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Allahabad High Court Reiterates That Married Daughters Are Eligible For Compassionate Appointment; No Amendment In Statute Book Required

Akshita Saxena
14 Jan 2021 1:46 PM GMT
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The Allahabad High Court has made it clear that marital status of a daughter alone cannot be the ground for rejecting her application for compassionate appointment in terms of the UP Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974.

A Single Bench of Justice JJ Munir pointed out that a Division bench of the High Court in Smt. Vimla Srivastava v. State of UP & Ors., Writ C No. 60881/2015, has already held that exclusion of married daughters from the ambit of expression, 'family' in Rule 2(c) of the 1974 Rules is unconstitutional. It also struck down the word 'unmarried' in Rule 2(c) (iii) of the said Rules, as being violative of Articles 14 and 15 of the Constitution.

The Judge held that this decision operates in rem and Rule 2(c)(iii) is for all purposes rendered completely ineffectual.

"The declaration is wholesome and unqualified, followed by a formal order striking down the word 'unmarried' occurring in Rule 2(c) (iii) of the Rules. The principle is well settled that once a statute, particularly, a post Constitution Statute, governed by Clause (2) of Article 13, is declared unconstitutional for the violation of a fundamental right, it is rendered void. It is for all purposes rendered completely ineffectual, even if it lingers on, on the Statute Book as a dead letter," the Single Bench observed.

Marital Status Of A Daughter Alone Not A Ground For Rejecting Claim For Compassionate Appointment: Reiterates Allahabad HC

Background

The Court in this case was faced with the question whether the judgment in Smt. Vimla Srivastava (supra), striking down the word 'unmarried' in Rule 2(c) (iii) of the Rules, entitles a married daughter to a consideration of her claim for compassionate appointment without an amendment to the Rules made by the State Government, expressly including 'married daughter' in the expression 'family', defined under Rule 2(c)?

The issue arose in a petition filed by one Manjul Srivastava, daughter of a deceased Government employee, whose claim for compassionate appointment under the UP Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 was rejected by the District Basic Education Officer, Prayagraj, on the sole ground that a married daughter of a deceased Government servant is not included in the definition of the family of the deceased under the Rules

Arguments

The Petitioner heavily relied on Smt. Vimla Srivastava (supra) and contended that once the word 'unmarried' occurring in Rule 2(c) (iii) of the Rules has been struck down as unconstitutional, it no longer survives on the Statute Book. Accordingly, the Rules, as they stand, do not require any further amendment to consider a married daughter's right to compassionate appointment

The Counsels appearing for the Government however submitted that— notwithstanding the declaration made by the High Court that Section 2(c) (iii) is unconstitutional and void to the extent that it carries the word 'unmarried', qualifying the word 'daughter', an unmarried daughter cannot be considered for compassionate appointment, unless the State appropriately amends the provisions of Rule 2(c) in accordance with the judgment of this Court.

Findings

At the outset, the Court rejected the Respondent's contention that the Rules need to be appropriately amended before the High Court's order can be given effect.

Referring to the Supreme Court's decision in Saghir Ahmad v. State of U.P. & Others, AIR 1954 SC 728, and plenty of other precedents, the Single Judge observed,

"The severance of the offending part has made the remainder of Section 2(c) (iii) intra vires, purging it of the vice of discrimination on the ground of sex alone. What has remained back is a workable provision and is to be understood in the manner that a daughter, irrespective of her marital status, is to be regarded as a member of the deceased government servant's family, in the same manner as a son, whether married or unmarried. This Court, therefore, holds that in the definition of the deceased's family, the word 'daughter' has to be read unqualified by the marital status of the daughter and it requires no further amendment to the Rules by the Government to make the right of a daughter of the deceased government servant effective under the Rules."

Court's declaration operates in rem

The Single Judge was of the view that if the submissions made by the Respondents were to deserve any serious consideration, that would amount to accepting an almost insurmountable inhibition on the jurisdiction of this Court to declare an unconstitutional statute or statutory provision void for contravening a Part III right.

"A judgment of the Court declaring a statute void for the contravention of a fundamental right works to grant a declaration proprio vigore, rendering the provision invalidated; effaced for all intents and purposes. It does not certainly require a legislative compliance to give it effect," the Judge asserted.

He added that there could be some sense to the Respondents' submission if after ignoring the word 'unmarried' occurring in Rule 2 (c) (iii) of the Rules, the provision had become workable.

"But, that it has not become. The word 'unmarried' has been struck down, applying the reputed doctrine of severability, that has always had approval of their Lordships of the Supreme Court.

Thus, in the definition of 'family' occurring under Section 2(c) (iii), the word 'daughter' is to be read without the pre-fixed qualification 'unmarried'. The effect of the declaration, therefore, is that the Rule is to be read as one including 'daughter' in Rule 2(c) (iii), whether married or unmarried," the Judge concluded.

In view of these observations, the impugned order of the District Basic Education Officer was quashed with a direction to consider the Petitioner's claim for compassionate appointment, without reference to her marital status, within a period of two months.

Similar orders of other HCs:

It is pertinent to note at this juncture that the Rajasthan High Court in 2019 rejected a challenge against exclusion of married daughters from availing the benefit of compassionate appointment under Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules,1996.

Rajasthan HC Rejects Plea Challenging Exclusion Of 'Married Daughters' From Availing Benefit Of Compassionate Appointment Scheme

A Division bench led by then Chief Justice S. Ravindra Bhat compassionate appointment under the scheme cannot be equated with the right to receive family pension.

"Married daughter cannot be said to be dependent on the deceased employee. The definition of dependant is with a view to give appointment to spouse, son, unmarried or widowed daughter, widow, etc. who are real dependants of the deceased. Such matters are within the purview of the policy of the State Government. It is for the State Government to define such matters and it is not for the Court to widen the scope of the Rules as compassionate appointment cannot be claimed as a matter of right," the Court had observed.

Case Title: Manjul Srivastava v. State of UP & Ors.

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