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Norin Rita Mashi vs State Of U.P.Thru Prin.Secy. … on 6 December, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Court No. – 20

Case :- SERVICE SINGLE No. – 32354 of 2019

Petitioner :- Norin Rita Mashi

Respondent :- State Of U.P.Thru Prin.Secy. (Energy) Lko Ors.

Counsel for Petitioner :- Arvind Kumar Tripathi

Counsel for Respondent :- C.S.C.,Puneet Chandra

Hon’ble Abdul Moin,J.

1. Heard learned counsel for the petitioner, learned Standing Counsel appearing for respondent no. 1 and Sri Puneet Chandra, learned counsel appearing for respondent nos.2 to 5.

2. With the consent of learned counsel for the parties, the writ petition is finally disposed of.

3. As the matter pertains only to a short question of law, no counter affidavit is required to be filed by the respondents.

4. Under challenge is the order dated 17.05.2019 passed by respondent no.5, a copy of which is Annexure-1 to the writ petition, whereby the claim of the petitioner for compassionate appointment has been rejected on the ground that in terms of the order of the Corporation dated 29.09.2012 issued on the basis of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as ‘1974 Rules’), the divorced daughter does not fall within the ambit of ‘family’ and consequently the case of the petitioner for compassionate appointment cannot be considered.

5. The case set forth by the petitioner is that her mother who was working as Peon in the respondent Corporation died in harness on 01.09.2012. The petitioner in the capacity of being divorced daughter staked her claim for compassionate appointment on account of death of her mother but the same has been rejected by the respondent Corporation through impugned order dated 17.05.2019, a copy of which is Annexure-1 to the writ petition, on the ground that the petitioner being a divorced daughter is not covered by the definition of ‘family’ as indicated above.

6. Learned counsel for the petitioner contends that once the petitioner is a divorced daughter having been divorced on 25.05.2014 consequently the respondents can not deprive the petitioner of her claim for compassionate appointment as taking into consideration the law laid down by this Court in the case of SectionNoopur Srivastava vs. State of U.P. and others passed in Writ Petition No.23906 (SS) of 2018 decided on 27.08.2018 as affirmed by the Division Bench of this Court with some modifications through judgment and order dated 03.01.2019 passed in Special Appeal Defective No.673 of 2018 in re: SectionState of U.P. and others vs. Noopur Srivastava, it is no longer res-integra that even a divorced daughter is entitled for compassionate appointment.

7. On the other hand, Sri Puneet Chandra, learned counsel for the Corporation, submits that once the office memorandum issued by the Corporation dated 29.09.2012 which has been issued on the basis of 1974 Rules does not provide for appointment of a divorced daughter on compassionate ground consequently there is no illegality or infirmity in the impugned order. Sri Chandra also argues that the mother of the petitioner died on 01.09.2012 while the petitioner has been granted a decree of divorce on 25.05.2014 and consequently it cannot be said that the petitioner was dependent on her mother on the date of her death, the divorce being subsequent and as such there is no infirmity in the impugned order.

8. Heard learned counsel for the contesting parties and perused the records. From perusal of the records, it comes out that the mother of the petitioner Smt. Victoria Mashi was working as Peon in the respondent Corporation who died in harness on 01.09.2012. Admittedly, the petitioner has been divorced on 25.05.2014. Also the office memorandum issued by the respondents dated 29.09.2012 does not have any provision for appointment of a divorced daughter on compassionate ground. Also it is to be seen as to whether the petitioner was dependent upon her mother at the time of her death i.e. on 01.09.2012.

9. In this regard, learned counsel for the petitioner has filed a supplementary affidavit dated 29.11.2019 in pursuance to the order of this Court dated 25.11.2019 whereby the plaint filed by the husband of the petitioner Sri Hari Lazrus under Section 32 of the Divorce Act, 1869 has been brought on record as Annexure SA-1 to the supplementary affidavit. As per the averments made in paragraph 9 of the said plaint, it comes out that it had been pleaded by the husband of the petitioner that the petitioner had left her husband’s home on 13.04.2002 and thus the plaint for restitution of conjugal rights was filed. In an order passed by the learned Additional Chief Judicial Magistrate, Lucknow, in Case No.216 of 2013 in re: SectionState vs. Hari Lazrus and others, a copy of which has been filed as Annexure SA-2 to the supplementary affidavit, it comes out that an application under Section 156(3) of Cr.P.C had been filed by the petitioner on 17.10.2002 against her husband and others under Sections 498-A, Section323, Section504, Section506 IPC and Section 3/Section4 of the Dowry Prohibition Act when the husband and in her laws were harassing the petitioner. Subsequent thereto, a divorce case was also filed by the petitioner which was registered as Case No.2541 of 2012 before the Family Court, Lucknow seeking divorce under the SectionIndian Divorce Act which culminated in a decree of divorce on 25.05.2014, a copy of which is Annexure-3 to the petition. The copy of the plaint has been brought on record as Annexure SA-3 to the supplementary affidavit. Thus, all the aforesaid would prima facie indicate that since the year 2002 itself the petitioner has been residing separately from her husband and would thus be dependent upon her mother and thus the ground raised by learned counsel for the respondents of the petitioner not being dependent upon her mother at the time of her death would prima facie not be sustainable .

