JUDGMENT R.B. Misra, J.
Heard Sri R. B. Singhal and Sri Arun Kumar Mishra, learned counsel for the petitioner and Sri A. K. Mehrotra, learned Counsel for the respondent U.P. Rajya Vidhyut Utpadan Nigam Ltd., and for other respondents.
1. The petitioner has prayed for quashing the reversion order dated 11.7.2001 passed by Deputy General Manager, Parichha Thermal Project Jhansi/Manager of U.P. Electricity Board Inter College, Parichha, Jhansi (in short called the 'College') and the recovery of excess payment from his salary, with further prayer for issuance of mandamus to the authorities to produce the order dated 2.6.2001 passed by the General Manager, Parichha Thermal Power Project, Jhansi and not to interfere in the functioning of the petitioner as a Lecturer in Mathmatics in the above 'College'.
2. Brief facts necessary for adjudication of the writ petition are that the father of the petitioner while working with the respondents died on 25.1,1997, thereafter by virtue of possessing the degree of M. Sc. (Mathematics) and B. Ed. the petitioner submitted an application on 4.2 1997 for appointment to the post of lecturer on compassionate ground. The Chief Engineer, Agra Division forwarded the application of the petitioner on 16.7.1997 to the Chief Engineer of the U.P. State Electricity Board, Lucknow. Consequent upon, later one recommended to the General Manager of a project e.g. Parichha Thermal Project under U.P. Rajya Vidyut Utpadan Nigam (in short called 'Nigam') on 21.8.1997 for appointment of petitioner. In reference to the letter dated 09.12.1997 of Genera) Manager an appointment order dated 24.02.1998 (Annexure-5 to the writ petition) was issued to the post of 'Lecturer' in the scale of Rs. 1650-2160A- and in compliance thereto the petitioner joined the service. The Chief Engineer in his letter dated 21.07.1998 later on indicated that the initial appointment of the petitioner to the post of lecturer was not in consonance to the prevailing norms of 'Nigam', therefore, an order of reversion and recovery of excess amount was passed on 11.7.2001 reverting the petitioner to the post of 'Assistant Teacher' in L.T. Grade in the pay scale of Rs. 1350-40-1550-50-1800-60-2160 (now revised pay scale Rs. 4500-125-7500).
3. According to the petitioner by virtue of his initial appointment made on compassionate ground he had worked for about three and half years i.e. from 27 2.1998 to 19.7.2001 to the post of 'Lecturer' before the reversion order in question was passed.
4. According to the petitioner, after the death of his father on 21.05.1997 in reference to the application dated 04.02.1997 for appointment on compassionate ground the entire process of appointment in respect of the petitioner under U.P. State Electricity Board Recruitment of Dependents of Board's Servants Dying in Harness Rules, 1975 (hereinafter in short called as 'Rules, 1975'), as amended from time to time, was made to the post of 'Lecturer', which is equivalent to the pay scale of Junior Engineer i.e. Rs. 1650-2160. Such appointment of the petitioner on compassionate ground was of permanent nature in view of the decision of this Court (D.B.) in 2002 (5) AWC 3708 (Yogendra Ram Chaurasiya v. State of U.P. and Ors.) (Para-9), whereupon the petitioner joined his service on 27.02.1998. According to the petitioner, entire recruitment process of the appointment was completed upto 09.12.1997, however, with some delay the appointment order was issued on 24.02.1998, therefore, the U.P. State Electricity Board Recruitment of Dependents of Board's Servants Dying, in Harness (4th Amendment) Regulations, 1998 (hereinafter in short called as 'Regulations, 1998 ), which came into effect on 22.01.1998, for deployment of the dependents of the employees working under the Board and died in harness after implementation of 'Regulations, 1998' was not to be applicable, therefore, without issuing any show cause notice or charge-sheet or without affording any opportunity of hearing in derogation to the principle of natural justice and in disregard to the provisions of Article 311 of the Constitution by merely issuing a letter of information dated 22.11.2000 (Annexure-11 to the writ petition) and making exparte inquiry behind the back of the petitioner without associating him and allowing the petitioner to participate in the inquiry reversion order is illegal and bad in law and is in violation to the principle of natural justice as provided in Yogendra Ram Chaurasiya (supra) and the impugned order of reversion in question is unsustainable in law for not supplying copy of the inquiry report and other relevant papers to the petitioner, which were basis of passing the impugned order, in view of the judgment of the Supreme Court in (Managing Director, ECIL, Hyderabad v. B. Karunakar).
