# Sulochana Devi v. State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 703
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-25
- **Case number:** Service Single No. 21802 of 2020
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sulochana-devi-v-state-of-u-p-ors-45503
- **Pages:** 3

## Headnote

A. Service Law-Compassionate Appointment
-U.P.
Recruitment
of
Dependents
of
Government Servant Dying in Harness Rules,
1974: Rules 2(c), 2(c)(iii) - Exclusion of married
daughters from the ambit of the expression 'family'
has been held to be illegal and unconstitutional,
being violative of Articles 14 and 15 of the
Constitution of India. (Para 10)

B. A statute or a provision of statute which is
struck
down
as
being
ultra
vires
to
Constitution
of
India
or
any
of
the
fundamental rights applies retrospectively
since it goes against the very basic tenets of
the Constitution of India - The striking down of
exclusion of married daughter from the ambit of
family being held to be violative of fundamental
rights, operates retrospectively. (Para 11)

In the present case, the rejection order has
been passed in the year 2019 while the
judgment
rendering
the
abovementioned
provision unconstitutional has been given in the
year 2015. Petitioner's candidature was kept
alive by opposite parties themselves till the year

## Text

12 All. Sulochana Devi Vs. State of U.P. & Ors.
703
Reports 938 (2) holds that writ of quo
warrant, is not a motion of course and it is in the
discretion of the Court to issue it considering the
circumstances of the case. Frederic Guilder
Julius v. The Right Rev. The Lord Bishop of
Oxford: The Rev. Thomas Thellusson Carter, 5
Appeal Cases 214 (3) also states that the issue of
writ of quo warranto is in the discretion of a
Court. The Canadian view as stated in The King
exrel Boudret v. Johnston, (1923) 2 Deminion
Law Reports 278 (4) is that the Court has to take
into
consideration
public
interest,
the
consequences to follow the issue of a writ of quo
warranto and all the circumstances of the case.
These general propositions have been accepted
in America as appears from the statements
contained in sections 5, 9, 10 and 18 in American
Jurisprudence, Second Edition, Volume 65.

27. In the instant case, the allegations are
made against the opposite party no.2 and even
taking it for granted that there is any misuse of
power, and consequentially the contention that
the said extension has been made without
approval without any supporting material,
argument of non-approval of the cabinet as
required under the provisions of Fundamental
Rules, I do not find anything against the opposite
party no.3 and, therefore, mere submission of
illegality in the appointment of opposite party
no.3 would not attract a writ of quo-warranto.

28. In the light of the above discussion and
decisions, prayer sought for quo-waranto is not
maintainable. Accordingly, writ petition is
dismissed. No costs.
----------
(2020)12ILR A703
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.11.2020
BEFORE

THE HON'BLE MANISH MATHUR, J.

Service Single No. 21802 of 2020
Sulochana Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rajesh Kumar Verma.

Counsel for the Respondents:
C.S.C., Rajiv Singh Chuahan

A. Service Law-Compassionate Appointment
-U.P.
Recruitment
of
Dependents
of
Government Servant Dying in Harness Rules,
1974: Rules 2(c), 2(c)(iii) - Exclusion of married
daughters from the ambit of the expression 'family'
has been held to be illegal and unconstitutional,
being violative of Articles 14 and 15 of the
Constitution of India. (Para 10)

B. A statute or a provision of statute which is
struck
down
as
being
ultra
vires
to
Constitution
of
India
or
any
of
the
fundamental rights applies retrospectively
since it goes against the very basic tenets of
the Constitution of India - The striking down of
exclusion of married daughter from the ambit of
family being held to be violative of fundamental
rights, operates retrospectively. (Para 11)

In the present case, the rejection order has
been passed in the year 2019 while the
judgment
rendering
the
abovementioned
provision unconstitutional has been given in the
year 2015. Petitioner's candidature was kept
alive by opposite parties themselves till the year
2019. Therefore, by prospective application of
the aforesaid judgment, petitioner's candidature
could not been rejected on the ground of being
a married daughter. (Para 13)

Writ Petition allowed. (E-4)

Precedent followed:

1. Smt. Vimla Srivastava Vs St. of U.P. & anr.,
[Writ-C No. 60881 of 2015] (Para 4)

2. Assistant Commissioner, Income Tax, Rajkot
Vs Saurashtra Kutch Stock Exchange Ltd.,
(2008) 14 SCC 171 (Para 12)

(Delivered by Hon'ble Manish Mathur, J.)
704 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri Rajesh Kumar Verma,
learned counsel for petitioner, learned State
Counsel appearing on behalf of opposite parties
1 and 3 and Mr. Rajiv Singh Chauhan, learned
counsel for opposite party no.2.

2. Petition has been filed against order
dated 04.04.2019 whereby petitioner's
candidature for compassionate appointment
in terms of U.P. Recruitment of Dependents
of Government Servants Dying in Harness
Rules, 1974 has been rejected on the
ground that petitioner has been indicated in
the records as a married lady, which does
not come within the definition of family in
the aforesaid rules.

3. Learned counsel for petitioner
submits that aforesaid ground for rejection is
totally untenable in view of a Division Bench
decision of this Court rendered in Smt. Vimla
Srivastava v. State of U.P. and another [Writ -
C No.60881 of 2015] in which it has been
categorically held that the exclusion of married
daughters from the ambit of the expression
'family' is unconstitutional. As such it is
submitted that petitioner is entitled to be
considered for compassionate appointment in
terms of aforesaid Rules of 1974.

