Seema (Divorcee) vs State Of MP And Others

This petition under Article 226 of the Constitution of India has been filed against the order dated 14.03.2018 (Annexure P-1) passed by Joint Director, Directorate of Health Service / respondent No. 4, by which the appointment on compassionate ground has been denied to the petitioner.

It is the case of the petitioner that her mother died in harness. The petitioner was married to one Vinod Kumar on 19.04.1993. However, as there were differences between the parties, therefore, by decision dated 09.06.2013, Gram Panchayat Raun District Bhind has severed the marital ties between the petitioner and her husband and, thereafter, she was residing with her father. It is submitted that father of the petitioner has already expired and after the death of her mother, she is the only surviving legal representative and, therefore, she filed an application for grant of compassionate appointment. However, her application has been rejected on the ground that as per Clause 2.4 of the Policy, the married daughter is entitled for compassionate appointment only when the living spouse has refused to accept the appointment.

Challenging the order passed by the respondent No. 4, it is submitted by the counsel for the petitioner that the petitioner was granted divorce as per custom prevailing in the Society and, therefore, her case is covered by Clause 2.3 of the Policy. Although originally in Clause 2.2 of the Policy of appointment on compassionate ground, the words "unmarried daughter" were written, however, the Full Bench of this Court by judgment dated 02.03.2020 passed in W.A. No. 756/2019 (Meenakshi Dubey Vs. M.P. Purva Kshetra Vidyut Vitaran Co. Ltd. and others has held that Clause 2.2 of the Policy so far as it deprives the married daughter from the right of consideration of compassionate appointment is ultra vires. Accordingly, it is submitted that the case of the petitioner is required to be considered under Clause 2.2 of the Policy for appointment on compassionate ground.

Per contra, it is submitted by the counsel for the State that for consideration of the candidature of a daughter whether married or unmarried under Clause 2.2 of the Policy, the precondition is that the deceased government employee should be survived by his or her spouse and if the spouse doesnot hold the requisite qualification or in the case of denial by the spouse to take appointment on compassionate ground and upon nomination of the son or the daughter, the appointment on compassionate ground can be granted to the son or the daughter. However, in the present case, admittedly, the father of the petitioner had already expired and the mother of the petitioner expired without leaving any living spouse and, therefore, the first condition of Clause 2.2 of the Policy for compassionate appointment is not satisfied and, accordingly, the case was rightly considered under Clause 2.4 of the Policy. It is further submitted that the Full Bench of this Court in the case of Meenakshi Dubey (supra) has upheld the validity of the Clause 2.4 of the Policy.

So far as the divorce of the petitioner is concerned, it is submitted that in absence of any proof that there is a custom in the Society to the effect that the Gram Panchayat can grant divorce, the decision taken by the Panchayat has no force in the law and in support of his contention, Counsel for the State has relied upon the judgment passed by the Supreme Court in the case of Yamanaji H. Jadhav Vs. Nirmala reported in AIR 2002 SC 971.

In reply, it is submitted by the counsel for the petitioner that a Division Bench of this Court in the case of Ranjit Singh Vs. Sugan Bai reported in 2014 (IV) MPJR 176 has held that since as per the customary law, the divorce can be granted by the Panchayat, therefore, divorce granted by the Panchayat has a force of law.

Considered the submissions made by the counsel for the parties.

The case of the petitioner has been rejected by the respondents in the light of the Clause 2.4 of the Policy for compassionate appointment. A Full Bench of this Court in the case of Meenakshi Dubey (supra) has upheld the validity of Clause 2.4 for appointment on compassionate ground.

Clause 2.4 of the Policy reads as under:-

"2.4 दिवंगत शासकीय सेवक की संतान सिर्फ पुत्री/पुत्रियां हों और वह विवाहित हो तो दिवंगत शासकीय सेवक के आश्रित पति/पत्नी द्वारा नामांकित विवाहित पुत्री।

यह स्पष्ट किया जाता है कि मृतक शासकीय सेवक के आश्रित पति/पत्नी जीवित होने पर ही विवाहित पुत्री को अनुकंपा नियुक्ति की पात्रता होगी। (ऐसी अनुकंपा नियुक्ति पाने वाली पुत्री को शासकीय सेवक के आश्रित पति/पत्नी के पालन-पोषण की जिम्मेदारी का शपथ पत्र देना होगा।)"

In view of the explanation appended to Clause 2.4, it is clear that this clause would apply only when the deceased government employee is succeeded by his or her spouse as well as children. In the present case, admittedly, the father of the petitioner had already expired and mother of the petitioner was succeeded by the petitioner only. Thus, it is clear that mother of the petitioner was not having any living spouse at the time of her death, therefore, as per the provision of Clause 2.4 of the Policy, the petitioner is not entitled for appointment on compassionate ground.

