1. Heard Sri Arun Kumar Verma, learned counsel for the petitioner and Sri Pankaj Srivastava, learned Additional Chief Standing Counsel for opposite Party No. 1 to 5.
2. This writ petition has been filed for the following reliefs:
i) Issue a writ, order or direction in the nature of ''Mandamus' commanding the opposite party No.4 to consider and take appropriate decision for compassionate appointment of petitioner under Dying in Harness due to the death of father of petitioner, in accordance with the provisions of U.P. Recruitment of Dependents of Government Servants (Dying in Harness) Rules 1974 after taking into consideration the law laid down by this Hon'ble Court in the case of Smt. Vimla Srivastava Vs. State of U.P. and another reported in 2016 (1) ADJ 21.
ii) Issue any other order or direction, which this Hon'ble Court deems fit and proper in the circumstances of the case in favour of the petitioner in the interest of justice.
iii) Award the cost of the writ petition in the favour of the petitioner."
3. Learned counsel for the petitioner submits that the petitioner's father, Sri Indrapal Yadav, who was working on the regular post of Senior Assistant at Kishan Higher Secondary School, Ismailpur, Barabanki died on 25.07.2020 during his service period. The petitioner, who is the married daughter of Late Indrapal Yadav applied for her appointment on compassionate ground. The petitioner's mother, Smt Kanti Devi (widow of Late Indrapal Yadav) had also given her no objection in favour of the petitioner. The Principal of Kishan Higher Secondary School, Ismailpur, Barabanki forwarded the petitioner's application after completing all the formalities, for the petitioner's compassionate appointment to the post of Class-IV, to the District Inspector of Schools, Barabanki on 18.01.2020. The District Inspector of Schools, vide a letter dated 22.03.2021 (Annexure 3 to the writ petition) wrote to the Principal, Kishan Higher Secondary School, Ismailpur, Barabanki that the married daughter cannot be given appointment on compassionate ground, as there was no such Government Order.
4. Learned counsel for the petitioner submits that the petitioner being the married daughter of Late Indrapal Yadav, is entitled for consideration for appointment on compassionate ground. In support of his contention, he has placed reliance on the judgments of this court in the cases of Smt. Vimla Srivastava Vs. State of U.P. and another reported in 2016 (1) ADJ 21; Neha Srivastava Vs. State of U.P. passed in Special Appeal Defective No. 863 of 2015 as also in Manjul Srivastava Vs. State of U.P. and others passed in Writ-A No. 10928 of 2020.
5. Sri Pankaj Srivastava, learned Additional Chief Standing Counsel submits that the petitioner's case would not be governed by the U.P. Recruitment of Dependents of Government Servants (Dying in Harness) Rules, 1974 (in short, ''Rules, 1974'), but by the U.P. Intermediate Education Act, 1921 (''in short, ''Act, 1921')under which specific provision, Regulations 103 and 107 in Chapter III, has been made with respect to appointment on compassionate ground, under which married daughter is not covered for compassionate appointment.
6. I have considered the submissions advanced by the learned counsel for the parties and perused the material on record.
7. In the case of Smt. Vimla Srivastava (supra), the Division Bench of this court held that the exclusion of married daughters from the ambit of the expression "family" in Rule 2 (c) of the Rules, 1974 is illegal and un-constitutional being violative of Articles 14 and 15 of the Constitution of India. The word "married daughter" in Rule 2 (c) (iii) of the Rules,1974 was struck down, holding that the married daughter cannot be excluded from consideration only on the ground of her marital status. In the case of Manjul Srivastava (supra) also it was held that a daughter, irrespective to her married status is to be regarded as the member of the Government Servant family in the same manner as a son, whether married or un-married, under Rule 2 (c) (iii) of the Rules, 1974.
8. The aforesaid judgments relate to the definition of ''family' under Rule 2 (c) of the Rules, 1974, which applies to the Dependents of the Government Servant Dying-in-Harness.
9. The petitioner's father was a Senior Assistant in Kishan Higher Secondary School, Ismailpur, Barabanki. Learned counsel for the petitioner, on a querry made to him, stated that the Kishan Higher Secondary School, is a recognized Intermediate College and is receiving grant-in-aid from the State Government, to which the provisions of the Intermediate Education Act applies.
