# Vibha Tiwari v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 280
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-27
- **Case number:** Writ A No. 5017 of 2023
- **Bench:** Vivek Kumar Birla, Donadi Ramesh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vibha-tiwari-v-state-of-u-p-ors-54571
- **Pages:** 6

## Headnote

A. Service Law - U.P. Recruitment of
Dependents of Government Servant Dying
in Harness Rules, 1974 - Rule 2(c), Rule 5 -
Constitutional
Law
-
Compassionate
Appointment - Petitioner, daughter-in-law of
deceased
employee,
sought
compassionate
appointment - Claim rejected vide order dated
23.11.2022 as daughter-in-law with surviving
husband not included in definition of "family"
under Rule 2(c) - Held, exclusion of daughter-inlaw with disabled spouse (75% locomotor
disability)
from
compassionate
appointment
arbitrary, given purpose of Rules to relieve family
distress - Indian societal norms treat daughter-inlaw as integral family member - Full Bench in U.P.
Power Corporation Vs Urmila Devi emphasized
irrationality of excluding widowed daughter-in-law
- Special circumstances of petitioner's husband's
disability warrant liberal interpretation of Rule 2(c)
- Impugned order quashed, respondent directed
to reconsider petitioner's claim. (Para 8-15)

Writ petition allowed.

List of Cases cited:

## Text

280 INDIAN LAW REPORTS ALLAHABAD SERIES
wherein the Apex Court has categorically
held that though the daily wagers are entitled
for grant of minimum pay scale yet they
would not be entitled to draw any increments.

18. Thus the single bench judgement of
this Court in the case of Gyan Prakash
Srivastava (supra) would have to give way
to the judgment Hon'ble Apex Court in the
case of Puttilal (supra). Accordingly, the
petitioner would not be entitled to draw any
increments on the minimum pay scale which
would be payable to him.

19. As regards the prayer of counting
entire service rendered by petitioner as daily
wager for the purpose of qualifying service
for retirement benefits, though no arguments
have been advanced by both learned counsel
for the petitioner and learned Additional
Chief Standing Counsel on the said prayer yet
what the Court finds is that keeping in view
the promulgation of the Uttar Pradesh
Qualifying
Service
for
Pension
and
Validation Act, 2021 (hereinafter referred to
as the Act, 2021) which defines qualifying
service as the services rendered by an officer
appointed on a temporary or permanent post
in accordance with the provisions of the
service rules prescribed by the Government
for the post and the fact that a full bench of
this Court in a bunch of writ petitions leading
being Writ Petition No. 25955 (SS) of 2017
in re: Ram Das Yadav vs State of U.P. and
others
decided
on
08.11.2021
after
considering the judgement of Hon'ble Apex
Court in the case of Habib Khan vs State of
Uttarakhand passed in Civil Appeal No.
10806 of 2017 decided on 23.08.2017 and
considering Regulations 370 of the U.P. Civil
Service Regulations as well as judgement of
Hon'ble Apex Court in the case of Prem
Singh vs State of U.P. and others, 2019
(10) SCC 516 has held that with
promulgation
of
Act,
2021
defining
qualifying services for pension which Act
has been given retrospective effect from
01.04.1961 and the validity of the Act has
been challenged in a bunch of petitions the
leading being Writ Petition No. 25955 (SS)
of 2017 as such the relief prayed for by the
petitioner may not survive as the same will
depend on the result of the petitioner
challenging the vires of the Act, 2021.
Accordingly, considering the full bench
judgement in the case of Ram Das Yadav
(supra) the petitioner, if so advised, may
challenge the vires of the Act, 2021.

20.

Considering
the
aforesaid
discussion, the writ petition is partly
allowed.
The
order
impugned
dated
19.05.2022, a copy of which is annexure 1 to
the petition, is quashed. The respondents are
directed to pay the minimum of pay scale to
the petitioner as was applicable to regular
employees working on the same post. The
pay scale shall be payable along with arrears
with effect from 3 years prior to filing of Writ
A No. 2023 of 1997 till the date of
regularization of the petitioner i.e. till
25.02.2002.

21. Let the compliance be made within
a period of three months from the date of
production of a certified copy of this order.
----------
(2024) 4 ILRA 280
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.02.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE DONADI RAMESH, J.

