In a significant Judgment, the Allahabad High Court has held that a married daughter is entitled to be considered for compassionate appointment, even though necessary amendment has not been done in rules after the Judgment to Court striking off ineligibility of married daughters.
Background
The petitioner’s mother was inducted as an Assistant Teacher in the services of the Basic Education Board and appointed at the Primary School. She was a permanent employee and the sole breadwinner of the family, comprising her husband, aged about 63 years and three married daughters aged about 32 years, 30 years and 28 years. The petitioner’s mother died in harness due to heart attack.
The Petitioner pleaded that due to the death of her mother her family has become financially crippled. They were totally dependent on the deceased because the petitioner’s father and the deceased’s husband is an unemployed man.
She, therefore, applied for the compassionate appointment on the post of an Assistant Teacher in the Primary School, where her mother served. The petitioner asserted that she holds the necessary educational and other qualifications to be appointed as an Assistant Teacher.
However, the petitioner’s claim for compassionate appointment was ejected by an order dated 25.06.2020 passed 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, as amended by the 9th Amendment Rules, 2011, carried in the Government Order dated 22.12.2011, issued by the Government of U.P.. Feeling aggrieved she filed a writ petition before Allahabad High Court.
Issue before the Court
Whether the judgment of this Court in Smt. Vimla Srivastava vs. State of U.P. and another [2016 (1) ADJ 21], 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)?
Counsel for the Petitioner submitted that the order denying compassionate appointment runs contrary to the judgment of Allahabad High Court itself in the case Smt. Vimla Srivastava vs. State of U.P. and another [2016 (1) ADJ 21], where it was held that exclusion of married daughters from the definition of ‘family’ carried in Rule 2(c) of the Rules was unconstitutional and violative of Articles 14 and 15 of the Constitution.
Further submission was that once the Court has struck down the word “married daughter” it
no longer survives in the statute book and the rules, as they stand, do not require any further amendment to consider a married daughter’s right to compassionate appointment.
The Government counsel opposed the writ petition and submitted that notwithstanding the declaration made by the 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.
Decision of Court
Hon’ble Justice JJ Munir of Allahabad High Court observed:
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. This issue has been the subject matter of pronouncement by high authority in the Constitution Bench decisions of the Supreme Court in Saghir Ahmad v. State of U.P. & Others and any other Judgments.
The broad principle deducible is that a post Constitution statute declared void for contravening a Part III right is rendered completely unenforceable. These subtle aspects, if any, about the difference in the statute (a post Constitution law) being declared void on account of violation of a fundamental right on one hand and legislative competence on the other, need not trouble this Court, for they do not arise on the facts here.
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.
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 legislative compliance to give it effect.
In the result the Allahabad High Court allowed the Writ Petition and quashed the order by means of which the claim of compassionate appointment was rejected. A Mandamus has been issued to consider the claim of Petitioner afresh in accordance with law.
Case Deatils:
Title: Manjul Srivastava vs State of U.P. and Others
Case No. WRIT – A No. – 10928 of 2020
