Basic Shiksha Adhikari, Hardoi vs Madhu Mishra and Others

C.K. Prasad, CJ.

Respondent No.3 appellant, aggrieved by the judgment and order dated 10.1.2008 passed by a learned Judge in Writ Petition No.131 (S/S) of 2008, has preferred this special appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952.

Shorn of unnecessary details, facts giving rise to the present appeal are that writ petitionerrespondent No.1 herein, hereinafter referred to as the ''writ petitioner'', is the widow of one of the sons of Sushila Devi, who was a ClassIV employee in Basic Shiksha Parishad. She died while in service on 31st of March 2005, leaving behind the writ petitioner, a married daughter and one unmarried daughter. Writ petitioner filed application dated 14th of April, 2005 seeking employment on compassionate ground and when no appointment was offered, she filed the writ petition, interalia, praying for a direction to appoint her on compassionate ground. Respondent No.3 appellant herein, resisted the claim on the ground that the writ petitioner, being the daughterinlaw, does not come within the definition of ''family'', hence she is not entitled to be appointed on compassionate ground. This contention was rejected by the learned Judge relying on an earlier Single Judge decision of this Court in the case of Sanyogita Rai (Smt.) v. State of Uttar Pradesh & Ors., (2006) 2 UPLBEC 1972. Relevant portion of the judgment of the learned Judge reads as follows:

�Learned counsel for the petitioner placed reliance upon a decision rendered by this Court, reported in (2006) 2 UPLBEC 1972, Sanyogita Rai (Smt.) v. State of Uttar Pradesh and others, wherein after considering the meaning of the word ''include'' as well as the word ''family'' this Court held that the daughterinlaw includes a ''family member'' and as such will be treated as a dependent. It was also observed that the word ''family'' under the provisions of the aforesaid Rules must be construed liberally in order to achieve the object, sought to be served by the rules.

In view of the proposition, laid down in the aforesaid decision, this Court is of the view that daughterinlaw is included within the meaning of word ''family'' defined under the said Rules the petitioner as such is entitled for appointment under the Rules.�

No issue at all was raised before the learned Judge as to the Rule which shall govern the appointment on compassionate ground and accordingly, the learned Judge proceeded to consider the claim of the writ petitioner with reference to the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the ''Rules 1974'') Rules 1974 have been made by the Governor in exercise of the power conferred by the proviso to Article 309 of the Constitution of India and applies to the Government servants. However, in this appeal, a contention has been raised that appointment on compassionate ground, so far as the employees of the Uttar Pradesh Basic Shiksha Parishad are concerned, shall be governed by the order dated 4th of September, 2000 issued by the State Government in exercise of the power conferred under Section 13 (1) of the Uttar Pradesh Basic Shiksha Adhiniyam, 1972 (hereinafter referred to as the ''Act''). Section 13(1) of Act enables the State Government to issue instruction and obliges the Board to carry out such instruction.

Paragraph 9 of the instruction dated 4th September, 2000 so issued reads as follows:

5.It is pinted out by Mr. Jyotinjay Verma that the instruction issued by the State Government under Section 13(1) of the Act, shall govern the field. Ms. Bulbul Godiyal appearing for respondents, however, submits that the Basic Shiksha Parishad having adopted Rules 1974, it shall prevail and the instruction issued shall give way to that. ''Family'' has been defined under Rule 2(c), which reads as under:

''2. Definitions In these rules, unless the contest otherwise requires

X X X

(c)�family� shall include the following relations of the deceased Government servant;

(i) wife or husband;

(ii) sons;

(iii) unmarried and widowed daughters;

(iv) if the deceased was unmarried Government servant, brother, unmarried sister and widowed mother dependant on the deceased Government servant.�

In our opinion, nothing will turn on this issue so far as the result of the case is concerned as, in our opinion, there is not much difference between the Rules 1974 and instruction issued. The instruction in question has been issued in exercise of the power under Section 13(1) of the Act, and the provision under which it has been issued obliges the Board to carry out such direction. In view of the aforesaid, while considering the definition of ''family'', the Board is bound by the instruction and claim for appointment on compassionate ground shall be governed by the instruction. However, as observed earlier, it shall have not much bearing.

Mr. Verma contends that daughterinlaw does not come within the definition of ''family'' and, hence, not entitled to be appointed on compassionate ground. Ms. Godiyal, however, contends that daughterinlaw is included in the definition of ''family''.

In view of the rival submissions, the question, which arsies for determination is as to whether daughterinlaw shall come within the definition of ''family'' for the purpose of appointment on compassionate ground.

She submits that the relations, which have been mentioned, are illustrative in nature. She points out that, being a beneficial provision, a broad meaning should be given to the expression. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of Madan Singh Shekhawat v. Union fo India & Ors., (1999) 6 SCC 459 and our attention has been drawn to paragraphs 14 and 15 of the judgment, which read as follows:

�14. If the expression �at public expense� is to be construed literally then under the rules referred to above, an army personnel incurring a disability during his travel at his own expense will not be entitled to the benefit of Rule 6(c) (supra). The object of the rule, as we see, is to provide relief to a victim of accident during the travel. If that be so, the nature of expenditure incurred for the purpose of such travel is wholly alien to the object of the rule.