Writ A No. 5017 of 2023

Vibha Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
4 All. Vibha Tiwari Vs. State of U.P. & Ors.
281
Counsel for the Petitioner:
Sri Prashant Mishra, Sri Tarun Agrawal

Counsel for the Respondents:
C.S.C

A. Service Law - U.P. Recruitment of
Dependents of Government Servant Dying
in Harness Rules, 1974 - Rule 2(c), Rule 5 -
Constitutional
Law
-
Compassionate
Appointment - Petitioner, daughter-in-law of
deceased
employee,
sought
compassionate
appointment - Claim rejected vide order dated
23.11.2022 as daughter-in-law with surviving
husband not included in definition of "family"
under Rule 2(c) - Held, exclusion of daughter-inlaw with disabled spouse (75% locomotor
disability)
from
compassionate
appointment
arbitrary, given purpose of Rules to relieve family
distress - Indian societal norms treat daughter-inlaw as integral family member - Full Bench in U.P.
Power Corporation Vs Urmila Devi emphasized
irrationality of excluding widowed daughter-in-law
- Special circumstances of petitioner's husband's
disability warrant liberal interpretation of Rule 2(c)
- Impugned order quashed, respondent directed
to reconsider petitioner's claim. (Para 8-15)

Writ petition allowed.

List of Cases cited:

1. U.P. Power Corporation, Urban Electricity
Transmission Division-II, Allahabad Vs Urmila
Devi; 2011 (3) ADJ 432

2. Smt. Sharma Devi Vs St. of U.P.; 2022 (3)
ADJ 646

3. Basic Shiksha Adhikari, Hardoi Vs Madhu
Mishra; [2009 (27) LCD 995]

4. Smt. Urmila Devi Vs U.P. Power Corporation;
2003 (4) AWC 3205

5. Sanyogita Rai Vs St. of U.P.; (2006) 2
UPLBEC 1972

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Donadi Ramesh, J.)

1. Heard Sri Prashant Mishra, learned
counsel for the petitioner and perused the
record.

2. Petitioner is daughter in law of the
deceased employee. She filed the present
petition for the following relief:

i) Issue a writ, order or direction
in the nature of mandamus declaring Rule
2 (c) (iii) of the Uttar Pradesh Recruitment
of Dependents of Government Servant
Dying in Harness Rules, 1974 (as amended
from time to time) as unconstitutional to the
extent it creates a distinction between
widowed daughters-in-law and those whose
spouses are alive but suffering from
incapacity;

ii) Issue a writ, order or direction
in the nature of certiorari quashing the
impugned order dated 23.11.2022 passed
by the respondent no.3 rejecting the claim
of compassionate appointment of the
petitioner.

iii) Issue a writ, order or
direction in the nature of mandamus
directing the respondent no.3 to reconsider
the
claim
of
the
petitioner
for
compassionate appointment.

3. The mother-in-law of the petitioner
Smt. Kaushalya Tiwari died in harness on
18.1.2022. At the time of her death, she
was serving as class IV employee in the
office of respondent no.3. Smt. Kaushalya
Tiwari was survived by her son Abhay
Kumar Tiwari (husband of the petitioner)
and her married daughter Smt. Poonam
Tiwari Pandey who is living a prosperous
and happy married life in her matrimonial
home. The son of Smt. Kaushalya Tiwari
i.e. Abhay Kumar Tiwari, met with a
severe accident on 07.5.2019 in which he
suffered
grave
injuries
resulting
in
locomotor disability up to 75% and after
282 INDIAN LAW REPORTS ALLAHABAD SERIES
thorough medical examination, a disability
certificate was issued to Abhay Kumar
Tiwari was declaring him to have suffered
75% permanent disability and incapable of
earning a livelihood owing to his disability.

4. During the lifetime of Smt.
Kaushalya Tiwari, she has taken care of
her son and the entire family post
accident. It is an admitted fact that at the
time of her death, she was the sole bread
earner of her family and the petitioner
and her husband were also totally
dependent upon her. By virtue of her
sudden demise, there was no other
earning member of the family as the
husband of the petitioner is incapable of
working. Left with no other option, the
petitioner has moved an application to
consider her case for compassionate
appointment under The U.P. Recruitment
of Dependants of Government Servants
Dying
in
Harness
Rules,
1974
(hereinafter referred to as "the Rules").
Considering the said application, the third
respondent
passed
an
order
dated
23.11.2022 rejecting her claim only on
the ground that 'daughter-in-law' was not
included in the definition of 'family'
under the Rules. Questioning the said
order, the present petition has been filed.