10. It is, therefore, appropriate to refer Regulations 103, 104, 105, 106 and 107 in Chapter III, of the Regulations under Section 16-G of the Intermediate Education Act, 1921, which read as under:-
"103. bl fofu;ekoyh esa nh xbZ fdlh ckr ds gksrs gq, Hkh tgkWa fdlh ekU;rk izkIr] lgk;rk izkIr laLFkk dk v/;kid ;k f'k{k.ksRrj deZpkjh oxZ ds fdlh deZpkjh dh] tks fofgr izfdz;k ds vuqlkj fu;qDr fd;k x;k gks] lsok dky esa e`R;q gks tk;s] rks mlds dqVqEc ds ,d lnL; dks] tks 18 o"kZ ls de vk;q dk u gks] izf'kf{kr Lukrd dh Js.kh esa v/;kid ds in :i es ;k fdlh f'k{k.ksRrj in ij] ;fn og in ds fy;s fofgr visf{kr ''kSf{kd izf'k{k.k vgZrk;s] ;fn dksbZ gksa] j[krk gks vkSj fu;qfDr ds fy;s vU;Fkk mi;qDr gks] fu;qDr fd;k tk ldrk gS% Li"Vhdj.k& bl fofu;e ds iz;kstukFkZ ^dqVqEc dk lnL;^ dk rkRi;Z e`r deZpkjh dh fo/[email protected]/kqj] iq= vfookfgr ;k fo/kok iq=h ls gksxkA fVIi.kh& ;g fofu;e vkSj fofu;e 104 ls 107 rd mu e`r deZpkfj;ksa ds laca/k esa ykxw gksaxs ftudh e`R;q 1 tuojh] 1981 dks ;k mlds i'pkr gqbZ gksA 104- fdlh ekU;rk izkIr] lgk;rk izkIr laLFkk dk izcU/krU= e`R;q gkssus ds fnukad ls lkr fnu ds Hkhrj fujh{kd dks e`r deZpkjh ds dqVqEc ds lnL;ksa dh ,d fjiksVZ izLrqr djsxk ftlesa e`r deZpkjh dk uke] /k`r in] osrueku] fu;qfDr dk fnukad] e`R;q dk fnukad] fu;kstd laLFkk dk uke vksj mlds dqVqEc ds lnL;ksa ds uke] mudh ''kSf{kd izf'k{k.k vgZrk,a ;fn dksbZ gksa] vkSj vk;q dk fooj.k Hkh fn;k tk,xkA fujh{kd vius }kjk j[ks tkus okys jftLVj esa e`rd dh fof'kf"V;kWa ntZ djsxkA 105- fofu;e 103 esa fufnZ"V e`r deZpkjh ds dqVqEc dk dksbZ lnL; lEcfU/kr fujh{kd dks ;FkkfLFkfr] izf'kf{kr Lukrd Js.kh esa v/;kid ;k f'k{k.ksRrj loxZ ds fdlh in ij fu;qfDr ds fy, vkosnu djsxkA vkosnu i= ij lfefr }kjk fopkj fd;k tk;sxk vkSj ;fn lfefr mldh fu;qfDr dh laLrqfr djs] rks fujh{kd ekU;rk izkIr] lgk;rk izkIr ml laLFkk ds] ftlesa vkosnd dks fu;qDr fd;k tkuk gS] izcU/krU= dks vkosnu&i= fofu;e 106 vkSj 107 ds vuqlkj fu;qfDr vkns'k djus ds fy, HkstsxkA lfefr esa fuEufyf[kr gksaxs& 1- fujh{kd v/;{k 2- ftyk fo|ky; fujh{kd ds dk;kZy; esa ys[kkf/kdkjh lnL;
3- ftyk csfld f'k{kk vf/kdkjh lnL;
106- e`r deZpkjh ds dqVqEc ds lnL; dh fu;qfDr mldh ''kSf{kd vgZrkvksa ds vuqlkj izf'kf{kr Lukrd Js.kh esa ;k fdlh f'k{ks.kRrj in ij ;FkklEHko mlh laLFkk esa dh tk;sxh tgkWa e`r deZpkjh viuh e`R;q ds le; lsokjr FkkA ;fn ,slh laLFkk esa izf'kf{kr Lukrd Js.kh esa fdlh v/;kid ;k f'k{k.ksRrj laoxZ esa dksbZ in fjDr u gks rks mldh fu;qfDr ftys dh fdlh vU; ekU;rk izkIr] lgk;rk izkIr laLFkk esa tgkWa ,slh fjfDr gks dh tk;sxh& izfrcU/k ;g gS fd ;fn ftys dh fdlh ekU;rk izkIr] lgk;rk izkIr laLFkk esa dksbZ fjfDr rRle; fo|eku u gks rks ml laLFkk esa tgkWa e`rd viuh e`R;q ds le; lsokjr Fkk] fu;qfDr izf'kf{kr Lukrd Js.kh ds v/;kid ds ;k prqFkZ Js.kh ds f'k{ks.kRrj in ds izfr fdlh