In Yogendra Ram Chaurasiya (supra) this court has held as below:
"Any appointment made under the provisions of Dying-in-Harness Rules is to he treated as a permanent appointment and not a temporary appointment. This is also clear from the Government order dated 23.1.1976 filed as Annexure-2 to the writ petition wherein it has been mentioned that the dependent of deceased employee appointed on compassionate ground under the provisions of Dying-in-Harness Rules should not be retrenched even where the strength of the employee is being reduced. Thus, the appointment of the applicant-writ petitioner is to he treated as permanent appointment and not a temporary appointment. The nature of appointment, will not affect the writ petitioner, even if the appellant-writ petitioner has accepted the terms and conditions of the appointment which mentioned as a temporary appointment. The nature of appointment of the appellant-writ petitioner having been held to be permanent appointment, the appellant-writ petitioner is entitled to the constitutional safeguards as provided in Article 311 of the Constitution of India. In the present case, the procedure laid down in Article 311(2) of the Constitution of India, has not been followed before terminating the services of the appellant-writ petitioner, in as much as neither the appellant had been informed about the charges levelled against him nor any enquiry was conducted before terminating his services nor he was given opportunity of hearing, nor the authorities have invoked any of the clauses mentioned in provision to Article 311(2) of the Constitution of India for dispensing with the requirement of holding the enquiry."
5. For convenience Rule 3 of 'Rules, 1975', which came into effect from 20.06.1974, is reproduced as under:-
ß 3- fu;ekoyh dk ykxw fd;k tkuk & ;g fu;ekoyh ifj"kn ds vUrxZr twfu;j bUthfu;j rFkk mlds led{k ls uhps ds inksa ij gh ykxw gksxh A Þ Rule-3 of subsequent amended 'Rules, 1975', which came into effect from 06.04.1978, prescribes as below:-
ß la'kksf?kr fnukad 6-4-98 & ;g fu;ekoyh ifj"kn ds vUrxZr leLr ,sls inksa ij fu;qfDr gsrq ykxw gksxh] ftu ij lh/kh Hkkjrh dh tkrh gS A Þ Rule 5 of 'Rules 1975' provides as under ß 5 e`rd ds dqVqEc ds fdlh lnL; dh HkrhZ & fn bl fu;ekoyh ds izkjEHk gksus ds i'pkr fdlh ifj"knh; lsod dh lsokdky esa e`R;q gks tk;s rks mlds dqVqEc ds ,sls ,d lnL;
