SAURABH SHYAM SHAMSHERY,J. - (1.) The application for compassionate appointment of the writ petitioner-respondent under the dying in Harness Rules due to the death of her father, was rejected vide order dated 05.5.2014, on the ground that the divorced married daughter was not included in the definition of 'family' as described under Section 2 (c) of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 (hereinafter referred to as the "Rules, 1974").
(2.) Aggrieved by the aforesaid order, the writ petitioner-respondent has approached the learned Single Judge. The learned Single Judge vide impugned order dated 18.3.2016 allowed the writ petition relying upon a judgment passed by a Division Bench of this Court in Writ-C No.60881 of 2015, (Smt. Vimla Srivastava Vs. State of U.P. and Anr.) and connected matters wherein the Division Bench had held that the 'exclusion of married daughter' from the ambit of the expression of 'family' in Rule 2 (c) of the Rules, 1974 was illegal and unconstitutional being violative of Articles 14 and 15 of the Constitution and accordingly the Division Bench struck down the word 'unmarried' in Rule 2 (c) (iii) of the Rules 1974.
(3.) The relevant portion of the judgment is reproduced hereinafter: "Specifically in the context of compassionate appointments various High Courts have taken the view that a woman who is married cannot be denied entry into service on compassionate appointment merely on the ground of marriage. This view was taken by a learned Single Judge of the Karnataka High Court in Manjula vs. State of Karnataka,2005 (104) FLR 271. The same view has been adopted by a Division Bench of the Bombay High Court in Smt. Ranjana Murlidhar Anerao vs. The State of Maharashtra, Writ Petition No.5592 of 2009, decided on 13 August 2014, where it was held that the exclusion of a married daughter for the grant of a retail kerosene license on the death of the license holder was not justifiable. The Division Bench of the Bombay High Court held as follows: "This exclusion of a married daughter does not appear to be based on any logic or other justifiable criteria. Marriage of a daughter who is otherwise a legal representative of a license holder cannot be held to her disadvantage in the matter of seeking transfer of license in her name on the death of the license holder. Under Article 19(1)(g) of the Constitution of India the right of a citizen to carry on any trade or business is preserved. Under Article 19(6) reasonable restrictions with regard to professional or technical qualifications necessary for carrying on any trade or business could be imposed. Similarly, gender discrimination is prohibited by Article 15 of the Constitution. The exclusion of a married daughter from the purview of expression "family" in the Licensing Order of 1979 is not only violative of Article 15 but the same also infringes the right guaranteed by Article 19(1)(g) of the Constitution." The same view has been adopted by a learned Single Judge of the Madras High Court in S Kavitha vs. The District Collector, Writ Petition No.16153 of 2015, decided on 9 June 2015. A learned Single Judge of the Kolkata High Court in Purnima Das vs. The State of West Bengal, Writ Petition No.33967 (W) of 2013 decided on 19 March 2014 has held that while appointment on compassionate ground cannot be claimed as a matter of right, at the same time, it was not open to the State to adopt a discriminatory policy by excluding a married daughter from the ambit of compassionate appointment. We are in respectful agreement with the view which has been expressed on the subject by diverse judgments of the High Courts to which we have made reference above. During the course of submissions, our attention was also drawn to the judgment rendered by a learned Single Judge of this Court in Mudita vs. State of U.P., Writ Petition No.49766 of 2015, decided on 10 September 2015. The learned Single Judge while proceeding to deal with an identical issue of the right of a married daughter to be considered under the Dying-in-Harness Rules observed that a married daughter is a part of the family of her husband and could not therefore be expected to continue to provide for the family of the deceased government servant. The judgment proceeds on the premise that marriage severs all relationships that the daughter may have had with her parents. In any case it shuts out the consideration of the claim of the married daughter without any enquiry on the issue of dependency. In the view that we have taken we are unable to accept or affirm the reasoning of the learned Single Judge and are constrained to hold that Mudita does not lay down the correct position of the law. In conclusion, we hold that the exclusion of married daughters from the ambit of the expression "family" in Rule 2 (c) of the Dying-in-Harness Rules is illegal and unconstitutional, being violative of Articles 14 and 15 of the Constitution. We, accordingly, strike down the word 'unmarried' in Rule 2 (c) (iii) of the Dying-in-Harness Rules. In consequence, we direct that the claim of the petitioners for compassionate appointment shall be reconsidered. We clarify that the competent authority would be at liberty to consider the claim for compassionate appointment on the basis of all the relevant facts and circumstances and the petitioners shall not be excluded from consideration only on the ground of their marital status." ;