules. The
definition of 'family' includes wife or
husband; sons; unmarried and widowed
daughters; and if the deceased was an
unmarried
government
servant,
the
brother, unmarried sister and widowed
mother dependent on the deceased
government servant. It is, therefore, clear
that a widowed daughter in the house of
her parents is entitled for consideration
on compassionate appointment. However,
a widowed daughter-in-law in the house
where she is married, is not entitled for
compassionate appointment as she is not
included in the definition of 'family'. It is
not possible to understand how a
widowed daughter in her father's house
has a better right to claim appointment on
compassionate basis than a widowed
daughter-in-law in her father-in-law's
house. The very nature of compassionate
appointment is the financial need or
necessity of the family. The daughter-inlaw on the death of her husband does not
cease to be a part of the family. The
concept that such daughter-in-law must
go back and stay with her parents is
abhorrent to our civilized society. Such
daughter-in-law must, therefore, have
also
right
to
be
considered
for
compassionate appointment as she is part
of the family where she is married and if
staying with her husband's family. In this
context, in our opinion, arbitrariness, as
presently existing, can be avoided by
2 All] Virendra Chaudhari V. State of U.P. and others
615
including the daughter-in-law in the
definition
of
'family'.
Otherwise,
the
definition to that extent, prima facie, would
be irrational and arbitrary. The State,
therefore, to consider this aspect and take
appropriate steps so that a widowed
daughter-in-law like a widowed daughter, is
also entitled for consideration by way of
compassionate
appointment,
if
other
criteria is satisfied."

10. It is therefore clear that the Full
Bench of this Court has not found any error
in the Division Bench judgement of this
Court in the case of Basic Shiksha Adhikai,
(supra). The Full Bench only proceeded to
make a recommendation to the State
Government to amend the definition of
family so as to include the widowed
daughter-in-law within the ambit of family.

11. It is not the case of the petitioner
that such amendment in the definition of
'family' has been carried out till date. The
suggestion made by the Full Bench, it
appears that has not found favour with the
State Government. The law as it stands
today cannot be by passed by this Court
merely because certain suggestions had
been made by the Full Bench for amending
the definition of family.

12. In the facts and circumstances of
the case, this Court has no hesitation to hold
that widowed daughter-in-law is not within
the definition of family for being considered
for appointment on compassionate ground,
in view of the Division Bench of this Court
in the case of Basic Shiksha Adhikari
(supra).

13. This Court will not interfere with
the impugned order inasmuch as any order
to the contrary will result in an illegal order
of appointment in favour of the petitioner
being perpetuated, which can never be the
outcome of a judgment of the writ Court.

14. So far as the divorced daughter-inlaw is concerned, the issue stands decided
under the judgement of this Court in the
case of Akhilesh Tiwari vs. State of U.P.
and others reported in 2006 (3) ESC 1865
(All).

15. Writ petition is dismissed with the
observations made.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.04.2011

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 30965 of 2010

Virendra Chaudhari

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

Counsel for the Petitioner:
Sri Anupam Kulshrestha

Counsel for the Respondent:
C.S.C.

Indian Stamp Act-1899-Art-5- Schedule 1B-Charge of Stamp Duty-instrument being
"agreement to sale" without possessiononly on half of consideration stamp dutypayable additional demand of stamp duty
treating
sale
on
full
considerationmanifestly
erred
in
determining
the
sufficiency of stamp duty.

Held: Para 3

Admittedly the instrument in question is
an agreement to transfer 2 Acres 50
Decimals of land without possession for a
sale
consideration
of
Rs.32,000/-.
Therefore, in accordance with Article 5(b1) of Schedule 1-B of the Act, stamp duty