HIGH COURT OF JUDICATURE AT ALLAHABAD
CONTEMPT APPLICATION (CIVIL) No. - 7532 of 2024 Court No. - 9
HON'BLE ROHIT RANJAN AGARWAL, J.
1. Mr. Sunil Dutta, at present District Inspector of Schools, Unnao, then District Basic Education Officer, Mathura is present in the Court who is identified by Sri A.K. Singh Parihar, counsel for opposite party.
2. An affidavit along with exemption application has been filed today, which is taken on record.
3. The writ Court on 09.01.2024 while disposing of Writ-A No. 17875 of 2023 passed the following order:-
"1. Heard Sri Astitva Srivastava, learned counsel for petitioner and Sri Udit Chandra, Advocate for Respondent-4.
2. It is a case arising out of rejection of application of petitioner seeking compassionate appointment. Application was rejected mainly on ground that petitioner being a married daughter would not fall within the definition of ?family? of Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974.
3. Learned counsel for petitioner has placed reliance on a judgment passed by a Coordinate Bench of this Court in Manjul Srivastava (Writ-A No. 10928 of 2020), decided on 15.12.2020 wherein it has been specifically held that a married daughter would also fall within the definition of ?family? and it would be applicable retrospectively. Relevant paragraphs no. 20 and 21 of the judgment are reproduced hereinafter:
Versus
Counsel for Applicant(s) : Astitva Srivastava, Pankaj Kumar Srivastava, Sasmita Srivastava
Counsel for Opposite Party(s) :
Smt Sapna
.....Applicant(s)
Sunil Dutt
.....Opposite
Party(s)
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"18. The Rules are framed under the proviso to Article 309 of the Constitution and confer on the family members of a Government servant, who has died in harness, a right to be considered for compassionate appointment. There is no cavil about the issue that the Rules, including Rule 2(c) (iii) is law within the meaning of Article 13(2) of the Constitution. The judgment of this Court in Smt. Vimla Srivastava (supra), makes an unqualified declaration "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" to borrow the words of their Lordships of the Division Bench. This declaration has not been disturbed by the Supreme Court in Petition(s) for Special Leave to Appeal (C) No(s). 22646/2016 (carried from the decision in Smt. Neha Srivastava (supra)), where Leave to Appeal has been denied vide order dated 23.07.2019. 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. 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, AIR 1954 SC 728, Deep Chand & Others v. State of U.P. & Others, AIR 1959 SC 648, Mahendra Lal Jaini v. State of U.P. & Others, AIR 1963 SC 1019 and The State of Gujarat & Another v. Shri Ambica Mills Ltd., Ahmedabad & Another, (1974) 4 SCC 656. It has also engaged attention of the Full Bench of Delhi High Court in Sh. P.L. Mehra v. Sh. D.R. Khanna, AIR 1970 DEL 1. 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.
19. If Mr. Upadhyay's submissions were to be regarded as one's advanced CAPL No. 7532 of 2024
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to bring home the distinction between the effect of a statute declared void for the violation of a fundamental right on one hand and legislative competence on the other, this Court has found it not to arise on facts because the petitioner here is also a citizen of India, whose fundamental right against discrimination on the ground of sex alone is equally infringed as that of the petitioners in Smt. Vimla Srivastava and Neha Srivastava. To all intents and purposes, Rule 2(c) (iii) of the Rules has been declared void in Smt. Vimla Srivastava and followed in Neha Srivastava. That declaration operates in rem. 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.
20. The submission of Mr. Upadhyay, if it were to deserve any serious consideration, 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. There could be some sense to that 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. That doctrine has been accepted in A.K. Gopalan vs. State of Madras, AIR 1950 SC 27, D.S. Nakara and others vs. Union of India, AIR 1983 SC 130, State of Bombay and another vs. F.N. Balsara, AIR 1951 SC 318 and, in later years, in Minerva Mills Ltd. and others vs. Union of India and others, (1980) 3 SCC 625 and Kihoto Hollohan vs. Zachillhu and others, 1992 Supp (2) SCC 651.