4. Learned counsel appearing for
opposite party no.2 has opposed the petition
with submission that petitioner's father passed
away in the year 1985 and therefore her
candidature cannot be considered after such a
long lapse of time since it would render fruitless
the very purpose of compassionate appointment
with regard to providing succour to a dependent
family instantly.

5. It has also been submitted that
judgment
rendered
in
Smt.
Vimla
Srivastava(supra) would be applicable
only prospectively and not retrospectively
since petitioner's rights stand crystallized as
in year 1985 and not in the year 2019.

6. Upon consideration of material on record and
submissions advanced by learned counsel for the
parties, it is apparent that by means of impugned order,
candidature of petitioner has been rejected only on the
ground that she is a married lady and, therefore, would
not come within the meaning of 'family' in terms of
Rules of 1974.

7.

This
Court
in
Smt.
Vimla
Srivastava(supra) has clearly held that the
exclusion of married daughters from the ambit of
the expression 'family' in Rules 2(c) of Rules of
1974 is illegal and unconstitutional. The word
'unmarried' in rule 2(c) (iii) of the said Rules was
struck down.

8. It is quite clear that impugned order has
rejected petitioner's candidature only on that single
ground of petitioner being married and neither
eligibility nor any other factor has been considered
by the authorities.

9. So far as submission of learned counsel
for opposite parties with regard to prospective
application
of
judgment
in Smt. Vimla
Srivastava(supra) is concerned, it is clear from a
reading of aforesaid judgment that the exclusion
of married daughters from the ambit of the
expression 'family' has been held to be illegal and
unconstitutional, being violative of Articles 14 and
15 of the Constitution of India.

10. A statute or a provision of statute
which is struck down as being ultra vires to
Constitution of India or any of the
fundamental rights applies retrospectively
since it goes against the very basic tenets of
the Constitution of India. As such, the
striking down of exclusion of married
daughter from the ambit of family being
held to be violative of fundamental rights,
operates retrospectively.

11. It has been held by Hon'ble the
Supreme Court of India in Assistant
12 All. Devi Saran Yadav Vs. Khadi & Vill. Indus. Commission & Ors.
705
Commissioner, Income Tax, Rajkot v.
Saurashtra Kutch Stock Exchange Ltd.
reported in (2008) 14 SCC 171 as under:-

"35. In our judgment, it is also well settled that
a judicial decision acts retrospectively. According to
Blackstonian theory, it is not the function of the court
to pronounce a ?new rule? but to maintain and
expound the ?old one?. In other words, Judges do not
make law, they only discover or find the correct law.
The law has always been the same. If a subsequent
decision alters the earlier one, it (the later decision)
does not make new law. It only discovers the correct
principle of law which has to be applied
retrospectively. To put it differently, even where an
earlier decision of the court operated for quite some
time, the decision rendered later on would have
retrospective effect clarifying the legal position which
was earlier not correctly understood."

"36. Salmond in his well known work
states:

The theory of case law is that a judge does
not make law; he merely declares it; and the
overruling of a previous decision is a declaration
that the supposed rule never was law. Hence any
intermediate transactions made on the strength of
the supposed rule are governed by the law
established in the overruling decision. The
overruling is retrospective, except as regards
matters that are res judicatae or accounts that have
been settled in the meantime. (emphasis
supplied)"

"37. It is no doubt true that after a historic
decision in Golak Nath v. State of Punjab [AIR
1967 SC 1643: (1967) 2 SCR 762] this Court
has accepted the doctrine of? prospective
overruling?. It is based on the philosophy:

The past cannot always be erased by a
new judicial declaration.

It may, however, be stated that this is
an exception to the general rule of the
doctrine of precedent."

13. Even otherwise the rejection order
has been passed in the year 2019 while the
judgment has been rendered in Smt. Vimla
Srivastava(supra) in the year 2015. Even by that
consideration, petitioner's candidature was kept
alive by opposite parties themselves till the year
2019 and even by prospective application of
aforesaid judgment, petitioner's candidature
could not have been rejected on that ground.

14. In view of aforesaid facts, impugned
order dated 04.04.2019 is clearly unsustainable
and is quashed by issuance of a writ in the nature
of Certiorari. Opposite party no.2, District Basic
Education Officer, Unnao is directed to consider
the claim of petitioner for compassionate
appointment afresh considering her eligibility for
the same in terms of aforesaid Rules of 1974 and
her candidature shall not be rejected or excluded
from consideration only on the ground of her
marital status. Aforesaid consideration shall be
done by said opposite party by a reasoned and
speaking order within a period of six weeks from
the date a copy of this order is produced before
said authority.

15. Consequently, the writ petition
stands allowed at the admission stage with
consent of the parties.

16. The petitioner shall be at liberty to
approach the said authority with regard to
any pending pensionary dues of her late
father. The same shall also be considered
within aforesaid time period.
----------
(2020)12ILR A705
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.11.2020

BEFORE

THE HON'BLE MANISH KUMAR, J.

Service Single No. 22483 of 2020

Devi Saran Yadav ...Petitioner
Versus
Khadi & Vill. Indus. Commission & Ors.
 ...Respondents