The main legal point established is that a 'divorced daughter' is entitled to compassionate appointment if she was dependent on the deceased employee and remains 'not married' at the time of appointment, as interpreted from the Rules of 1974.

JUDGMENT :

1. Smt. Shashi Mishra has preferred this special appeal challenging judgment dated 30.07.2015 rendered in Writ Petition No.4320 (SS) of 2015 titled Smt. Shashi Mishra v. State of U.P. and Others.

Vide the impugned judgment, the writ petition has been dismissed.

2. We have heard learned counsel for the appellant and Shri Rajeev Ratna Chaudhary, learned counsel for respondent/State.

3. The facts appear to be that Shri Bhagvati Prasad Tripathi while in government service died in harness on 08.09.2010. The appellant/writ petitioner filed an application for appointment on compassionate grounds under The U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (For short Rules of 1974).

It appears that the appellant/writ petitioner claimed a right to be given appointment on compassionate grounds under Rules of 1974 on the premise that she being daughter of Shri Bhagvati Prasad Tripathi, the deceased employee, was married, however was subsequently given divorce by virtue of judgment and decree dated 06.12.2014. In such circumstances, being the daughter of Shri Bhagvati Prasad Tripathi, she be considered for appointment on compassionate grounds.

4. Learned Single Judge while referring to definition of family from Rules of 1974 has held that the claim/case of the appellant/writ petitioner would not fall within the four corners of definition of family as provided under Rule 2(c) of the Rules of 1974. The appellant/writ petitioner would not be a family member of the deceased employee, being married daughter, though divorced.

5. Learned counsel for the appellant/writ petitioner has relied on judgment dated 03.01.2019 rendered in Special Appeal Defective No.673 of 2018 titled State of U.P. and Ors. v. Noopur Srivastava. It has been pleaded that the law in regard to right of a divorced daughter to be considered for appointment on compassionate grounds has been declared by a Division Bench of this Court in January, 2019, i.e. subsequent to passing of impugned judgment, hence the case of the petitioner be considered in that light. On the basis of the judgment it has been contended that even a divorced daughter would become dependent on the deceased employee and therefore, her claim is required to be considered for appointment on compassionate grounds under Rules of 1974.

6. We have carefully considered the contention and have gone through judgment dated 03.01.2019 (supra). The following (relevant portion) has been held in the judgment :-

x x x x x x x

"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 nor the expression "Unmarried" daughter has been clarified by putting the words to the effect that it means a "daughter never married" or "daughter not married" and being so the secondary meaning of term "Unmarried" cannot be ignored and is liable to be taken into account in the given circumstances in context of beneficial legislation i.e. Rules of 1974.

On the basis of aforesaid discussion in the context of Rules of 1974, we hold that the expression "divorced daughter" is included/implicit in the expression "Unmarried daughter". Accordingly we hold that a "divorced daughter" is entitled to compassionate appointment if she was dependant, on the date of death of her father/mother (the employee) and the marriage was dissolved legally either prior to or after the date of death of bread earner of the family and she remains "not married" at the time of appointment.

In addition, the judgment dated 04.07.2011 passed in Writ Petition No. 2707 (SS) of 2004 (Gudiya Awasthy v. State of U.P.) was challenged in the Special Appeal No. 19 of 2012 and this Court vide judgment dated 04.09.2018 has set aside the judgment dated 04.07.2011 and being so, no reliance can be placed on the judgment dated 04.07.2011 as the effect of setting aside a judgment in the eye of law is that, the judgment which has been set aside is not in existence and a jud