Smt. Anita Sharma vs State of U.P. and Others

Sunil Hali, J.—After the death of her husband late Vijay Datt Sharma, the petitioner being legally wedded wife of the deceased applied for appointment on compassionate ground before the respondents under the Dying in Harness Rules, 1974. Since no action was taken on the application of the petitioner by the respondents, the petitioner filed a writ petition before this Court being Civil Misc. Writ Petition No. 7597 of 2005 in which a direction was issued by this Court on 17.2.2005. In pursuance of the directions issued by this Court, the respondents have rejected the application of the petitioner on the ground that she has failed to produce the relevant documents to prove her right to claim appointment under the Dying in Harness Rules of 1974. Heard learned Counsel for the parties.

It seems that an application was filed by respondent No. 6 that the deceased had executed a will in his favour in which it is stated that he had divorced the petitioner and he was not living with her. It was further claimed that the will has been executed in his favour by the deceased. He also sought appointment on the basis of the aforesaid Rules of 1974 claiming to be a member of the family. His application has been rejected as he does not fall within the definition of family, as indicated in the aforesaid rules.

The only contention raised by the learned Counsel for the respondent is that since the dispute has been raised by respondent No. 6 that the petitioner is the divorced wife of the deceased, as such, she is not entitled to claim her appointment on compassionate ground under the aforesaid rules. On the application being made the District Basic Education Officer was directed to hold an inquiry into the matter in order to find out as to whether the petitioner has been divorced by her deceased-husband or not? In this behalf a report was obtained from the concerned Tehsildar and Corporator of the Municipality. A report was submitted by the Corporator in favour of the petitioner stating therein that the petitioner is the wife of the deceased. The report has not confirmed that the petitioner has married after death of her husband. Even the report of the Senior Treasury Officer, Mainpuri dated 27.2.2007 has stated that there is no report as to whether the petitioner has married second time or not.

Be that as it may, the fact remains that the respondents do not deny that the petitioner was married with the deceased-employee. Her right to claim appointment has been denied on the ground that she was required to obtain orders from the Court to establish that she is not married after the death of her deceased husband. After admitting her legally wedded wife of the deceased, the respondents cannot deny her right to seek appointment on compassionate ground. The dispute raised by the respondents that she has married after the death of her deceased husband has to be proved by him. Merely because it has been said that a will has been executed in favour of respondent No. 6 is not sufficient to disentitle her to seek appointment on compassionate ground. Any recital in the will is required to be proved. Nothing has been produced by respondent No. 6 or respondents to show that she was divorced by the deceased employee. It is only on the basis of conjectures the claim of the petitioner has been rejected by the respondent No. 3. The petitioner was called upon to produce some documents to show that she is not married or as to whether she has inherited the estate of the deceased or not. The petitioner being the natural heir would be entitled to inherit the estate of the deceased. However, if she has been denied the right to receive estate of her deceased-husband would not deny her status as legally wedded wife of the deceased. The execution of the testamentary document would not disentitle her to seek appointment under the Rules of 1974. Under the aforesaid Rules, wife, son, daughter and adopted son have right to seek employment. The execution of will would not take away the status of the petitioner as natural heir of the deceased. The execution of the will in favour or respondent No. 6 in itself would not deny the petitioner to seek employment under the Rules. She would be entitled to seek employment on compassionate ground being the legally wedded wife of the deceased even if she has been denied the estate of her husband. For the aforesaid discussion, the writ petition is allowed and the impugned order dated 16.3.2007 passed by respondent No. 3 is quashed. The respondents are directed to consider the case of the petitioner for appointment on compassionate ground provided she fulfills the eligibility set-out under the aforesaid Rules of 1974. Her eligibility would be determined on the date she had filed an application for compassionate appointment. If she is found eligible for the appointment, necessary orders will be passed by the respondent No. 3 within two months from the date a certified copy of this order is filed before him.