5. Based on the above facts, after
arguing for some time, learned counsel
for the petitioner intended to withdraw
the first prayer which reads as follows:

i) Issue a writ, order or
direction in the nature of mandamus
declaring Rule 2 (c) (iii) of the Uttar
Pradesh Recruitment of Dependents of
Government Servant Dying in Harness
Rules, 1974 (as amended from time to
time) as unconstitutional to the extent it
creates a distinction between widowed
daughters-in-law and those whose spouses
are alive but suffering from incapacity;

6. Learned counsel for the petitioner
has mainly relied on the observations made
by the third respondent in the order dated
23.11.2022. In the said order, the third
respondent has considered all the relevant
facts and also the observations of the Full
Bench judgment of this Hon'ble Court in
U.P.
Power
Corporation,
Urban
Electricity
Transmission
Division-II,
Allahabad vs. Urmila Devi 2011 (3) ADJ
432 and also the judgement of Smt.
Sharma Devi vs. State of UP through its
Additional Chief Secretary, Food and
Civil Supply Lko And Ors. 2022 (3) ADJ
646 as respondents have considered in
apprising manner but for the reason that
daughter-in-law was not included in the
definition of 'family' under Rule 2 (c) of the
Rules. To support his contention and to
decide the issue involved in the matter,
Rule 2 (c) has been quoted which is as
follows:

"(c) "family" shall include the
following
relations
of
the
deceased
Government Servant:-

(i) wife or husband

(ii) sons/adopted sons;

(iii)
unmarried
daughters,
unmarried adopted daughters, widowed
daughters and widowed daughter-in-law;

(iv)
unmarried
brothers,
unmarried sisters and widowed mother
dependent on the deceased Government
servant, if the deceased Government
servant was unmarried;

(v) aforementioned relations of
such missing Government servant who has
been declared as "dead" by the Competent
Court:

Provided
that
if
a
person
belonging to any of the abovemebtioned
4 All. Vibha Tiwari Vs. State of U.P. & Ors.
283
relations of the deceased Government
servant is not available or is found to be
physically and mentally unfit and thus
ineligible for employment in Government
service, then only in such situation, the
word "family" shall also include the
grandsons
and
the
unmarried
granddaughters
of
the
deceased
Government servant dependent on him."

7. Learned counsel has submitted that
the definition of family under Rule 2 (c)
includes wife or husband, sons and adopted
sons,
daughters
(including
adopted
daughters) and widowed daughters-in-law,
unmarried brothers, unmarried sisters and
widowed
mother
dependent
on
the
deceased Government servant, if the
deceased
Government
servant
was
unmarried
and
Rule
5
deals
with
recruitment of members of the family of the
deceased. From the above said Rule, one
member of the family who is not already
employed under the Central Government or
State Government or a Corporation owned
or controlled by the Central Government or
State
Government,
on
making
an
application in suitable manner in the
Government Service in relaxation of the
normal recruitment rules, if such person
fulfills the educational qualification.

8. On perusal of both the Rules, it is
clarified that if there are no other earning
members in the family, any member of the
family is entitled to make an application to
be considered under the said Rule but
surprisingly, the definition of "family"
under Rule 2 (c) of the Rules, all the
members
were
included
except
the
daughter-in-law with surviving husband.
The fact of the instant case is that the
husband of the petitioner is surviving with
disability of more than 75%, she could not
be considered as a member of the family
for employment as per the abovesaid Rule.

9. The relevant paragraphs of the Full
Bench judgment of this Hon'ble Court
relied upon by the respondent in Urmila
Devi (supra) are quoted below:

"6. We may mention that, at the
preliminary hearing, our attention was
invited to a Division Bench judgment of this
Court in the case of Basic Shiksha
Adhikari, Hardoi Vs. Madhu Mishra &
Ors., [2009 (27) LCD 995], where the
question for consideration was whether a
widowed
daughter-in-law
can
claim
appointment under the Dying in Harness
Rules?
The
learned
Bench,
after
considering the definition of the word
family, was pleased to hold that the
decisions in Smt. Urmila Devi Vs. U.P.
Power Corporation & Ors., 2003 (4) AWC
3205 & Sanyogita Rai (Smt.) Vs. State of
Uttar Padesh & Ors. (2006) 2 UPLBEC
1972, are not in conformity with the well
settled principles of law and they are,
accordingly, overruled. In other words, the
judgment in Urmila Devi (supra) no longer
subsists. It is, therefore, clear that the
reference
as
such,
would
not
be
maintainable.

