The Allahabad High Court while quashing the order passed by the Secretary, Uttar Pradesh Cooperative Institutional Services Board, Lucknow thereby rejecting the claim of the petitioner for appointment under Dying in Harness Rules, observed that excluding daughters for compassionate appointment purely on the ground of marriage would constitute impermissible discrimination and be violative of Articles 14 and 15.
A Single Bench of Justice Alok Mathur passed this order while hearing a petition filed by Madhavi Mishra.
By means of the petition the petitioner has assailed the order dated 29.6.2021 as well as the order dated 1.7.2022 passed by opposite party No 2 i.e Secretary, Uttar Pradesh Cooperative Institutional Services Board, Lucknow thereby rejecting the claim of the petitioner for appointment under Dying in Harness Rules.
It is submitted on behalf of the petitioner that her father Sunil Kumar Mishra, who was working on Class IV Post in District Cooperative Bank, died during service on 7.1.2021 leaving behind the petitioner and his widow.
It is stated that the mother of the petitioner is also a cancer patient and the petitioner, who is a married lady, is living with her mother and looking after her.
It is stated that due to sudden demise of father of the petitioner the family has fallen into financial destitution and, hence, according to Regulation 104 (V) of Uttar Pradesh Cooperative Society Employees’ Service Regulation 1975 which provides for compassionate appointment, the petitioner made an application on 1st March, 2021 for compassionate appointment.
It has further been submitted that the petitioner had annexed all the relevant documents for due consideration for such appointment. The case of the petitioner was considered and forwarded to the Bank Managing Committee and subsequently has been rejected by means of the impugned order solely on the ground that the petitioner is a married daughter of the deceased employee and is not included in the definition of the family as per note appended to Rule 104 of the Regulations of 1975.
It is stated that the petitioner being aggrieved of the aforesaid order has approached this Court challenging the impugned order whereby her candidature has been rejected and has further assailed the validity of Rule 104 (v) of the the Regulations of 1975 in as much as married daughter would be included in the definition of daughter and such a discrimination on the face of it is illegal and arbitrary.
It has been submitted that according to the note appended to Regulation 104 of the Regulations of 1975 ‘the family, for the purposes of this Regulation, shall include wife/husband, sons and unmarried or widowed daughters of the deceased employee.’
It is stated that just because of the fact that unmarried and widow daughters only are included in the said definition and the petitioner being married daughter has been held to be excluded from the definition of family.
Rakesh Kumar Chaudhary appearing for the respondents i.e Cooperative Institutional Services Board has supported the impugned order and submitted that there is no infirmity in the same in as much as the service Regulations of 1975 do not included a married daughter in the definition of the family and, hence, there is no infirmity in the impugned order by which the claim of the petitioner for compassionate appointment has been rejected.
He has further submitted that in the counter affidavit filed by respondent No 2 it has been stated that UP Cooperative Institutional Services Board had already proposed an amendment to the definition of the family in the Regulation 1975 to the effect that married daughter be also included in the definition of the family.
He has also submitted that had the amendment been allowed and incorporated in the Service Regulations then the claim of the petitioner could have been accepted but prior to its approval and incorporation in the said Regulations there is no infirmity in the rejection of the claim of the petitioner.
“Considering the aforesaid judgment the Court is of the considered opinion that the said judgment passed in the case of Vimla Srivastava (Supra) squarely applies to the facts of the case. The definition of family occurring in the Dying in Harness Rules, 1974 is pari materia with Note appended to Regulation 104 of the Regulations of 1975 and the definition of family included the daughter but excluded married daughter.
The Court in the aforesaid Full Bench has not accepted the stand of the State which proceeds on a paternalistic notion of the position of a woman in our society and particularly of the position of a daughter after marriage. The assumption that after marriage, a daughter cannot be said to be a member of the family of her father or that she ceases to be dependent on her father irrespective of social circumstances cannot be countenanced. The test in matters of compassionate appointment is a test of dependency within defined relationships. There are situations where a son of the deceased government servant may not be in need of compassionate appointment because the economic and financial position of the family of the deceased are not such as to require the grant of compassionate appointment on a preferential basis. But the dependency or a lack of dependency is a matter which is not determined a priori on the basis of whether or not the son is married. Similarly, whether or not a daughter of a deceased should be granted compassionate appointment has to be defined with reference to whether, on a consideration of all relevant facts and circumstances, she was dependent on the deceased government servant. Excluding daughters purely on the ground of marriage would constitute an impermissible discrimination and be violative of Articles 14 and 15 of the Constitution.
Accordingly, it is held that exclusion of married daughter from the ambit of family in the Note appended in sub clause (V) in Regulation 104 of the Regulations of 1975 is illegal, unconstitutional and violative of Articles 14 and 16 of the Constitution of India. Accordingly, the word ‘unmarried’ in the said Note is struck down”, the Court observed while allowing the petition.
“The orders dated 29.6.2021 and 1.7.2022 passed by opposite party No 2 are quashed.
A direction is issued to the respondents to consider the claim of the petitioner for compassionate appointment again in light of the decision of the Full Bench in the case of Vimla Srivastava (supra) as well as the directions issued herein above and the case of the petitioner would not be rejected merely on the ground that she is a married daughter”, the Court ordered.