Madarsa Arbiya Ahlesunnat Bahrul Oloom, Mohalla Ansar Tola, Khaleelabad, Sant Kabir Nagar1 is a recognised and aided institution that is in receipt of grant-in-aid from the State Government. Salaries to its teachers and employees are borne on the State exchequer. The petitioner's father, Abdul Wahab, was an Assistant Teacher in the Primary Section of the Institution. The Primary Section of the Institution is referred to as Tahtaniya. He died in harness on 30.07.2014, as the petitioner asserts. There is some dispute about the fact whether he died in harness on 30.07.2014 or out of harness, but this Court need not go into that question, considering the short point on which we propose to decide this petition. The petitioner claims that he is qualified to be appointed on compassionate basis, as his father died in harness. To claim the said right, the petitioner moved an application to the Registrar/Nirikshak, U.P. Madarsa Shiksha Parishad, Lucknow on 11.03.2019, with a request that he may be appointed on the post of Assistant Teacher on compassionate grounds. The petitioner appears to have been permitted to teach in the Institution by the Management, but in the absence of financial approval, he is not being paid his salary from the State exchequer. The petitioner claims right to be appointed on compassionate basis, relying on Rule 10(2) of the U.P. Ashasakiya Arabi aur Farsi Madarsa Manyata aur Prashashan aur Sewa Vinimayawali, 20162. The aforesaid Rules have been framed under Section 24 of U.P. Board of Madarsa Education Act, 2004. The Rules of 2016 are, no doubt, statutory in character and have come into force w.e.f. 22.07.2016, when these were notified in the official gazette.
2. The moot point for consideration in this petition is :
Whether the fact that the petitioner's father, who was a teacher in the Institution and died before the enforcement of Rules of 2016, would confer upon the petitioner a right to be considered for compassionate appointment under the aforesaid Rules?
3. Mr. Sajjad Husain, learned Counsel for the petitioner, submits that the Rules of 2016 are retrospective in operation, in the sense that where an employee, whose dependent seeks benefit of compassionate appointment, has died before the enforcement of the said Rules, the right under the Rules of 2016 would be available to him, provided he applies within five years of the death of the deceased employee. In support of his contention, Mr. Husain has placed reliance upon a decision of this Court in Mohd. Ayza Ahmad v. State of U.P. and Others3. In Mohd. Ayza Ahmad (supra) it has been held:
6. The said Regulation 10(2) provides that an application on death of employees can be made by its dependent within a period of five years of death. There is nothing in the said Regulations which positively provides that appointment shall be given only to the dependents of employees who expired after 22.7.2016 i.e. coming into force of these Regulations. Thus, the Regulations can be interpreted as providing that only persons who expired after coming into the force of the Regulation can apply for appointment under the said Regulation and the same can also be interpreted as providing that those persons, whose parents expired prior to coming into force of the said Regulations and their dependents are now applying within a period of five years from the death, would also be entitled to appointment under the Dying in Harness Rules.
7. Admittedly, these Regulations, providing for ''Dying in Harness' appointments, are without question a beneficial legislation. Such a legislation ought to be interpreted to give benefit to larger number of society. The later interpretation would fulfill the objective of the Regulations in a wider sense and would result in benefit to more people facing challenge, which is attempted to be addressed by these Regulations. A reference may be made to case of Workman v. Firestone and Tyre and Rubber Company, (1973) 1 SCC 811. Paragraph 35 of the said judgment reads :
" It is well-settled that in constructing the provisions of a welfare legislation, Courts should adopt, what is described as a beneficent rule of construction. If two constructions are reasonably possible to be placed on the section, it follows that the construction which furthers the policy and object the Act and is more beneficial to the employees, has to be preferred. Another principle to be borne in mind is that the Act in question which intends to improve and safeguard the service conditions of an employee, demands an interpretation liberal sight of another canon of interpretation that a statute or for the matter of that and without doing violence to the language under by the legislature."
4. It is on the foot of the aforesaid authority that learned Counsel for the petitioner buttresses his submissions, asking us to give retrospective effect to the Rules of 2016, extending the benefit of compassionate appointment to the dependent of a person who passed away before coming into force of the Rules of 2016. Much like the principle laid down in Mohd. Ayza Ahmad, learned Counsel for the petitioner submits that the Rules of 2016 are beneficial in nature and ought to be construed liberally in favour of the subject. He submits that it is well settled that a beneficial legislation or a beneficial provision in a legislation or a statutory rule ought to be construed liberally in favour of the subject, so as to take care of the mischief that is sought to be remedied by the statutory rule or the statute. Here, he says that the mischief is prevention of destitution or the plunging of a family into sudden economic crisis, on account of death of the breadwinner. He says that if the breadwinner is lost, the family faces an insurmountable economic crisis, and the Rules of 2016 have been brought in to remedy the rigours of the loss. He submits that even if the Rules of 2016 have not been expressed to be retrospective in operation, they ought to be extended to a person who dies in harness before enforcement of the Rules and his dependent applies within five years of death, as envisaged under Rule 10(2) of the Rules last mentioned.