dks tks dsUnzh; ljdkj ;k jkT; ljdkj ds vFkok dsUnzh; ljdkj ;k jkT; ljdkj ds LokfeRok/khu ;k mlds }kjk fu;qf=r fdlh fuxe ;k jkT; fo|qr ifj"kn ds vk/khu igys ls lsok;ksftr u gks bl iz;kstu ds fy, vkosnu djus ij] HkrhZ ds lkekU;
fu;eksa dsk f'kfFky djrs gq, ifj"knh; lsok esa twfu;j bUthfu;j rFkk muds led{k ls uhps ds inksa ij lsok;kstu iznku fd;k tk;sxk A fdUrq izfrcU/k ;g gS fd og lnL; ml in ds fy, fufgr 'ksf{kd ;ksX;rk j[krk gks rFkk og vU; izdkj ls Hkh ifj"knh; lsok ds fy, vgZ gks A ,slh ukSdjh vfoyEc vkSj ;Fkk 'kD; mlh bdkbZ esa nh tkuh pkfg, ftlesa e`r ifj"knh; lsod viuh e`R;q ds iwoZ lsok&;ksftr Fkk A la'kksf/kr fnukad 6-4-98 & ;fn bl fu;ekoyh ds izkjEHk gksus ds i'pkr fdlh ifj"knh; lsod dh lsok dky esa e`R;q gks tk;s rks mlds dqVqEc ds ,sls ,d lnL;
dks] tks dsUnzh; ljdkj ;k jkT; ljdkj ds vFkok dsUnzh; ljdkj ;k jkT; ljdkj ds LokfeRok/khu ;k mlds }kjk fu;qf=r fdlh fuxe ;k jkT;fo|qr ifj"kn ds vk/khu igys ls lsok;ksftr u gks] bl iz;kstu ds fy, vkosnu djus ij] HkrhZ ds lkekU;
fu;eksa dks f'kfFky djrs g,] ifj"knh; lsok esa ,sls in ij ftl ij lh/kh HkhrhZ dh tkrh gS lsok;kstuk iznku fd;k tk;sxk A fdUrq izfrcU/k ;g gS fd og lnL;
ml in ds fy, fufgr 'kSf{kd vgArk j[krk gks rFkk og vU; izdkj ls ifj"knh;
lsok ds fy, vgZ gks A Þ
6. 'Regulation, 1998', which came into effect from 22.01.1998, provides as under:-
ßmÙkj izns'k jkT; fo|qr ifj"kn lsokdky esa e`r ifj"knh; lsodksa ds vkfJrksa dh HkrhZ ¼prqFkZ la'kks/ku ½ fofu;e & 1998Þ 1½ laf{kIr uke rFkk izkjEHk%& ¼1½ ;s fofu;e mÙkj inzs'k jkT; fo|qr ifj"kn lsokdky esa e`r ifj"knh; lsodksa ds vkfJrksa dh HkrhZ ¼prqFkZ la'kks/ku½ fofu;e 1998 dgyk;saxs A ¼2½ ;s rRdky izHkkoh gksaxs A ¼2½ fofu;eksa dk izfrLFkkiu%& mÙkj izns'k jkT; fo|qr ifj"kn lsokdky esa e`r ifj"knh; lsodksa ds vkfJrksa dh Hkrhz fofu;e 1975 ds orZeku fofu;e 3 ,oa 5 tSlk fd fuEu LrEHk&1 esa fn;s x;s gSa] LrEHk & 2 esa fn;s x;s fofu;eksa }kjk izfrLFkkfir gksaxs A LrEHk & 1 orZeku fofu;e LrEHk &2 ,rn~}kjk izfrLFkkfir fofuf;e fu;e&3 ß fu;eokyh dk ykxw fd;k tkukÞ ;g fu;ekoyh ifj"kn ds vUrxZr leLr ,sls inksa ij fu;qfDr gsrq ykxw gksxh] ftu ij lh/kh HkhrhZ dh tkrh gS A fofu;e&3 ß fu;ekoyh dk ykxw fd;k tkuk Þ ;g fu;ekoyh ifj"kn ds vUrxZr r`rh;
