Allahabad High Court
State Of U.P. Thru. Prin. Secy. Basic ... vs Noopur Srivastava on 3 January, 2019
Equivalent citations: AIRONLINE 2019 ALL 2987
Bench: Vikram Nath, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No.- 1 C.M. Application No. 146871 of 2018 in re: Case :- SPECIAL APPEAL DEFECTIVE No. - 673 of 2018 Appellant :- State Of U.P. Thru. Prin. Secy. Basic Education Dept. & Ors. Respondent :- Noopur Srivastava Counsel for Appellant :- Sher Bahadur Yadav Counsel for Respondent :- O.P. Tiwari Hon'ble Vikram Natha,J.
Hon'ble Saurabh Lavania,J.
Heard Sri Anand Kumar Singh, learned Standing Counsel for the appellants and Sri O.P. Tiwari, learned counsel appearing for the sole respondent.
According to the report of the Stamp Reporter, there is a delay of 86 days.
Having perused the affidavit filed in support of the application for condonation of delay, we find that the delay has been satisfactorily explained.
Accordingly, the delay in filing the appeal is condoned.
Application No. 146871 of 2018 for condoning the delay is allowed.
Order Date:- 3.1.2019 Arun/-
AFR Court No.- 1 Case :- SPECIAL APPEAL DEFECTIVE No. - 673 of 2018 Appellant :- State Of U.P. Thru. Prin. Secy. Basic Education Dept. & Ors.
Respondent :- Noopur Srivastava Counsel for Appellant :- Sher Bahadur Yadav Counsel for Respondent :- O.P. Tiwari Hon'ble Vikram Natha,J.
Hon'ble Saurabh Lavania,J.
( Dictated by Hon'ble Saurabh Lavania,J.) Heard Sri Anand Kumar Singh, learned Standing Counsel for the appellants and Sri O.P. Tiwari, learned counsel appearing for the sole respondent.
Under appeal is the judgment passed by the Hon'ble Single Judge dated 27.08.2018 in the Writ Petition No. 23906 (S/S) of 2018 whereby, the learned Single Judge after holding that the petitioner (respondent in appeal) is entitled to compassionate appointment by virtue of being the dependent/divorced daughter of the deceased and, after holding the same, directed the respondent No. 3 in writ petition to grant appointment to the petitioner (respondent in appeal) on compassionate ground within a period of two weeks.
Aggrieved by the said judgment, the present appeal has been preferred on the main grounds to the effect that the Hon'ble Single Judge while allowing the Writ Petition has failed to appreciate the following two aspects of the case:-
(i) Divorced daughter is not included as dependant under Rule 2 (c) of U.P. Recruitment of Dependant of Government Servants Dying in Harness Rules, 1974 (in short "Rules of 1974") and
(ii) The judgment passed in Neha Srivastava's case wherein it has been held that married daughter comes in the ambit of the expression ''family member' under the Rules of 1974 has been stayed by Hon'ble Apex Court in SLP No. 13886 of 2016 on 29.07.2017.
The facts in brief as appear from the record of the appeal are that the petitioner (respondent in appeal) is the divorced daughter of the deceased namely, Smt. Laxmi Srivastava who was posted as Headmaster in Kanya Primary School, Ramnagar Chetra, District Unnao and the divorce was granted on 08.03.2013, as appears from the order dated 08.03.2013 which is on record as Annexure No. 4 to the writ petition. The mother of the petitioner (respondent in appeal) expired on 13.05.2017. Thereafter, the petitioner (respondent in appeal) applied for compassionate appointment on the post of Assistant Teacher. For the purposes of the said appointment, counseling was held on 26.10.2017 and in the said counseling, the petitioner (respondent in appeal) appeared before the Committee and despite having completed all requisite formalities was not offered the appointment because of which, the petitioner (respondent in appeal) filed the Writ Petition No. 2777 (S/S) of 2018 which was disposed of by this Court on 31.01.2018 with a direction to consider the case of the petitioner (respondent in appeal). Thereafter, the order dated 11.07.2018 was passed by the opposite party No. 3. The order dated 11.07.2018 was challenged by the petitioner (respondent in appeal) in the writ petition in which the judgment under appeal dated 27.8.2018 has been passed. Vide order dated 11.07.2018, the case of the petitioner/respondent was rejected on the ground that a divorced daughter is not included under Rule 2 (c) of the Rules of 1974.