vf/kla[; in ds izfr rqjUr dh tk,xhA ,sls vf/kla[; in dks bl iz;kstu ds fy, l`ftr fd;k x;k le>k tk,xk vkSj mls rc rd tkjh j[kk tk;sxk tcrd dksbZ fjfDr ml laLFkk esa ;k ftys dh fdlh vU; ekU;rk izkIr] lgk;rk izkIr laLFkk esa miyC/k u gks tk;s vkSj ,slh fLFkfr esa vf/kla[; in ds in/kkjh }kjk dh x;h lsok dh x.kuk osru fu/kkZj.k vkSj lsok fuo`fRr ykHkksa ds fy, dh tk;sxhA rkRi;Z 107- ml ekU;rk izkIr] lgk;rk izkIr laLFkk ds izcU/krU= }kjk] ftldks fofu;e 105 ds v/khu fujh{kd }kjk vkosnu&i= Hkstk x;k ;k vkosnu&i= dks izkfIr ds fnukad ls ,d ekg dh vof/k ds Hkhrj fujh{kd dks lwpuk nsrs gq, fu;qDr i= tkjh fd;k tk;sxkA"
11. It is evident from Regulation 103 as quoted above that it provides for appointment on compassionate ground to one ''member of the family' of the deceased teacher and non-teaching staff, who fulfills the requisite qualifications. "Member of the family" as per the "explanation" given in Regulation 103, means widow/widower, son, unmarried or divorced daughter of the deceased employee. On a plain reading of Regulation 103, ''married daughter' is not covered under the expression "member of the family".
12. The expression "member of family" in Regulation 103, uses the word ^rkRi;Z^. In legal Glossary, 4th Edition 1988, published by the Central Government, Department of Law and Justice, fo/kk;h foHkkx] jktHkk"kk [kaM ] the English meaning of ^rkRi;Z^ is, i) purport; ii) tenor. The meaning of "purport", in the same Legal Glossary, is "to mean; to have its purport; to profess or claim by its tenor", and the meaning of "Tenor" in the same Legal Glossary is "apparent".
13. In Stroud's Judicial Dictionary Fifth Edition by John S. James, one of the meanings of the word "tenor" is to recite verbatim i.e. exactly as it is spoken or written. It is reproduced as under:-
"1) .......
2) In libel the law attaches a technical meaning to the word "tenor", as signifying either an exact copy, or a statement of the libel verbatim. " Tenor' has so strict and technical a meaning as to make it necessary to recite verbatim" (R. v. May 1 Doug.194); but the expression "MANNER AND FORM" means nothing more than a substantial recital (Wright v. Clements 3 B. & Ald. 503). "There is a distinction to be observed between the legal terms ''tenor' and ''form,' and the setting out of an instrument ''according to the tenor' or ''according to the form.' ''Tenor' has a stricter sense than ''form.' In the former case, an instrument must be set out in hoec verba, but where a form is to be pursued the same strictness is not required" (per Crampton J., Mount-Cashell v. O'Neill 2 Ir. Com. Law Rep.454). In the same strict way "tenor" is construed in America (Commonwealth v. Stevens 1 Mass. 203; Commonwealth vs. Wright 1 Cush. 46; People v. Warner 5 Wend. 273).
