Allahabad High Court: Rajesh Singh Chauhan, J. while allowing the writ petition issued a writ in the nature of mandamus so as to command the opposite parties to reconsider the claim of the petitioner.
In the instant case, Nikhat Jahan, the petitioner’s request for appointment under Dying-in-Harness Rules was denied for the reason that she is a ‘divorced daughter’. Her father died on 19-6-2016.
She submitted that earlier her claim was rejected on 7-2-2017 for the reason that ‘divorced daughter’ does not come within the definition of “family” but such order was set aside by this Court vide judgment and order on 9-2-2018 in Service Single No.4418 of 2017 with the direction to the competent authority to consider the case of the petitioner afresh in view of the settled proposition of law, which was settled recently.
When the petitioner produced a certified copy of the aforesaid order, her claim was rejected in view of the dictum of the Supreme Court of 29-7-2016 passed in a special leave to appeal. To this, the petitioner submitted that the aforesaid dictum does not apply to the instant case.
The Court referred to Kusum Devi v. State of U.P., 2009 SCC OnLine All 1941 It was held that a divorced daughter is entitled to compassionate appointment. “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’, is 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’.” The same was held in State of U.P. v. Jayanti Devi, passed in Special Appeal Defective No. 1298 of 2017.
In the instant case expression “Unmarried” used in Rule 2(c) of U.P. Recruitment of Dependant of Government Servants Dying in Harness Rules, 1974, was considered. 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: – “Unmarried, is a term of flexible meaning; prima facie it means ‘never having been married’.
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.
From the above explanations, 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 means “not married on relevant date “or “widow” or “widower” or “divorcee”.
In context of the present case, the Court observed 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.
Therefore, the Court directed the opposite parties to reconsider the claim of the petitioner for compassionate appointment strictly in terms of judgment and order of 03.01.2019 passed by this Court in Special Appeal Defective No. 673 of 2018; State of U.P. v. Noopur Srivastava, with the expedition, preferably within a period of one month from the date of production of a certified copy of the order.[Nikhat Jahan v. State of U.P., 2019 SCC OnLine All 3036, decided on 21-08-2019]