In the writ petition, the order has been challenged on the main ground to the effect that according to the verdict of this Court reported in (2001) 3 UPBLEC 2431 (Smt. Kusum Devi v. State of U.P. & Others), the petitioner (respondent in appeal) is entitled to appointment on compassionate ground. In the said judgment, this Court has held that a divorced daughter is entitled to compassionate appointment. The relevant Para 10 of the said judgment is quoted below:-
"A divorced daughter, if dependent upon her father, cannot be excluded and has to be included within the meaning of the word ''family' since such a ''divorced daughter', if dependent upon her father, has to be treated at par with an unmarried daughter or widowed daughter as all of them continue to be the liability of their father as member of the family of their ''father'."
We have perused the record of the appeal as well as the judgment under appeal dated 27.08.2018.
The learned Single Judge, while allowing the writ petition, has relied upon two judgments of this Court, the same are:-"
(i)Kusum Devi(Smt.) Vs. State of U.P. & others; (2001) 3 UPLBEC 2431,(The judgment passed by the Hon'ble Sigle Judge).
(ii)State of U.P. & others Vs. Jayanti Devi, passed in Special Appeal Defective No.1 298 of 2017 dated 16.05.2017.
The Division Bench in the case of "Jayanti Devi" has held that a divorced daughter is entitled to compassionate appointment.
The counsel for the appellant while assailing the judgment dated 27.08.2018 submits that the judgment passed in Neha Srivastava's case by this Court has been stayed in SLP No. 13886 of 2016 on 29.07.2016 and on the basis of the same his submission is that the judgment passed in Neha Srivastava's case was based on the judgment passed in the case of Smt. Vimla Srivastava and others v. State of U.P. [2016(1) ADJ 21 (DB)] and the case of "Jayanti Devi" is based on the judgment passed in the case of "Vimla Srivastava" and the operation of judgement passed in Neha Srivastava's case has been stayed by the Hon'ble Apex Court and impact of the said stay is that the judgment passed in the case of "Jayanati Devi" ought not to have been taken into account by the Hon'ble Single Judge. It has been further submitted that case of Gudiya Awasthy (Annexure 6 to the Special Appeal) has not been dealt with properly by the Hob'ble Single Judge while allowing the writ petition.
Per contra, the submission of the counsel for the petitioner (respondent herein) is that the judgments of this Court in the cases of Neha Srivastava and Vimla Srivastava relate to the inclusion of a married daughter under the definition of "family" under Rule 2 (c) of Rules of 1974 and the present case relates to a divorced daughter and the order of Hon'ble Apex Court dated 29.07.2016 would not apply in the instant case. Further submission is that the plea based on order of the Hon'ble Apex Court dated 29.07.2016 was not raised before the Hon'ble Single Judge and before the Writ Court the plea based on judgment dated 04.07.2011 passed in Writ Petition No. 2707 (S/S) of 2004 (Gudiya Awasthy v. State of U.P.) was raised and the same was rejected in view of the law laid down by the Division Bench in Jayanti Devi's case.
Further submission is that the case of Jayanti Devi is the case of a divorced daughter and the judgment passed in the said case dated 16.05.2017 has not been stayed and the same is holding the field on the issue of entitlement of appointment of a divorced daughter on compassionate ground.
Considering the submissons of Counsel for both the parties we feel that we should independentely consider the issue pertaining to entitlement of appointment of a "divorced daughter" on compassionate ground under the Rules of 1974.
The Rule 2 (c) is under consideration in the present appeal and as such the same is quoted below for ready reference.
Rule 2 (c) "family" shall include the following relations of the deceased Government servant;
(i)wife or husband;
(ii)sons/adopted sons;
(iii)unmarried daughters, unmarried adopted daughters, widowed daughters and widowed daughters-in-law
(iv)unmarried brothers, unmarried sisters and widowed mother dependent on the deceased Government servant, if the deceased Government servant was unmarried;
(v)aforementioned relations of such missing Government servant who has been declared as "dead" by the competent court; provided that if a person belonging to any of the above mentioned relations of the deceased Government servant is not available or is found to be physically and mentally unfit and thus ineligible for employment in Government service, then only in such situation the word "family" shall also include grandsons and the unmarried grand daughters of the deceased Government servant dependent on him."