So far as the Clause 2.2 of the Policy for appointment on compassionate ground is concerned, it reads as under:-

"2.2 मृतक शासकीय सेवक के आश्रित पति/पत्नी द्वारा योग्यता न रखने अथवा स्वयं अनुकंपा नियुक्ति न लेना चाहे तो उसके द्वारा नामांकित पुत्र या अविवाहित पुत्री।"

From the plain reading of the said Clause, it is clear that it is in two parts, which are as under:-

(i) the living spouse of the deceased employee should be either unqualified or should not be interested in taking compassionate appointment.

(ii) only thereafter upon nomination, the son or daughter of the deceased employee can be granted appointment on compassionate ground.

Since the father of the petitioner has already expired prior to death of mother of the petitioner, therefore, first condition of Clause 2.2 is not satisfied.

Accordingly, this Court is of the considered opinion that the case of the petitioner is not covered under Clause 2.2 of the Policy as well as 2.4 of the Policy for compassionate ground.

It is next contended by the counsel for the petitioner that as per Clause 2.3 of the Policy, a divorcee daughter of the deceased employee is also entitled for appointment on compassionate ground.

Clause 2.3 of the Policy reads as under:-

"2.3 ऐसी विधवा अथवा तलाकशुदा पुत्री, जो दिवंगत शासकीय सेवक की मृत्यु के समय उस पर पूर्णतः आश्रित होकर उसके साथ रह रही हो अथवा उपरोक्त पात्र सदस्य न होने की स्थिति में विधवा पुत्रवधु जो शासकीय सेवक की मृत्यु के समय उस पर पूर्णतः आश्रित होकर उनके साथ रह रही हो।"

In order to substantiate the submission that the petitioner was granted divorce as per the customary practice, the petitioner has relied upon the decision taken by the Gram Panchayat, Raun District Bhind on 09.06.2013. Whether there was a custom prevailing in the Society or not is a disputed question of fact. The Supreme Court in the case of Bhimashya v. Janabi, reported in (2006) 13 SCC 627 has held as under :

Custom must be ancient, certain and reasonable as is generally said. It will be noticed that in the definition in Clause (a) of Section 3 of the Act, the expression "ancient" is not used, but what is intended is observance of custom or usage for a long time. The English rule that a "custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary" has not been strictly applied to Indian conditions. All that is necessary to prove is that the custom or usage has been acted upon in practice for such a long period and with such invariability and continuity as to show that it has by common consent been submitted to as the established governing rule in any local area, tribe, community, group or family. Certainty and reasonableness are indispensable elements of the rule. For determination of the question whether there is a valid custom or not, it has been emphasised that it must not be opposed to public policy.

The Supreme Court in the case of Yamanaji H. Jadhav Vs. Nirmala reported in AIR 2002 SC 971 has held as under:

2........As per the Hindu Law administered by Courts in India divorce was not recognised as a means to put an end to marriage, which was always considered to be a sacrament, with only exception where it is recognised by custom. Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law. Thus such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such custom since said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy..........

Thus, it is clear that whether there was any custom in the Society or not is a disputed question of fact which cannot be decided by this Court while entertaining this petition under Article 226 of the Constitution of India, therefore, the petitioner is granted liberty to seek declaration from the Court of competent jurisdiction with regard to the validity of the decision taken by the Gram Panchayat Raun District Bhind on 09.06.2013. If a decree is passed in favour of the petitioner that the divorce was validly granted by Gram Panchayat Raun District Bhind, then she will be at liberty to file a fresh application for consideration of her case under Clause 2.3 of the Policy.

With the aforesaid liberty, this petition is finally disposed of.