Allowed

Km. Farha v. State of U.P. Thru. Prin. Secy. Energy Lko. and Ors.

Allahabad HC20 Nov 2024WRIA/24901/2021

Case brief

AI extract

What is this about?

High Court allowed a writ petition challenging the rejection of compassionate appointment claim by an unmarried sister of a deceased divorcee. Court quashed the silent order and directed fresh consideration.

What did the court decide?

Impugned order quashed. Directions for fresh order on compassionate appointment within six weeks.

Km. Farha Vs State of U.P. Thru. Prin… — Pension and Retirement Benefits | Allahabad HC (2024)

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A.F.R.

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Neutral Citation No. - 2024:AHC-LKO:76888

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Court No. - 5

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Case :- WRIT - A No. - 24901 of 2021 Petitioner :- Km. Farha Respondent :- State Of U.P. Thru. Prin. Secy. Energy Lko. And Ors. Counsel for Petitioner :- Yogesh Chandra Srivastava Counsel for Respondent :- C.S.C.,Puneet Chandra

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Hon'ble Abdul Moin,J.

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Heard learned counsel for the petitioner, learned Standing Counsel for respondent no. 1 and Shri Puneet Chandra, learned counsel for respondents no. 2 and 3.

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Under challenge is the order dated 02.03.2020, a copy of which is annexure 5 to the writ petition, passed by respondent no. 3 wherein the claim of the petitioner for compassionate appointment has been rejected. Further prayer is for a writ of mandamus commanding the respondents to grant employment to the petitioner under the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the Rules 1974) as amended in the year 2011.

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Bereft of unnecessary details the facts of the case are that the petitioner's brother namely Shri Nihal Ahmad who was working under respondent no. 3 died in harness on 13.08.2019. As Shri Nihal Ahmad was a divorcee consequently the petitioner in the capacity of being unmarried sister staked her claim for being appointed on compassionate grounds. Admittedly the respondent no. 1 has adopted the Rules 1974 with certain amendments as per office order dated 29.09.2012, a copy of which is annexure 9 to the writ petition, per which it is apparent that an unmarried sister of a deceased government servant who was unmarried would also be eligible for being appointed on compassionate grounds.

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Learned counsel for the petitioner contends that Shri Nihal Ahmad had given divorce to his wife in April 2006. The competent court namely the Principal Judge, Family Court, Lucknow in Regular Suit No. 702 of 2006 in re: Shri Nihal Ahmad vs Smt Shahiba vide order dated 25.01.2012, a copy of which is annexure 1 to the rejoinder affidavit, has accepted the compromise between the parties per which both the parties i.e. Shri Nihal Ahmad and his wife have agreed about divorce as entered into between them in April 2006.

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The contention of learned counsel for the petitioner is that once the divorce took place in April 2006 and was duly recognized by the competent court of law vide its order dated 25.01.2012 as such on the date of death of Shri Nihal Ahmad on 13.08.2019 he would fall within the ambit of being unmarried and thus the petitioner was perfectly eligible for being considered for compassionate appointment which claim has been rejected vide order impugned dated 02.03.2020 with patent non application of mind by simply indicating that after consideration of the Rules it has not been found feasible to appoint the petitioner on compassionate grounds.

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The contention of learned counsel for the petitioner is that although in the order impugned no reasons emerges as to why the claim of the petitioner for compassionate appointment has been rejected yet in the counter affidavit which has been filed by the respondents it has simply been averred that the divorce of Shri Nihal Ahmad, the brother of the petitioner, is null and void in the eyes of law and it is not duly executed and the status of Shri Nihal Ahmad remains married.

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It is contended that the aforesaid reasons as indicated by the respondents in the counter affidavit cannot be considered to be a reasonable or valid ground for rejection of claim of the

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petitioner for compassionate appointment as no such ground has been taken in the order impugned dated 02.03.2020 and as such the said reason is not liable to be considered keeping in view the law laid down by Hon'ble Supreme Court in the case of Mohinder Singh Gill and another vs the Chief Election Commissioner, New Delhi and another, AIR 1978 AIR 851 .

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Apart from it, it is contended that once the order impugned does not indicate any reason consequently the order impugned is a non speaking order which merits to be quashed.

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On the other hand, Shri Punit Chandra, learned counsel for the respondents no. 2 and 3 has tried to justify the order impugned by indicating the fact that even though there might have been divorce entered into between Shri Nihal Ahmad and his wife in the year 2006 yet he would not fall within the ambit of being unmarried in the capacity of being a 'divorcee' at the time of his death and consequently there is no error in the order impugned.

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Having heard learned counsel for the parties and having perused the record it emerges that the petitioner's brother Shri Nihal Ahmad died in harness on 13.08.2019. Shri Nihal Ahmad is said to have divorced his wife in April 2006. The competent court vide its order dated 25.01.2012 has also recognised the divorce in terms of the compromise entered into between the parties meaning thereby that at the time of death i.e on 13.08.2019 Shri Nihal Ahmad cannot be said to be married thus the ground as had been taken by the respondents in the counter affidavit that Shri Nihal Ahmad was married at the time of death is patently misconceived in as much as a divorced person cannot be said to be married by any stretch of imagination.

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In this regard, the Court may see the definition of "divorce"

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"divorcee" and "divorced" as finds place in Cambridge Advanced Learner's Dictionary, 3rd Edition which defines "divorce" "divorcee" and "divorced" as follows:

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"Divorce: When a marriage is ended by an official or legal process.

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Divorcee: someone who is divorced and who has not married again.

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Divorced: married in the past but not now married."

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The Black's Law Dictionary, 9th Edition defines "divorce" as follows:

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"The legal dissolution of a marriage by a court."

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From perusal of aforesaid definitions as given in Cambridge Advanced Learner's Dictionary as well as Black's Law Dictionary it clearly emerges that divorce is marriage ended by official or legal process or a legal dissolution of marriage, divorcee is a person who is divorced and has not married again and divorced is married in the past but not now married. Thus once a person has not married again he would obviously fall within the ambit of being unmarried though he may be a divorcee.

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Accordingly, when the grounds as taken in the counter affidavit filed by the respondents are seen vis a vis the definitions as indicated above it clearly emerges that the contention on the part of the respondents that as the deceased brother of the petitioner was a divorcee consequently he would fall within the ambit of being married is patently misconceived and consequently the said ground is rejected.

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The further aspect is that a perusal of the order impugned

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dated 02.03.2020 would indicate that no reasons emerge as to why the claim of the petitioner for compassionate appointment has been rejected. It is settled position of law that every order should be a speaking order in as much as reasons should emerge reflecting application of mind by the competent authority on the disputes which arrive before him.

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As already indicated above, the order impugned dated 02.03.2020 does not indicate as to why the claim of the petitioner for compassionate appointment has been rejected and thus it is apparent that the order impugned is patently nonspeaking.

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Keeping in view the aforesaid discussion, the writ petition is allowed .

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The order impugned dated 02.03.2020, a copy of which is annexure 1 to the writ petition, is quashed.

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The competent authority i.e. respondent no. 3 is directed to pass a fresh order on the claim of the petitioner for compassionate appointment keeping in view the aforesaid discussion.

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Let such an order be passed within six weeks form the date of receipt of a certified copy of this order.

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Order Date :- 20.11.2024 J. K. Dinkar

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Digitally signed by :- JESHU KUMAR DINKAR High Court of Judicature at Allahabad, Lucknow Bench

Km. Farha v. State of U.P. Thru. Prin. Secy. Energy Lko. and Ors.

Case brief

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Km. Farha v. State of U.P. Thru. Prin. Secy. Energy Lko. and Ors.

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