7. However, during the pendency
of these proceedings, considering the
peculiar features of the case, the appellant
themselves, on queries raised by the Court,
have taken a decision to give appointment
to the respondent on producing the
documents as set out in the affidavit filed
on behalf of the appellants. They have also
made it clear that the age bar would not
come in the way while giving appointment
to the respondent. In the light of that, in our
opinion, really, nothing further would
survive in this reference. However, liberty
284 INDIAN LAW REPORTS ALLAHABAD SERIES
to the respondent, in the event appointment
is not given, to apply.

8. 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
dependant
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-inlaw 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 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.

Learned
counsel
further
contended that in the identical situation, the
Full Bench has considered and held that the
widowed daughter in the house of her
parents is entitle for consideration for
compassionate appointment. However, a
widowed daughter-in-law in the house
where she is married, is not entitle 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.

11. Learned counsel for the petitioner
has stated that in the present case also the
daughter-in-law with surviving husband
having more than 75 % disability has not
been
considered
for
compassionate
appointment only on the ground that she is
not included in the definition of 'family'.

12. Though counsel for the petitioner
has not pressed prayer no.1 and withdrawn
the same but considering the facts and
circumstances of the present case as noted
and admitted by the respondent in the
impugned order, this Court also considered
the observations made by the Hon'ble Full
Bench in the above noted judgment.

13. As per the custom of Indian
Society, daughter-in-law is also supposed
to be treated as a daughter as she is also an
integral part of the family. The main
purpose of extending the benefit of
compassionate
appointment
to
the
dependents of a deceased government
4 All. Mukesh Kumar & Anr. Vs. State of U.P. & Ors.
285
servant is to relieve the family from distress
and destitution on account of death of sole
bread earner of the family. Even in the
instant case, an exceptional situation has
been created as though the husband of the
petitioner is alive but he is having more
than 75% disability and he is unable to
earn/work,
which
requires
a
liberal
construction of the meaning under Section
2(c) of the Rules, 1974.

14.

Considering
the
special
circumstances of the case and disability of the
husband of the petitioner, the writ petition is
allowed.
The
impugned
order
dated
23.11.2022 passed by respondent no.3 i.e.
Joint Commissioner (Karya Palak), Rajya
Kar, Sambhag-A, Prayagraj is set aside.

15. The respondent no.3 is directed to
reconsider the case of the petitioner for
compassionate appointment as per Rule 5 of
the Rules and pass appropriate order within a
period of three months from the date of
production of certified copy of this order.
----------
(2024) 4 ILRA 285
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.04.2024

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Writ A No. 5113 of 2023

Mukesh Kumar & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Harindra Prasad, Sri Ramesh Kumar
Tiwari

Counsel for the Respondents:
C.S.C., Sri Siddharth Singhal, Sri Ramesh
Kumar
Tiwari,
Sri
Ashok
Khare
(Sr.
Advocate), Sri G.K. Singh (Sr. Advocate)

A. Administrative Law - U.P. Subordinate
Service Selection Commission - Revised
Answer Key - Judicial Review - Petitioner
challenged
revised
answer
key
dated
07.09.2022 for question no. 10 of booklet series
'B' in Revenue Lekhpal main examination -
Alleged correct answer as 'D' instead of 'B'
based on publication - Held, courts exercise
restraint in interfering with expert committee's
opinion unless mistake is patently obvious
without requiring inferential reasoning - Expert
committee revised answer key to 'B' after
objections, supported by ambiguity in term
"Vindhyachal" without "Parvat" - Petitioner
failed to demonstrate glaring error in revised
answer key - Ran Vijay Singh Vs St. of U.P.,
U.P. Public Service Commission Vs Rahul Singh,
and Arsiya Bano Vs St. of U.P. relied upon - No
interference warranted under Article 226. (Para
18-23)

Writ petition dismissed.

List of Cases cited:

1. Ran Vijay Singh Vs St. of U.P.; (2018) 2 SCC
357

2. U.P. Public Service Commission Vs Rahul
Singh; (2018) 7 SCC 254

3. Arsiya Bano Vs St. of U.P.; (2022) 5 ALJ 287

4. Jitendra Singh Vs U.O.I.; Writ C No. 53877 of
2017

(Delivered by Hon'ble Prakash Padia, J.)

1. Heard learned counsel for the
petitioners, learned Standing Counsel for
the
respondent
no.1,
Shri
Siddharth
Singhal, learned counsel for the respondent
no.2 as well as Shri Ashok Khare and Shri
G.K. Singh, learned Senior Advocates
assisted by Shri Ramesh Kumar Tiwari