11. So far as the ground of departmental circular of the respondents dated 29.09.2012 being based on 1974 Rules not providing for appointment to a divorced daughter, suffice is to state that this aspect of the matter has already been considered by the Division Bench of this Court in the case of Noopur Srivastava (supra) wherein Division Bench of this Court has held that a divorced daughter would also be entitled for being considered for compassionate appointment as she would fall within the ambit of being ‘Unmarried daughter’ as provided under the Rules, 1974. For the sake of convenience, the relevant observations of the Division Bench in the case of Noopur Srivastava (supra) are reproduced below:-

“In the instant case expression “Unmarried” used in the Rule 2 (c) of Rules of 1974, a beneficial legislation, requires consideration.

Normal and common meaning of expression “Unmarried” is “not married” or “Single”.

In the Wharton’s Law Lexicon 15th Edition the expression “Unmarried” has been defined as under:-

“Unmarried, is a term of flexible meaning; prima facie it means ‘never having been married’, but the context may show that it means ‘not having a husband or wife’, Re Sergeant, (1884) 26 Ch D 575; Blundell v. De Falbe, (1888) 57 LJCh 576.

Means not re-married, AIR 1963 Cal 428 (429). Section(Hindu Marriage Act, 1955, s.25)

Not married; single, Black’s Law Dictionary, 7th Edn.

Unmarried, means not married. Unmarried daughters under the Hindu law have got better claims on the ‘stridhana’ of the mother, Rajban v. Rahim Bux, (1969) ILR 1 AII 633:(1969) AII LJ 16:(1969) AII WR (HC) 78.”

As per Merriam Webster’s Collegiate Dictionary, 11th edition, “unmarried” means ‘not now or previously married’ or ‘being divorced or widowed’.

In Stroud’s Judicial Dictionary of Words and Phrases, 7th edition, the primary meaning of ‘unmarried’ is ‘never having been married’ or ‘without ever having been married’ and the secondary meaning is ‘having no spouse living at the material time’. It is a word of flexible meaning, and slight circumstances could be sufficient to give the word its secondary meaning.

Black’s Law Dictionary, 6th edition, says that the primary meaning of ‘unmarried’ is ‘never having been married’; but it is a word of flexible meaning and it may be construed as ‘not having a husband or wife at the time in question; eg. widow or widower or divorcee’.

From the aforesaid, it is clear that the term ‘Unmarried’ has flexibility in its meaning and it does not only mean “not married” or “single” or “never married”, it also mean “not married on relevant date ” or “widow” or “widower” or “divorcee”.

In context of the present case it is needless to observe that a widow remains to be part of her husband’s family even after the death of such husband, whereas upon the marriage being dissolved, the divorcee daughter does not continue to be a part of the family of her divorced husband and would continue to remain single unless she remarries.

Further, under Rule 2 (c) of Rules of 1974 there is no express exclusion that a “divorced daughter” is not entitled to appointment under the Rules nor the expression “Unmarried” daughter has been clarified by putting the words to the effect that it means a “daughter never married” or “daughter not married” and being so the secondary meaning of term “Unmarried” cannot be ignored and is liable to be taken into account in the given circumstances in context of beneficial legislation i.e. Rules of 1974.

On the basis of aforesaid discussion in the context of Rules of 1974, we hold that the expression “divorced daughter” is included/implicit in the expression “Unmarried daughter”. Accordingly we hold that a “divorced daughter” is entitled to compassionate appointment if she was dependant, on the date of death of her father/mother (the employee) and the marriage was dissolved legally either prior to or after the date of death of bread earner of the family and she remains “not married” at the time of appointment.”

12. Accordingly, from a perusal of the judgment in the case of Noopur Srivastava (supra), it clearly comes out that even a divorced daughter would fall within the ambit of being an unmarried daughter as contemplated under the provisions of Rules, 1974, consequently would be entitled for consideration of her claim for compassionate appointment as provided under the Rules, 1974.

13. Taking into consideration the aforesaid discussion, the impugned order dated 17.05.2019 cannot be said to be legally sustainable in the eyes of law.

14. Accordingly, the writ petition is partly allowed. The order dated 17.05.2019, a copy of which is Annexure-1 to the writ petition, is quashed. Respondent no.5 is directed to consider the claim of the petitioner for compassionate appointment taking into consideration the observations made above. The respondent no.5 would also consider the question of dependency of the petitioner on her mother as on 01.09.2012 taking into consideration the suit for divorce filed by the husband of the petitioner, the application filed by the petitioner against her husband and in-laws and the suit for divorce filed by the petitioner in the year 2012.

15. For this purpose, it is provided that the petitioner shall send a certified copy of this order along with representation duly annexing the copy of the decree of divorce, divorce suit filed by the husband, the order passed by the Additional Chief Judicial Magistrate, Lucknow dated 08.07.2013 and copy of the divorce petition filed by the petitioner.

16. Let such consideration be done within a period of three months from the date of receipt of a certified copy of this order.

Order Date :- 6.12.2019

A. Katiyar

 

 

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