Js.kh voj vfHk;urk rFkk mlds led{k ds uhps ds inksa ,oa prqFkZ Js.kh ds leLr ,sls inksa ij fu;qfDr gsrq ykxw gksxh] ftu ij lh/kh HkrhZ dh tkrh gS A ß e`rd ds dqVqEc ds fdlh lnL; dh HkrhZ Þ ;fn bl fu;ekoyh ds izkjEHk gksus ds i'pkr fdlh ifj"knh; lsod dh lsokdky esa e`R;q gks tk;s rks mlds dqVqEc ds ,d ,sls lnL; dks tks dsUnzh; ljdkj ;k jkT; ljdkj ds vFkok dsUnzh; ljdkj ;k jkT; ljdkj ds LokfeRok/khu ;k mlds }kjk fu;af=r fdlh fuxe ;k jkT; fo|qr ifj"kn ds v/khu igys ls lsok;ksftr u gks] bl iz;kstu ds fy;s vkosnu djus ij] HkrhZ ds lkekU; fu;eksa dks f'kfFky djrs gq;s ifj"knh; lsok esa lsook;kstu iznku fd;k tk;sxk] fdurq izfrcU/k ;g gS fd og lnL; ml in ds fy;s fufgr vgZrk j[krk gks rFkk og vU; izdkj ls ifj"knh; lsok ds fy, vgZ gks A fofu;e&5 ßeqrd ds dqVqEc ds fdlh lnL; dh HkrhZ Þ ;fn bl fu;ekokyh ds izkjEHk gksus ds i'pkr fdlh ifj"knh; lsod dh lsokdky esa e`R;q gks tk; rks mlds d`VqEc ds ,d ,sls lnL; dks] tks dsUnzh; ljdkj ;k jkT; ljdkj ds vFkok dsUnzh; ljdkj ;k jkT; ljdkj ds LokfeRok/khu ;k mlds }kjk fu;qaf=r fdlh fuxe ;k jkT; fo|qr ifj"kn ds v/khu igys ls lsok;ksftr u gks] bl iz;kstu ds fy;s vkosnu djus ij] HkrhZ ds lkekU; fu;eksa dks f'kfFky djrs gq;s ifj"knh; lsok esa r`rh; Js.kh ¼ voj vfHk;urk rFkk mlds led{k ls uhps ds inksa ½ ,oa prqFkZ Js.kh ds inksa ij lsok;kstu iznku fd;k tk;sxk A fdUrq izfrcu/k ;g gS fd og lnL;%& ¼1½ in ds fy; fofgr 'ksf{kd vgZrk;sa iwjh djrk gks] ¼2½ ifj"knh; lsok ds fy;s vU;Fkk vgZ gks vkSj ¼3½ ifj"knh; lsod dh e`R;q ds fnukad ds ikap o"kZ ds Hkhrj lsok;kstu ds fy, vkosnu djrk gS A ijUrq tgka ifj"kn dk ;g lek/kku gks tk; fd lsok;kstu ds fy, vkosnu djus ds fy, fu;r le; lhek ls fdlh fof'k"V ekeys esa vuqfpr dfBukbZ gksrh gS ogka og vis{kkvksa dks ftugsa og ekeys esa U;k;laxr vkSj lkE;iw.kZ jhfr ls dk;Zoikgh djus ds fy, vko';d le>sa vfHkeqDr ;k f'kfFky dj ldrh gS A ifj"kn dh vkKk ls 'kjr pUnz jLrksxh lfpo Þ
7. According to the petitioner, the appointment of the petitioner was to be governed by 'Rules, 1975' and not by 'Regulations, 1998', which came into effect from 22.01.1998 and was to be applicable only for appointment on compassionate ground of dependents of employees of the Board who died in harness after implementation of 'Regulations, 1998'.