14. The word ''purport' has one of its meaning as apparent, what appears on the face of it. In Azimunnissa and others Vs. The Deputy Custodian, Evacuee Properties, District Deoria and others AIR 1961 S.C. 365, the Hon'ble Supreme Court has held that the word ''purport' has many shades of meaning. It means fictitious, what appears on the face of the instrument; the apparent and not the legal import and therefore any act which purports to be done in exercise of a power is to be deemed to be done within that power notwithstanding that the power is not exercisable. Purporting is therefore indicative of what appears on the face of it or is apparent even though in law it may not be so."
15. In view of the aforesaid meaning, the English meaning of ^rkRi;Z^ is "to mean", and the use of this expression in "member of family" in Regulation 103 makes only those persons member of family, which are "apparent". Those who are included are apparent and those who are not included are not apparent and cannot be the member of family in Regulation 103. Apparently, "married daughter" is not included. In P. Kasilingam Vs. P.S.G. College of Technology, AIR 1995 SC 1395 the Hon'ble Supreme Court has held that a particular expression is often defined by the Legislature by using the word 'means' or the word 'includes'. Sometimes the words 'means and includes' are used. The use of the word ''means' indicates that the "definition is a hard- and-fast definition. and no other meaning can be assigned to the expression that is put down in definition."
16. It is also appropriate to refer the Full Bench judgment of this Court in Km. Shehnaj Begum Vs. State of U.P. and others AIR 2014 Allahabad 66 (FB). The question referred to the Larger Bench was "Whether the definition of 'family' in rule 2 (c) of U. P. Recruitment of Dependants of Government Servant Dying-in-Harness Rules, 1974 is inclusive or exhaustive?"
The Hon'ble Full Bench answered that the definition of ''family' in rule 2 (c) of U. P. Recruitment of Dependants of Government Servant Dying-in-Harness Rules, 1974 is exhaustive, in spite of the fact that the word ''includes' was used in the rule. The Hon'ble Full Bench held that ''includes', was used in the sense of ''means' as by specifying the relatives in reference to family the intention appeared to be to make the definition exhaustive.
17. Paragraph Nos. 39 to 47 and 51 of Km. Shehnaj Begum (supra) read as under:
"39. In its ordinary and primary sense the word ''family' signifies the collective body of persons living in one house or under one head or manager or one domestic government. What constitutes a family in a given set of circumstances or in a particular society depends upon the habits and ideas of persons constituting that society and the religious and socio-religious customs of the community to which such persons may belong. Word ''family' has a different meaning under Hindu Law and Muslim Law. Family can be immediate family, expanded family and also blended family. Joint Hindu Family is a concept well recognized under Hindu Law whereas there is no such concept under Muslim Law. Word ''family' has been assigned different meaning under the different enactments depending upon the context. It has been defined differently under various Rent Acts, Land Ceiling Act and Land Reforms Act. The word has been subject matter of judicial interpretation in various pronouncements.
40. In Devki Nandan v. Murlidar , AIR 1957 SC 133 , it has been held that 'family ' in its popular sense means ' children '.
41. In Ram Chauvan v. Girija Nandini , AIR 1966 SC 323, it has been held that word 'family' does not mean only a group of persons who are recognized in law as having a right of succession or having a claim to a share in the property in dispute.
42. Patna High Court in the case of Aliv Kassan v. Torrab Hussain, AIR 1958 Pat 232 where the property was originally purchased by two sisters has held the expression 'family' includes a sister's son.
43. Under the Mussalman Waqf Validating Act, 1930, the term ''family' has been held to include both agnates and cognates and relations by blood or marriage. The nephews of the settler of Waqf were held to be the members of the family. In Ismail Haji v. Umar Abdullah , AIR 1942 Bombay 775, Md . Azam Khan v. Hamid Shah, AIR 1947 Allahabad 137, Rahmanul Hasan v. Zahurul Hasan , AIR 1947 All 281, the son of a half - brother or of a half- sister have been held to be included in the term ' family '.
44. According to Law Lexicon 'family' may include even domestic servants and some times persons who are merely boarders.
45. The term 'family' being capable of such wide and varying meaning and having been subject matter of such wide interpretation, the use of this word in 1974 Rules cannot be left to be assigned a meaning in its general terms or as it is understood in popular sense by different sections of society nor it can be left to be assigned a meaning as it is understood in different religions or according to socio-religious custom prevalent in different communities for that would lead to a chaotic situation . Thus, the word has to be interpreted in reference to the context it has been used keeping in view the object and purpose of the Rules balancing with the mandate of equality enshrined under Articles 14 and 16 of the Constitution.
