# Km. Farha v. State of U.P. & Ors

- **Citation:** (2024) 11 ILRA 48
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-20
- **Case number:** Writ A No. 24901 of 2021
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-farha-v-state-of-u-p-ors-51080
- **Pages:** 4

## Headnote

Law
-Constitution
of
India,1950-Article 226-UP Recruitment of
Dependedants of Government Servants
Dying
in
Harness
Rules,1974-The
petitioner challenged the rejection of her
claim
for
compassionate
appointment
after her brother died in harness-the claim
was based on Rules 1974 as amended in
2011, which allows an unmarried sister of
a deceased government servant to seek
compassionate
appointment-The
Allahabad High Court clarified that a
"divorced"
individual
qualifies
as
"unmarried"
for
the
purpose
of
compassionate appointment under Rules
1974-The court held that a divorce being
legal dissolution of marriage, renders a
person unmarried in status unless they
remarry-A non-speaking rejection order,
lacking application of mind or reasoning,
violates principles of natural justice and is
liable to be quashed-The court directed
the competent authority to reconsider the
claim within a stipulated period, ensuring
compliance
with
the
law
and
fair
application of the Rules.(Para 1 to 16)

The writ petition is allowed. (E-6)

List of Cases cited:

Mohinder Singh Gill & anr. Vs the Chief Election
Commr. New Delhi & anr.(1978) AIR 851 AIR

## Text

48 INDIAN LAW REPORTS ALLAHABAD SERIES
eligibility, as has been done in this case,
such positions cannot be allowed to be
retained. So far as the submission of noncompliance of the Rules is concerned, the
judgment in Vishwanatha Pillai (supra)
answers the question. The Respondentemployees in the present case, having
obtained their position by fraud, would not
be considered to be holding a post for the
purpose of the protections under the
Constitution. We are supported in this
conclusion by the observations made in
Devendra Kumar v. State of Uttaranchal.
In paragraph 25 thereof it was observed -

"25. More so, if the initial action is
not in consonance with law, the subsequent
conduct of a party cannot sanctify the same.
Sublato fundamento cadit opus - a foundation
being removed, the superstructure falls. A
person having done wrong cannot take
advantage of his own wrong and plead bar of
any law to frustrate the lawful trial by a
competent court. In such a case the legal maxim
nullus commodum capere potest de injuria sua
propria applies. The persons violating the law
cannot be permitted to urge that their offence
cannot be subjected to inquiry, trial or
investigation. (Vide Union of India v. Major
General Madan Lal Yadav [(1996) 4 SCC 127:
1996 SCC (Cri) 592: AIR 1996 SC 1340] and
Lily Thomas v. Union of India [(2000) 6 SCC
224: 2000 SCC (Cri) 1056].) Nor can a person
claim any right arising out of his own
wrongdoing (jus ex injuria non oritur)."
(Emphasis supplied)

15. The impugned judgment passed
by the High Court, in view of the above
discussion, is set aside and the order passed by
the Tribunal dismissing the Respondentemployees' Original Applications is restored.
The Respondent- employees were rightly
dismissed from service by the Appellantemployer. ..........."

20. From the above, it is well
established that in case, the employment has
been obtained based on fraudulent documents,
the beneficiary of such fraud cannot seek that
procedure prescribed under the Rules of 1999
must be followed.

21. So far as the judgment in the case
of Smt. Parmi Maurya (supra) relied on by
counsel for the respondent is concerned, it was
a case where the Division Bench came to the
conclusion that petitioner therein, was not
afforded adequate opportunity of hearing.
However, in the present case, it is ex facie clear
from the order impugned that she was provided
adequate opportunity with regard to her
documents being forged and fabricated and the
only plea raised by her was that she would
produce duplicate copies of the said documents
and neither in the writ petition nor in the
present appeal, she has been able to produce
any further document/material to substantiate
that the mark-sheets issued to her, were not
forged and fabricated. "

8. The case at hand is squarely covered by
the law laid down in Punita (supra).

9. In the wake of preceding discussion,
there is no infirmity in the procedure adopted
by the respondents while passing the impugned
order and the impugned order is lawful and just.
The writ petition is liable to be dismissed and is
dismissed.
----------
(2024) 11 ILRA 48
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.11.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ A No. 24901 of 2021

Km. Farha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
11 All. Km. Farha Vs. State of U.P. & Ors.
49
Counsel for the Petitioner:
Yogesh Chandra Srivastava

Counsel for the Respondents:
C.S.C., Puneet Chandra

A.
Service
Law
-Constitution
of
India,1950-Article 226-UP Recruitment of
Dependedants of Government Servants
Dying
in
Harness
Rules,1974-The
petitioner challenged the rejection of her
claim
for
compassionate
appointment
after her brother died in harness-the claim
was based on Rules 1974 as amended in
2011, which allows an unmarried sister of
a deceased government servant to seek
compassionate
appointment-The
Allahabad High Court clarified that a
"divorced"
individual
qualifies
as
"unmarried"
for
the
purpose
of
compassionate appointment under Rules
1974-The court held that a divorce being
legal dissolution of marriage, renders a
person unmarried in status unless they
remarry-A non-speaking rejection order,
lacking application of mind or reasoning,
violates principles of natural justice and is
liable to be quashed-The court directed
the competent authority to reconsider the
claim within a stipulated period, ensuring
compliance
with
the
law
and
fair
application of the Rules.(Para 1 to 16)

The writ petition is allowed. (E-6)

List of Cases cited:

Mohinder Singh Gill & anr. Vs the Chief Election
Commr. New Delhi & anr.(1978) AIR 851 AIR

(Delivered by Hon'ble Abdul Moin, J.)

1. 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.

2. 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.

3. 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.

4. 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.

5. The contention of learned counsel
for the petitioner is that once the divorce
50 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

6. 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.

7. 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 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.

8. 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.

9. 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.

10. 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.

11. In this regard, the Court may see
the definition of "divorce" "divorcee" and
"divorced" as finds place in Cambridge
Advanced Learner's Dictionary, 3rd Edition
which defines "divorce" "divorcee" and
"divorced" as follows:

"Divorce: When a marriage is
ended by an official or legal process.
11 All. Dr. Prabhanshu Srivastava Vs. State of U.P. & Ors.
51

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

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

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

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

12.
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.

13. 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.

14. The further aspect is that a perusal
of the order impugned 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.

15. 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.

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

17.
The
order
impugned
dated
02.03.2020, a copy of which is annexure 1
to the writ petition, is quashed.

18. 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.

19. Let such an order be passed within
six weeks form the date of receipt of a
certified copy of this order.
----------
(2024) 11 ILRA 51
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.11.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ A No. 31358 of 2021

Dr. Prabhanshu Srivastava ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sachin
Upadhyay, Shivendra
S
Singh
Rathore, Shivendra Shivam Singh Ra