8. According to the petitioner, in view of "Regulations, 1998' the dependents of deceased employee could only claim appointment on compassionate ground, provided the employed person had died after coming into force of 'Regulations, 1998' i.e. the death has occurred of employed person after 22.01.1998. In support of his contentions learned Counsel for the petitioner has referred and relied upon (Maharashtra State Road Transport Corporation and Ors. v. Rajendra Bhimrao Mandve and Ors. ), where the Supreme Court in para-5 has observed as under-
"The serious dispute and controversy raised relates to the claim of the (Corporation that Circular No. 17 of 1996 dated 24.6.1996, only came to be issued by way of clarification and it was not only necessary to be issued but also governed the selection of Drivers in question. The writ petitioners, who were unsuccessful, asserted that it is the circular dated 4.4.1995 which should govern the selection and consequently the selections ought to have been made by assigning 87 1/2% marks for written/trade test and 12 1/2% for the oral test (personal interview) and results declared, accordingly. On going through the above circular orders, we find that the procedure for recruitment of Drivers is separate from recruitment for other categories where written test trade test has been specifically laid down and that it is only where the written test and interview are stipulated, the percentage of weightage for written lest interview has been resolved by the Board, under the directions of the Stale Government, to be fixed at 87.5% and 12.5% respectively. The directions of the State Government in their letter dated 2.1.1995 only fixes the. weightage to be given between marks obtained in written test and those in interview and no reference is found therein of any trade test or driving test. The resolution of the Hoard dated 21.3.1995 also seems to be on the same lines and is with reference to marks obtained in written test and interview respectively and not otherwise. Apparently, in view of the above and in the absence of reference to driving test or other trade test too, that the Corporation claims to have issued Circular Order No. 17/1996 dated 24.6.1996, on the basis of the earlier Circular No. 52/80 for pass in driving test to be presented to the ST Committee and No. 2590 dated 2.7.1990 pertaining to award of marks in the interview, by fixing the average of the marks awarded by the ST Sub-Committee to he the final and deciding factor in the matter of selection of a candidate. Therefore, the High Court cannot be said to he correct in holding that the circular order dated 24.6.1996 is illegal or arbitrary or against the orders of the State Government or the resolution of the Board of the Transport Corporation. Instead, it would have been well open to the High Court to have declared that the criteria sought to he fixed by the circular dated 24.6.1996 as the sole determinative of the merit or grade of a candidate for selection long after the last dale fixed for receipt of application and in the middle of the course of selection process (since in this ease the driving test was stated to have been conducted on 27.11.1995) cannot he applied to the selections under consideration and challenged before the High Court. It has been repeatedly held by this Court that the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced. Therefore, the decision of the High Court, to the extent it pronounced upon the invalidity of the circular orders dated 24.6.1996, does not merit acceptance in our hand and the same are set aside."
9. According to the petitioner, 'Regulations, 1998' dated 22.01.1998 shall not be relevant in the present case for the following reasons;
(a) In Clause 1(2) of the 'Regulations, 1998", which came into force on 22.01.1998 it has been indicated that ß;s rRdky izHkkoh gksaxs AÞ
(b) In view of Clause-5 of the 'Regulations, 1998' when employees of the Board had died alter implementation or coining into force of 'Regulations, 1998' i.e. when the death of employee had occurred after 22.01.1998 then only the dependents of the deceased employee would be able to claim appointment on compassionate ground.
(c) The 'Regulations, 1998' would apply to (i) Class III Junior Engineers (ii) posts equivalent to such Junior Engineers (iii) posts below to such Junior Engineers and equivalent posts and (iv) to all Class IV employees wherein direct appointment to such posts are made.
10. According to the petitioner, the scale of Junior Engineer (General Category) and lecturer is same i.e. Rs. 1650-50-2000-60-2240-75-2690, and the above scale in respect of lecturer has been prescribed in the notification dated 21st December, 1995, namely, U.P. State Electricity Board Teacher's Service Regulation, 1995.
11. According to the petitioner, pay scales of categories of two Junior Engineers (i) Junior ¼lkekU; Js.kh½ and (ii) Junior Engineer (izoj.k Js.kh). Junior Engineers, general category are referred in the Regulations, 1998 and not to the Juniors Engineers (izoj.k Js.kh). The word 'rFkk' means 'and' . In Bhargava Dictionary Standard Illustrated English Language 'and' has been defined as such:-
And-vkW.M conj. Connecting words, clauses and sentences. vkSj] rFkk ( And so forth, (and so on). bR;kfn ; And then, rc rks ;And yet. rFkkfi rks Hkh.
Even in case 'rFkk' means 'or' then it is necessary to read conjunction 'or' and 'and' one for the other. (Venkataramaiyas Law Lexicon.)
12. According to the petitioner, the appointment to the posts of Junior Engineer and Lecturer is made by the direct recruitment, as the same are equivalent and 'Regulations, 1998' can not be given retrospective effect.
