Divorced Daughter Not Entitled To Compassionate Appointment Unless Divorce & Dependency On Father Is Proven: Allahabad High Court

“Likewise, if on the date of demise of the employee in harness, it can be shown that a married daughter is dependent upon him, or his widow and minor family members could be taken care of by the married daughter, if granted compassionate appointment, it may be a case for considering the claim and judging the validity of the prohibitive rule,” held Justice J.J. Munir.

Case Background

Petitioner's father was a Centrifugal Mechanic in the Purvanchal Vidyut Vitran Nigam Limited and was last posted under the Executive Engineer, Electricity Distribution Phase-II, Malviya Road, Basti. Petitioner got divorced on 01.01.2008 through a Talaqnama, in accordance to Shariat law, applicable to the parties.

Petitioner is said to have moved back to her father's house at Village Tilauli, Post Sohnaag, District Deoria after her divorce and was living there since January, 2008. Petitioner claimed that she was the only legal heir of her father and accordingly, staked claim to compassionate appointment post his death. She also submitted representation for her father's retiral dues. Respondents directed her to produce relevant documents to ascertain her claim. Petitioner moved District Judge, Deoria for the grant of a succession certificate under the Indian Succession Act, 1925 and was granted the same.

As per petitioner, the Executive Engineer, Electricity Distribution Division Phase-I, District Basti had sought legal opinion from Corporation's counsel in the matter and was informed that the documents of the petitioner were in order and that she was entitled to all dues on account of her father's service.

Petitioner contended that to delay processing her claim for compassionate appointment, the Executive Engineer, sought information once again by letter dated 21.03.2018. She was asked whether she had claimed compassionate appointment within the required time and if the Talaqnama produced has been authenticated by a recognized authority. Petitioner further stated that she had the liability of three unemployed sons on her shoulders and that there was no other source of income for her family to survive on.

Petitioner submitted that she was entitled to receive post retiral dues on account of her father's services. She stated that she was also entitled to a compassionate appointment on the grounds that 'married daughters' were also entitled to compassionate appointment under Rule 2(c)(iii) of the Uttar Pradesh Recruitment of Depeneants of Government Servants Dying in Harness Rules, 1974(Rules of 1974). Further, she submitted that though she was paid dues and pension in the year 2019-20, it stopped without any reason. In the interest of resuming the payment and seeking compassionate appointment, petitioner preferred a writ petition before the Allahabad High Court.

Petitioner relied on Smt. Vimla Srivastava v. State of U.P. and Anr., where the Allahabad High Court had struck down Rule 2(c)(iii) of the Rules of 1974 to the extent that it excluded married daughters from the definition of family. Counsel for petitioner submitted that once the word 'unmarried' had been struck down in Rule 2(c)(iii), the stand of the respondents was not tenable.

Per contra, counsel for respondents contended that the Rules of 1974 were not applicable to the Corporation as they were governed by their own rules, framed by the Board of Directors. It was submitted that even the amended provisions of Rule 2 of the Uttar Pradesh State Electricity Board Recruitment of Dependants of Board's Servants Dying in Harness Rules, 1975(Rules of 1975), did not include married daughters as members of the family.

It was further submitted that the petitioner was not dependent on her father at the time of his demise. Counsel for respondents argued that the divorce of petitioner was not an established fact as she had not produced a decree of divorce from a court of competent jurisdiction. It was their submission that petitioner was now 50 years old and that she could earn herself, thereby, precluding her from being entitled to a family pension.

High Court Verdict

At the outset, the Court noted that the petitioner had approached the court on a previous occasion by way of a writ petition, which was disposed of directing the Executive Engineer, Purvanchal Video Vitaran Nigam Ltd., Electricity Distribution Phase-III, District Basti to decide the claim of the petitioner with regard to grant of pension, retiral dues and compassionate appointment.

The Court observed that the respondents had only paid the post retiral dues to the petitioner and had not considered the case of her family pension and compassionate appointment at all. Having discovered that the Executive Engineer had directly disobeyed an order of mandamus by the court, an order for admonishment was passed against him.

The Court held that respondents were not governed by the Rules of 1974, but by their own Rules of 1975.

“It is no doubt true that in Rule 2(c) (iii) of the Rules of 1974, the word 'unmarried' qualifying the word 'daughter has been struck down as unconstitutional by the court in Smt. Vimal Srivastava. But that by itself would not entitle the petitioner to a striking down of Rule 2(c) (3) of the Rules of 1975, which apply to the respondents' establishment.”

The Court held that even though the ratio in Smt. Vimala Srivastava would be applicable in striking down Rule 2(c)(3) of the Rules of 1975, the vires of same not being under challenge in the present writ, would make that contention untenable.

The Court relied on the law laid down in Union of India and Ors. v. Manjurani Routray and Ors., where the Apex Court held that

“It is a trite law that for striking down the provisions of law or for declaring any rules as ultra vires, specific pleading to challenge the rules and asking of such relief ought to be made, that is conspicuously missing in the present case.”

Justice Munir held that it could go into the question of examining whether it could read down Rule 2 (c)(3) of the Rules of 1975 due to its striking similarities to the “unconstitutional” provisions to Rule 2(c) (iii) of the Rules of 1974. However, the same would not be necessary as the facts of the present circumstance prevented such a question from arising in the first place.

The Court held that petitioner had not established how she was dependent on her father at the time of his demise. It was observed that this was not a case of discrimination on the grounds of sex alone but was dependent on the circumstances of the case at hand. Further, it was held that petitioner had not substantiated her divorce by providing authentic documents in support of the same.

The Court obserevd that petitioner had chosen to describe herself as the wife of the husband whom she had supposedly divorced, instead of calling herself daughter of her late father, in her affidavit. It was held that the same being a signed and sworn document could not be set aside lightly.

Further, the Court held that if it was petitioner's case that the deceased had left behind several family members that were dependent on her, then the same could be considered. However, petitioner did not press the same except for a mere mention where it was stated that she bore the liability of three unemployed sons. The Court stated that in the absence of any clarifications as to whether these were the sons of the petitioner or the deceased, or their ages, petitioner could not take stake claim to a compassionate appointment on this basis.

The Court held that petitioner could not establish a provision under which she would be entitled to a family pension and in such a circumstance, would therefore, not be entitled to it.

Accordingly, the writ petition was dismissed.

Case Title: Akhtari Khatoon v. State of U.P. and Ors. [WRIT - A No. - 13833 of 2023]