5. Mr. Afzal Ahmad Siddiqui, learned Counsel appearing on behalf of respondent no. 3, on the other hand, says in voice one with Mr. Ved Prakash Verma, the learned Standing Counsel appearing on behalf of respondent nos. 1, 2 and 4, that the Rules of 2016 are not retrospective in operation. The benefit of the Rules of 2016 cannot be available to the dependent of a teacher of a madarsa, who has died before these Rules came into force. He submits that it is not the purport of even a beneficial legislation that it would be read as retrospective, when it does not clearly express itself to be retrospective in nature.
6. I have considered the provisions of Rules of 2016, particularly Rule 10(2) and the allied provisions. Admittedly, before the Rules of 2016 came into force, an employee of a madarsa dying in harness did not pass on a right to be considered for compassionate appointment to his dependents. The right was created for the first time under the Rules of 2016. It did not exist earlier. The right created by Rule 10 of the Rules of 2016 is a substantive right. The accepted principle of statutory interpretation is that all substantive laws are deemed to be prospective in operation, unless expressly made retrospective. The reverse position obtains in the case of procedural laws, which are presumed to be retrospective, unless expressed to be prospective. The Rules of 2016 are clearly a piece of substantive law and create a substantive right and a corresponding obligation for the first time upon their enforcement. In this connection, reference may be made to this difference about prospective and retrospective operation of Statutes upon the consideration whether they are laws affecting substantive rights or merely amending a procedural provision as enunciated in Principles of Statutory Interpretation (13th Edition) by Justice G.P. Singh. The learned Author explains the principles about laws affecting substantive rights at Page Nos. 532 - 533 (for authority supporting comments of the learned Author refer to Foot Note Nos. 49 to 54 at Page Nos. 532 -533) as follows :
"(ii) Statutes dealing with substantive rights. - It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is "deemed to be prospective only ''nova constitutio futuris formam imponere debet non praeteritis' [2 c. Int. 392]" In the words of LORD BLANESBURG, "provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment." "Every statute, it has been said", observed LOPES, L.J., "which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect"."
7. By contrast, about the operation of procedural laws or procedural provisions in a Statute, the learned Author says at Page Nos. 536 - 537 (for authority supporting comments of the learned Author refer to Foot Note Nos. 49 to 54 at pages 536 -537) as follows :
"(iii) Statutes dealing with procedure.--In contrast to statutes dealing with substantive rights, statutes dealing with merely matters of procedure are presumed to be retrospective unless such a construction is textually inadmissible. As stated by LORD DENNING: "The rule that an Act of Parliament is not to be given retrospective effect applies only to statutes which affect vested rights. It does not apply to statutes which only alter the form of procedure or the admissibility of evidence, or the effect which the courts give to evidence". If the new Act affects matters of procedure only, then, prima facie, "it applies to all actions pending as well as future." In stating the principle that "a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective", the Supreme Court has quoted with approval the reason of the rule as expressed in MAXWELL: "No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode"."
8. Therefore, in our opinion, to apply these Rules retrospectively by falling back upon the rule in Heydon's case4 or the mischief rule, might not be the right interpretation. The mischief that a statute seeks to curtail, no doubt, ought to be curtailed, giving fullest play to the remedial statute and should certainly be construed in favour of the subject or in a manner that the mischief that is sought to be remedied is taken care of. This, however, does not mean that a right that was not in existence on the date when the rights opened in terms of the event ought to be read under a law that was not in existence. The rights here, if any, opened out in favour of the petitioner, when his father died. His father died much before the Rules of 2016 came into force. Therefore, to say that the petitioner would have a right of compassionate appointment, if he applied within five years of his father's death under Rule 10(2) of the Rules of 2016, would be utter misconstruction of the provisions of Rule 10(2) of the Rules of 2016. In this regard, reference may be made to the decision of a Division Bench of this Court sitting at Allahabad, in Special Appeal No. 264 of 2017, Abdul Qadir v. State of U.P. and 4 others decided on 09.05.2017. In the aforesaid case before their Lordships of the Division Bench, precisely the same question as the one that falls for consideration here, was involved. The question was whether the Rules of 2016 would be retrospective in operation in the sense that a teacher or other employee of a madarsa, who died in harness prior to enforcement of Rules of 2016, would pass on the right of compassionate appointment to his dependents. In that context, it was held in Abdul Qadir (supra) :
Accepted position in the present case is that father of petitioner-appellant has died in the year 2012, and at the said point of time, when father of petitioner-appellant has died, there was no provision under which compassionate appointment could have been provided to the dependent of the deceased incumbent who have been serving in Government aided Madarsa. Service conditions at the said point of time was governed by non-statutory rule known as 'Uttar Pradesh Ashaskeeya Arbi Tatha Fasi Madarson Ki Manata Niyamawali, 1987. On the date of death of petitioner-appellant's father, there was no provision in existence for offering appointment, is clearly indicative of the fact that the terms and condition of service that has been prevailing on the said date, there has been no provision for providing compassionate appointment, in case incumbent had died in harness.