13. 'The legislature does not waste its word by adding conjunction, if Junior Engineers have not been included to the post, on which appointment on compassionate grounds cannot be granted. The word 'rFkk' has its own significance. In case, intention of the legislature was not to include Junior Engineers for appointment on compassionate grounds, then the language of the legislature would have been ^voj vfHk;ark]* ^mlds led{k ds uhps ds inksa]* Moreover, appointment to the post of Junior Engineer as well as to the post of Lecturer is made by way of direct recruitment. It is not a case of the respondents that appointment to the posts of Junior Engineers, are not made directly or the post of lecturer is not equivalent to the post of Junior Engineer because the range has been defined in the amended Rule 3, wherein Junior Engineer is the top most post, on which a person can be appointed on compassionate grounds and the posts thereafter which are equivalent to the post of Junior Engineers and the posts, which are lower to the post of Junior Engineers and its equivalent post in class III cadre, are all available for appointment on compassionate grounds till the class IV employees, wherein all those posts on which direct appointments are made. The 'Regulations, 1998' are clear, wherein it mentions all the class IV employees on which appointment could be made on compassionate grounds subject to the conditions were the appointment, can also be made on such post by way of direct recruitment The integral part of the 'Regulations, 1998' are that the post of Class III or Class IV are all of such nature, wherein appointment could be made on the basis of direct recruitment, hence the post of lecturer also comes within the same category on which appointment on compassionate grounds could be made. Furthermore, interpretations of welfare scheme of the employees are to be made in such a manner as the same would fructifies such welfare measure is to be preferred in comparison to any construction which stultifies such benevolent welfare measure and moreover which are liberally to be construed in favour of weak in view of (Indian Bank v. K. Usha and Anr. ), where in Para-13 the Supreme Court has observed as under:-
"In this connection we must also have to keep in view the settled legal position that while construing any Scheme in connection with the question of providing compassionate appointments to the heirs of deceased employee who was the bread-winner and whose exit had left his heirs in the lurch and in precarious and vulnerable economic position a construction which fructifies such a welfare measure has to be preferred as compared to another construction which stultifies such a benevolent welfare measure. In this connection learned senior counsel for the respondents was right when she relied upon a decision of this Court in the case of Workmen of Binny Ltd., v. Management of Binny Ltd. and Anr. . In that case a Bench of three learned Judges of this Court speaking through Khalid, J. had to consider the provisions of a Scheme of Amalgamation of companies concerned under the orders of the High Court. While interpreting the scheme of amalgamation which had an impact on the question of welfare of employees, the following observations were made in para 9 of the report:
"...it is a trite law that in matters of welfare legislation, especially involving labour, the terms of contracts and the provisions of law should be liberally construed in favour of the weak...".
Keeping in view the aforesaid settled rule of construction when we consider the scope and ambit of Clauses 2 and 10 of the Scheme we do not find anything provided therein which would of necessity contra-indicate the foisting of liability and obligation on the transferee-bank in connection with the contractual obligation undertaken by its predecessor-in-interest, namely, the transferor-bank under the 2(p) Settlement of 1982 in connection with the question of providing compassionate appointment to the heirs of deceased bread-winner who might have died in harness."
14. It has been submitted on behalf of the petitioner that the word 'i'pkr' has deliberately been used in amended Rule 5, as legislature does not waste its word. The word 'i'pkr' has deliberately been inserted to bring the 'Regulations, 1998' w.e.f. 22.01.1998 in view of Clause- 1(2) of the said Regulations. As indicated in the 'Regulations, 1998' it shall be given immediate effect i.e. from 22.01.1998 and it shall not have retrospective effect and 'Rules, 1975' as amended subsequently shall be effective till the effect of 'Regulations, 1998' came into force. Since, 'Regulations, 1998' has specifically provided that it has to deal the appointment on compassionate ground in reference to those persons, who died after coming into force 'Regulations, 1998' i.e. after 22.01.1998.