It is the duty of the court to interpret a provision, especially a beneficial provision, liberally so as to give it a wider meaning rather than a restrictive meaning which would negate the very object of the rule.�

Having appreciated the rival submission, there is no difficulty in accepting the broad submission of Ms. Godiyal that the provision being beneficial, it should be given a liberal construction. But will this mean giving such construction which is out of context having no nexus with the main definition? Daughterinlaw has not been mentioned either in the Rules 1974 or the instruction. True it is that when a defect appears in a government order or for that matter any legislation, a Judge cannot fold his hands and blame the author but must sit to work on a constructive task of finding the intention of the authority and supplement the word so as to achieve the intention of the Scheme. In such circumstances, law permits ironing out the creases also. In the present case, the compassionate appointment is provided to the dependants of the deceased employee which according to the instruction means son, unmarried or widow daughter, wife or the husband, as the case may be and includes those relations under Rules 1974 but none provides for appointment on compassionate ground to the daughterinlaw. The Scheme providing for compassionate appointment having provided that the dependant of the deceased employee shall mean or include son, unmarried or widow daughter, wife or husband, it would amount to adding the daughterinlaw in the category of dependants of the deceased employee. It is well settled that compassionate appointment is not a constitutional right and one is entitled for the same only in accordance with the Scheme framed in this regard. In our opinion, inclusion of daughterinlaw in the Scheme of compassionate appointment would enlarge the Scheme of the Act, which is not permissible in law.

Ms. Godiyal points out that the issue whether the daughterinlaw would come within the definition aforesaid, came up for consideration before a learned Single Judge of this Court in the case of Smt. Urmila Devi v. U.P. Power Corporation & Ors., 2003 (4) AWC 3205, in which it has been categorically held that daughterinlaw would come within the definition of the word ''family'' aforesaid. Relevant portion of the judgment of the learned Judge reads as follows:

�9. As a result of foregoing discussion, I am of the considered view that the word ''family'' in the provisions must be construed liberally having due regard to the inclusive definition of the term ''family'' as defined in and object sought to be served by the rules. The petitioner in the instant case being heir of the predeceased son and being dependent for sustenance on the deceased employee Kishun Lal, is entitled to be construed as one of the family members of the deceased in view of the inclusive definition of the word ''family'' and is thus entitled to be considered for appointment under DyinginHarness Rules, 1975 aforestated.�

Another learned Judge of this Court had also the occasion to consider the aforesaid question in the case of Sanyogita Rai (Smt.) v. State of Uttar Pradesh & Ors., (2006) 2 UPLBEC 1972 and held that daughter in law shall come within the definition of the term ''family''. Relevant portion of the judgment reads as follows:

�10. As a result of foregoing discussions, I am of the considered view that word ''family'' in the provisions must be construed liberally having due regard to the inclusive definition of the term ''family'' as defined in and object sought to be served by the rules. The petitioner in the instant case being the daughterinlaw of the deceased and admittedly, the husband of the petitioner has been murdered and is no more, therefore, in my opinion the petitioner is entitled to be construed as one of the family members of the deceased in view of the inclusive definition of the word ''family'' and is thus entitled to be considered for appointment under the DyinginHarness Rules, 1974.�

Ms. Godiyal points out that when the grandson of a deceased employee has been held to come within the definition of ''family'' by a Division Bench of this Court in the case of State of U.P. & Ors. v. Rajendra Kumar & Ors., 1999 (83) FLR 523, there is no justification to hold that daughterinlaw shall not come in its definition. Relevant portion of the judgment reads as follows:

�12. In the present case the respondent was the dependant of his grandfather who died in harness. In our opinion, therefore, the learned Single Judge has rightly held that the respondent is entitled to the benefit of the Dying in Harness Rules. The said Rules are a piece of beneficial legislation and have to be liberally construed.�

�Hard case makes bad law� is a concept well known in Courts of Law. In the cases of Urmila Devi (supra) and Sanyogita Rai (supra), much emphasis has been laid on the word ''includes'' in the definition of ''family''. It is true that inclusive definition is often used in the interpretation clauses in order to enlarge the meaning of the word but the said principle does not contemplate inclusion of such persons which has no nexus with the description of the relations mentioned in the Rules. Rule 2(c) of the Rules 1974 does include ''widowed daughter'' but does not include daughterinlaw. The Rulemaking Authority having not included ''widowed daughterinlaw, it would mean adding something in the Rule which the Rulemaking Authority did not intend to include. In our opinion, enlarging the meaning of the word would mean adding words, which is not permissible.

In our opinion, the decisions of the learned Single Judge in the cases of Urmila Devi (supra) and Sanyogita Rai (supra), are not in conformity with the well settled principles of law. Those decisions ignore the basic principle that while construing the provision liberally, the word, which has no nexus and out of context, cannot be added. Accordingly, we are constrained to overrule the decisions of the learned Single Judge of this Court in the cases of Urmila Devi (supra) and Sanyogita Rai (supra).

Ms. Godiyal is right when she submits that the view of the learned Single Judge is in conformity with the earlier decision of this Court in the case of Urmila Devi (supra) and Sanyogita Rai (supra), but as we have held that the aforesaid decisions do not lay down the correct law, it is difficult for us to sustain the impugned judgment and order.

In order to put the record straight, it is relevant here to state that the Division Bench judgment of this Court in the case of Rajendra Kumar (supra) concerned the grandson of the deceased employee and therefore, it has no bearing so far as the decision in this appeal is concerned.

In the result, this special appeal deserves to be allowed and is accordingly allowed. The impugned judgment and order dated 10.1.2008 passed by the learned Judge in Writ Petition No.131 (S/S) of 2008 is set aside but without any order as to costs.

(Appeal allowed)