21. 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 CAPL No. 7532 of 2024
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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. The impugned order, therefore, passed on the basis of a reading of Rule 2(c) (iii) of the Rules with the word ''daughter' qualified by the word ''unmarried' since struck down by this Court in Smt. Vimla Srivastava (and followed in Neha Srivastava), is manifestly illegal. It is so as it proceeds on the basis of a statutory provision, that has been declared unconstitutional and void by this Court.?
4. Learned counsel appearing for respondents is not able to oppose the above referred provision of law. He fairly submits that application can be re-considered, however, it will be subject to other requirements as well as subject to other provisions of law.
5. In aforesaid circumstances and since petitioner despite being married daughter is eligible for compassionate appointment, therefore, impugned order dated 30.09.2023 is hereby set aside and matter is remitted back to concerned authority to decide afresh within a period of six weeks from today. Concerned authority shall also take note of judgment passed by Supreme Court in Bank of Baroda and others vs. Baljit Singh, 2023 SCC OnLine SC 745 and Malaya Nanda Sethy v/s State of Orissa and Ors., 2022 SCC OnLine SC 684.
6. With aforesaid observations/ directions, this writ petition is disposed of."
4. As the order of writ Court was not complied with, contempt proceedings were initiated against opposite party. Despite service of notice of contempt application, the opposite party did not turn up. On 03.04.2026, bailable warrant was issued against opposite party pursuant to which he is present in the Court.
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5. Learned counsel appearing for opposite party states that order has been complied by present incumbent District Basic Education Officer and the applicant has been given job of Class-IV employee (Peon) and she has joined on 23.04.2026, copy of joining letter has been appended as annexure-3 to affidavit filed today.
6. According to counsel for opposite party, the opposite party was promoted and transferred from Mathura to Unnao on 15.06.2025 on the post of District Inspector of Schools, Unnao from the post of District Basic Education Officer, Mathura.
7. This Court is shocked to note this fact that writ Court on 09.01.2024 while remitting back the matter to District Basic Education Officer, Mathura required to accord fresh consideration in the light of the judgment of Apex Court as well as writ Court rendered in case of
Manjul Srivastava vs. State of U.P. and others, Writ-A No. 10928 of 2020, decided on 15.12.2020, the officer had kept the matter pending for almost one and half years. He disobeyed the order passed by writ Court and did not decide the application for grant of compassionate appointment to the applicant.
8. In the affidavit filed today, he claims that he has been transferred from Mathura to Unnao and promoted to the post of District Inspector of Schools on 15.06.2025. After the bailable warrant was issued on 03.04.2026, it seems that the officer had asked the District Basic Education Officer, Mathura to comply the order of writ Court and hurriedly the officer passed the order for appointment of the applicant on the post of Peon and made the applicant join on 23.04.2026.
9. This Court finds that the officer has no respect for the orders of writ Court or was expecting something else from the applicant. He has deliberately sat over the matter for a long period of one and half years as the applicant was entitled for compassionate appointment in view of law laid down by Hon'ble Apex Court. It seems that the officers of educational department are bent upon in not complying the order of this Court as well as Hon'ble Apex Court or expecting something from the litigants before complying the order of the Court.
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10. In the instant case, the officer did not comply the order of writ Court for one and half years and after he was transferred and bailable warrants were issued against him that the present incumbent has carried the order.
11. This is a serious matter and the authorities who are in control of the department should take appropriate action against such defaulting officers as it is leading to unnecessary litigation before this Court.
12. The High Court is flooded with matters regarding educational institutions because of incompetency of the officers or their expectations from the litigants.
13. This matter needs to be placed before Additional Chief Secretary, Basic and Secondary Education, Government of U.P., Lucknow for taking appropriate action against the officer concerned as he has deliberately flouted the orders of writ Court for one and half years and after he was transferred, the said order has been complied by present incumbent.
14. In view of the fact that as the order of writ Court has been complied by present incumbent, the contempt proceedings are being dropped and bailable warrant stands discharged.
15. The contempt application stands disposed of.
16. However, Registrar (Compliance) shall communicate this order to Additional Chief Secretary, Basic and Secondary Education, Government of U.P., Lucknow, within 48 hours, who shall look into the matter and take appropriate action against officer concerned and inform the Court through Registrar General, within next one month.
May 11, 2026
(V. S. SINGH)
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(Rohit Ranjan Agarwal,J.)
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