Rules in question namely, Uttar Pradesh Non-Governmental Arbic and Persian Madarsa Recognition, Administration and Services Regulation, 2016 has been enforced w.e.f. 22.07.2016 wherein categorical mention has been made that it shall came into force from the date of notification in the gazette. Part-III of aforementioned Regulations deals with teaching and non-teaching employees, and in the said chapter while considering the terms and condition of teaching and non-teaching employees, provision has been incorporated for providing compassionate appointment to one of the dependent on death of an employee during service. One dependent has to apply within a period of five years in the Madarsa. Thus these statutory provisions are clear to the effect that for the first time while introducing the terms and condition of teaching and non-teaching employees, the aforementioned provisions has been introduced for providing compassionate appoint on death of employee in Madarsa during service period and dependent was free to move an application within a period of five years.
Consequently, under the scheme of things provided for, Regulations are clearly prospective in nature and effect and for the first time time provision has been incorporated for providing compassionate appointment on death of incumbent during service period to one of the dependent under the terms and condition of service, in this backdrop, claim that has been made to provide compassionate under the aforementioned regulation, certainty cannot be directed by us inasmuch as, we cannot proceed to enlarge the scope of aforementioned regulation, as on its face value, it is prospective in nature and would not include within its fold all such teaching and non teaching staff under whose condition of service, there has been no provision for providing compassionate appointment. Compassionate appointment has to be considered as per the scheme that has been in vague at the time of death of employee concerned. Apex Court in the case of Canara Bank Vs. Mahesh Kumar 2015(7) SCC 412, has further provided that compassionate appointment cannot be made in the absence of Rules and Regulations, and request has to be considered strictly in accordance with the governing scheme, and no discretion is left with any authority to make compassionate appointment dehors the scheme. Here the scheme in question introduced by way of Regulation for providing compassionate appointment w.e.f. 22.07.2016 in no way suggests that benefit of the same would be extended even in reference of those employees, teaching and non teaching, whose death has taken place, prior to enforcement of Regulation.
9. To like effect is the decision of this Court in Writ - A No. 721 of 2019, C/M, Madarsa Arabia Ahle Sunnat Madinatul Uloom, Sant Kabir Nagar, And Another v. State of U.P. & 3 others, decided on 09.04.2019, where, after an extensive review of the authority, it has been held :
27. In view of the facts as stated, it is clear that a person can not be given appointment on compassionate ground unless the Rules or the scheme provides for such appointment or their exists some vested rights in his favour. In the present case, from the facts as narrated above, it is clear that at the time of death of father of respondent No.4, there was no Rule or statutory provisions for appointment on compassion ground and as such no vested right accrued in favour of the respondent No.4 on the death of his father to get appointment on compassionate ground.
10. This Court must remark that the decision of the Division Bench in Abdul Qadir was not brought to the notice of the learned Single Judge in Mohd. Ayza Ahmad. Therefore, in our considered opinion, the decision in Mohd. Ayza Ahmad is per incuriam, as the Division Bench would be binding on a Judge sitting singly. The view expressed in Mohd. Ayza Ahmad runs contrary to the principle laid down by the Division Bench in Abdul Qadir. Mohd. Ayza Ahmad must, therefore, be held confined to the facts involved there.
11. In our view also, on a plain reading of the provisions of the Rules of 2016, no retrospective operation can be given to these Rules to benefit the heirs of a person who has died prior to the enforcement of these Rules.
12. In this view of the matter, this Court is of opinion that the petitioner is not entitled to any relief.
13. This petition fails and stands dismissed.
14. There shall be no order as to costs.
Order Date :- October the 23rd, 2021 I. Batabyal (J.J. Munir, J.) Note : Since my digital signature has expired and its renewal will take some time, the print out of the order has been taken and has been manually signed by us. This copy be uploaded with the stipulation that as and when the digital signature is renewed or a fresh digital signature is obtained, the digital signature copy be uploaded after deleting the scanned copy.