High Court
Case Details
Neutral Citation No. - 2023:AHC:193607 Court No. - 35 Case :- WRIT - A No. - 13598 of 2023
Legal Reasoning
Petitioner :- Smt. Monika Saxena Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Tanisha Jahangir Monir,Himanshu Kumar Counsel for Respondent :- CSC Hon'ble Vikas Budhwar,J. Heard Miss. Tanisha Jahangir Monir, learned counsel for the petitioner and Sri Shailendra Singh, learned Standing Counsel, who appears for respondents 1, 2 and 3.
Decision
This Court while entertaining the writ petition on 18.8.2023 had granted time to the respondent to file a response while issuing notice to the fourth respondent. There is an office reported dated 6.9.2023 that delivery upon the fourth respondent has been confirmed. Till the dictation of the order nobody has present on behalf of the fourth respondent. On a pointed query being raised to the learned Standing Counsel as to whether they propose to file any response on behalf of the respondents 1 to 3. Sri Shailendra Singh, learned Standing Counsel submits that he is armed with the instructions which would suffice for disposal of the writ petition. Accordingly, with the consent of the parties, the writ petition is being disposed off at the fresh stage. The case of the writ petitioner is that her father namely Sri Anil Kumar Saxena (Since deceased) who was working as a Class-IV employee in fourth respondent institution namely Government Inter College Meerut, District Meerut died in harness on 18.1.2019. The writ petitioner happens to be a married woman who solemnized marriage with one Sri Manoj Mathur on 19.11.2018. She staked her claim for being accorded compassionate appointment while completing formalities as provided therein submitting affidavits on 15.5.2023. However her candidature has been sought to be negated by virtue of an order dated 19.7.2023 passed by the second respondent, Joint Director of Education, First Division Meerut, District Meerut on the premise that on the date when her father expired and she had staked claim for being accorded compassionate appointment, she was a married lady and further she has been accorded terminal benefits of her father thus the writ petitioner is not entitled to be considered for compassionate appointment. Questioning the order dated 19.7.2023 passed by the second respondent, Joint Director of Education, First Division Meerut, District Meerut the writ petitioner has preferred the present writ petition with a prayer for a direction to the respondents to consider the claim of the writ petitioner for according to compassionate appointment. Learned counsel for the writ petitioner while assailing the orders dated 19.7.2023 negating the claim of the writ petitioner for compassionate appointment has sought to argue that earlier the provisions contained under the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 did not provide for according of compassionate appointment to her dependent being a married daughter however post decision in the case of Smt. Vimla Srivastava vs. State of U.P. reported in 2016 (1) ADJ 21 the said ground was not available to the respondents as married daughter also came within the definition of the dependent and subsequently a Special Leave Petition also stood dismissed and thereafter on 12.11.2021 amendment has been made in the Rule B, Rule, Rule 2(C) whereby a married daughter has also been included. Learned counsel for the writ petitioner submits that once amendment has been made though subsequently and the Rules have been read down by Division Bench of this Court affirmed by the Honble Apex Court that the writ petitioner cannot be negated of the said benefits. He further submits that it is a matter of common knowledge also the deceased who happens to be in public employment post it becomes entitled to the post terminal benefits, thus the said ground is also not available to the respondents. Sri Shailendra Singh, learned Standing Counsel on the other hand submits that the writ petitioner might be right in view of the judgement in the case of Smt. Vimla Srivastava(Supra) and the amendment so made on 12.11.2021 however the matter needs a fresh look by the second respondent, thus the order in question be set aside, the matter be remitted back to be decided afresh. I have heard the learned counsel for the parties and perused the record. Undisputedly, in the present case father of the writ petitioner expired and it is not the case of the respondents that he was on any temporary post further consequent to his death the writ petitioner staked her claim for being accorded compassionate appointment which has been negated on two grounds as noticed above. The issue which is being raised as rightly pointed out by Sri Shailendra Singh, learned Standing Counsel needs redermination at the stage of the second respondent thus this Court in the facts and circumstances of the case is not delving with the merits of the matter leaving it open to the second respondent to decide the matter afresh. Accordingly, the writ petition is being decided on the following terms:- (a)order dated 19.7.2023 passed by the second respondent is set aside (b) the writ petitioner shall file a comprehensive representation along with the self-attested copy of the writ petition before the second respondent in the fourth week of October, 2023 (c) on the receipt of the same the second respondent shall put to notice to the fourth respondent (d) a date of hearing be fixed. (e) hearing be conducted in the second week of November, 2023, (f) order be passed in the last week of November, 2023. The second respondent shall decide the issue bearing in mind the following fundamental and core issues:- (a) the issue with regard to the entitlement of the writ petitioner for compassionate appointment in the wake of the judgement in the case of Smt. Vimla Srivastava(Supra) and the amendments made on 12.11.2021 (b) the issue with regard to the judgement in the case of Special Appeal No.126 of 2023, State of U.P. vs. Himanshu Yadav decided on 7.7.2023, (c) the suitability, eligibility and the competing claims of the writ petitioner as well as the claims of the other deserving candidates. Needless to point out that the writ petition has been decided without seeking any response from the respondents. Thus, passing of this order may not be construed to an expression that this Court has gone into the merits of the case. With the aforesaid observation, the writ petition is disposed off. Instruction filed today is taken on record and marked as Appendix- A. Order Date :- 9.10.2023 piyush Digitally signed by :- PIYUSH KUMAR High Court of Judicature at Allahabad