46. It is well settled principle of interpretation of Statutes that a statutory provision should not be construed in a manner which would lead to manifest absurdity, futility, or anomaly or chaos . Reference may be made to the decision of Apex Court in H.S. Vankani v. State of Gujarat , ( 2010 ) 4 SCC 301 : AIR 2010 SC 1714"
47. By specifying the relations in reference to family the intention appears to be to make the definition exhaustive. If it had been the intention to bring within the ambit of word ''family ' all the relations, it was unnecessary to specify some of them. It seems to us that word " includes " has been used in the rules in the sense of " means " and according to us , this is the only construction, the word ''include' can bear in the context of the rules. If the intention of the legislature was not to make the list exhaustive, there was hardly any necessity to have described dependent relations of being included in the definition of family. It also does not appear to us that relations specified in the Rules have been described ex. abundanti cautela i. e. in abundant caution for the simple reason that in case the definition of word family was left to ones imagination without specifying the relations to which it intended to extent the benefit would have resulted into totally chaotic situation leaving it open to all and sundry who could even remotely demonstrate to be a member of the family, in view of the varied definition and interpretation of the word, to claim the benefit destroying the very purpose and object of the rules much less advancing the same.
51. Thus, our answer to the reference is that definition of the family in Rule 2 (c) of U. P. Recruitment of Dependants of Government Servant Dying-in-Harness Rules, 1974 is exhaustive."
18. ''Member of family' in Regulation 103 is therefore exhaustive of the list of members mentioned therein, as, had it been the intention of the Regulation making authority, to bring within the ''member of family' the ''married daughter', it would have been included in the like manner other relations have been specifically included. The relations which have not been included can not be read in to regulation 103, to expand the meaning of ''member of the family' as by specifying the relations in reference to family, the definition has been made exhaustive.
19. Regulation 103 of the Regulations as it stands, ''married daughter' is not entitled for appointment on compassionate ground.
20. Learned counsel for the petitioner submits that the "member of family" in Regulation 103, includes "unmarried daughter and widowed daughter", but it does not include "married daughter" in the like manner as the expression ''family' was defined under Rule 2 (c) (iii) of the Rules, 1974, and consequently, the benefit of the judgment of this Court in the cases of Smt. Vimla Srivastava (supra) and Manjul Srivastava (supra) deserves to be extended to the petitioner on the same reasoning and the ratio as laid down in those judgments by holding that the "married daughter" is also included in Regulation 103 of the Regulations in the definition of "member of family".
21. The submission of Shri Arun Kumar Verma, learned counsel for the petitioner that applying the ratio of the Division Bench judgment in Smt. Vimla Srivastava (supra), ''married daughter' may also be considered to be included in ''member of family' in Regulation 103 deserves no consideration in this writ petition, for the reason, that in Smt. Vimla Srivastava (supra) there was challenge to the vires of Rule 2(c) of the Rules, 1974. In the present case there is no challenge to the vires of Regulation 103 of the Regulations as regards definition of ''member of family'.
22. Further, this court finds that in Sunita Bhadauriya Vs. State of U.P. & others, (2006) 1 UPLBEC 754 (DB) Rule-2(c) of the Rules, 1974, was challenged on the ground of being ultra vires Articles 14 and 39(a) of the Constitution of India, as the definition of ''family' did not include ''married daughter'. Such challenge was negatived by the Division Bench of this Court. The judgment in Sunita Bhadauriya (supra) was not noticed by the coordinate Bench in Smt. Vimla Srivastava(supra), which took a contrary view.
23. Learned counsel for the petitioner prays that the petitioner may be granted liberty to file fresh writ petition with better particulars making appropriate prayers including the prayer to challenge the vires of Regulation 103 of the Regulations.
24. Liberty as prayed is granted, if so advised.
25. With the aforesaid, but in view of the liberty granted, this writ petition is disposed of finally.
Order Date :- 27.5.2021 Arvind