It is relevant to take note of the fact that the State is required to endeavour for promoting welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social, economic and political should prevail. The State is required to make effective provisions for securing the right to work and to public assistance in case of unemployment, old age, sickness, disablement and any other cause of undesired want for the welfare of the Citizens/Govt. Employees and considering the aforesaid aspect, several schemes were framed and Act and Rules were enacted (Welfare Legislation and Subordinate Legislation) out of which most are still operative. As a part of promotion of the welfare of those recruited by the State to various services established by it, the necessity to provide employment opportunities to the members of the family of the deceased government servants arose and the State being a social welfare State and a model employer enacted beneficial legislation i.e. Rules of 1974, whereby providing opportunity of employment to one of the dependants of the deceased employee. Needless to say that the Rules for compassionate appointment were framed to meet out the sudden financial crisis of the dependant(s)/family of the deceased employee. Rules for compassionate appointment are an exception to the general rule of employment/appointment. The general rule of employment/appointment in public service, as a rule, is that the appointment can be made strictly on merit and any other mode will be voilative of Article 14 and 16 of the Constitution and give open space to arbitrariness and nepotism in providng the appointment.
The Rules of 1974 is a beneficial legislation, which has been enacted by the State Govt. as a Social Welfare measure, and being so it has to be interpreted in context or background for or under which the Rules of 1974 were framed/enacted and were enforced.
The duty of the Court in interpreting or construing a provision is to read the section and understand its meaning in the context. Interpretation of a provision or Statute is not a mere formality/semantic but an attempt to find out the meaning/intention of the legislation from the words used, understand the context and the purpose of the expression used and then to construe the expression sensibly.
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). (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.
In addition, the judgment dated 04.07.2011 passed in Writ Petition No. 2707 (SS) of 2004 (Gudiya Awasthy v. State of U.P.) was challenged in the Special Appeal No. 19 of 2012 and this Court vide judgment dated 04.09.2018 has set aside the jugement dated 04.07.2011 and being so, no reliance can be placed on the judgment dated 04.07.2011 as the effect of setting aside a judgment in the eye of law is that, the judgment which has been set aside is not in existence and a judgment/order by which the judgment is set aside would be the operative decision in the case. According to doctrine/principle of "merger" orginal decision merges in appellate decision. The logic underlying the doctrine of merger is that there cannot be more than one decree or order governing the same sujbect matter at a given point of time. Thus, judgment dated 04.07.2011 passed in Gudiya Awasthy's case is liable to be ignored and argument based on the same are not sustainable and liable to be rejected.
For the reasons aforesaid and after considering the arguments advanced by the counsel for respective parties and considering the record of appeal we find that the petitioner (respondent in appeal) is a divorced daughter whose marriage was dissolved on 08.03.2013 and the mother of the petitioner (respondent in appeal), who was in employment, expired on 13.05.2017 i.e. after the divorce. The ground of rejection of claim of appointment on compassionate ground as mentioned in the order dated 11.07.2018 and the fact that in the instant case of a "divorced daughter" the Hon'ble Single Judge, on the basis of judgments passed in the case(s) of Jayanti Devi and Kusum Devi, wherein the issue of divorced daughter was involved, passed the judgment under appeal as well as the finding of this Court, on the basis of meaning of the term "Unmarried", noted above, in the context of the Rules of 1974 that a "divorced daughter" is entitled to compassionate appointment; we feel that no interference is required in the judgment under appeal dated 27.08.2018.
The Hon'ble Single Judge has given a specific direction for providing appointment on compassionate ground and we feel that this direction be modified. The direction issued by the learned Single Judge to grant appointment to the petitioner (respondent in appeal) on compassionate appointment within a period of two weeks is modified to the extent that the respondent No. 3 (appellant No. 3 herein) would consider the claim of the petitioner (respondent in appeal) for compassionate appointment in the light of the observations and findings recorded in the judgment within a period of four weeks from the date of production of a certified copy of this order.
The Appeal is partly allowed.
Order Date:- 3.1.2019 Arun/-