15. It is settled principle of law that the service rules are not given retrospective effect unless specifically it has been provided for giving retrospective effect. If retrospective effect is given, then the same would disturb the long settled seniority, appointment, promotions, which ought not to be disturbed at a later stage. If the 'Regulations, 1998' is taken to be effective retrospectively along with the 'Rules, 1975' i.e. from the date of effect of 'Rules, 1975' then all those appointment ought to have been made from 1975 onwards till 22.1.1998 on all posts irrespective of Class I or Class II wherein direct appointment could be made, shall become illegal and are to be set aside in absence of any saving clause of the amended 'Regulations, 1998'. The 'Regulations, 1998' as such cannot be given retrospective effect as the same would defeat the entire purpose of the scheme pertaining to appointments on compassionate grounds. Amended Regulation-5 clearly states that all those persons, who have died after issuance of the amended 'Regulations, 1998' dated 22.1.1998, shall be governed by the amended 'Regulations, 1998', regarding appointment on compassionate grounds to their dependants. Prior to amended 'Regulations, 1998', all those who have died their dependants would be given appointment as per the regulation prevailing on 21 1.1998. It is also settled principle of law for interpretations, External and Internal aid should also be used so as to find the intention of the legislature in view of (Utkal Contractor & Joinery Pvt. Ltd. and Ors. etc. v. State of Orissa and Ors.).
16. The counter affidavit has been filed. According to the respondents-
(A) The erstwhile U.P. State Electricity Board (hereinafter in short called 'Board') for imparting the education to the children of its employee (particularly where the Generating Units/Projects for Generation were situated) established various institution, the said institutions are mostly recognised by the concerned Education department of the Stale Government. However, the service conditions etc. have been regulated by the regulations framed by the erstwhile 'Board' from time to lime. Regarding the standard of education as well as the prescribed course etc., regarding the qualification of teachers etc. where the relevant regulations framed by the erstwhile 'Board' were silent, the procedure/guidelines etc. provided by the concerned education department have been made applicable. After the trifurcation of the erstwhile 'Board', the said regulations remained effective and in existence, (B) The concerned 'College' is situated in the Parichha Thermal Power Project (hereinafter in short called 'Project') and is under over all administrative control of U.P. Rajya Vidhut Utpadan Nigam Limited (in short called 'Nigam'), to which the said Project belongs. The service: conditions of the teachers of the concerned 'College' is governed by the U.P. Rajya Vidhut Parishad Shikshak Sewa Viniyamawali, 1995 (hereinafter referred to as the 1995 Viniyamawali).
(C) The appointments under the Dying in Harness Rules prevalent in the erstwhile Board known as 'Rules, 1975' are provided for the purpose of saving the family from immediate crises and the appointment under the dying in harness Rules cannot be claimed as a matter of right. Prior to making the appointment under the 'Rules', the number of formalities are required to be completed and after completion of the said formalities, a person is entitled for appointment.
(D) That on 22nd January, 1998 at the relevant date, the petitioner was granted appointment on the post of 'Lecturer' on compassionate ground under 'Rules, 1975' as amended, however, the same was not permissible as per the relevant regulations and the said appointment on the post of Lecturer was granted due to oversight and on account of non-awareness of the relevant amendment made in the relevant Rules and as soon as the said amendment made in the concerned Dying in Harness Rules (on account of which the appointment could not be granted on the post of Lecturer), came in the knowledge of the respondents, the concerned respondents immediately took the steps and ultimately rectified the said mistakes by issuing the office memorandum No. 341 dated 11.07.2001 regarding the correction and supersession of the earlier appointment order No. 255 dated 24.2.1998 by which the petitioner was appointed as Lecturer.
(E) On the date of appointment of the petitioner to the post of Lecturer (i.e. on 24.2.1998), the concerned Dying in Harness Rules applicable in the erstwhile 'Board' (Now 'Nigam') had already been amended and the amendment made applicable on 22.1.1998, the appointment under the Dying in Harness Rules could be made to the post Junior to the post of Junior Engineer or the Junior to the post equivalent to the Junior Engineer in the pay scale of Rs. 1350-2160 at the relevant time. The appointment of the petitioner made on 24.2.1998 was not in accordance with the relevant regulations prevalent at relevant time, and as such, the communication dated 21.7.1998 was rightly issued to the petitioner.
(F) The pay scale of the Lecturer was previously Rs. 1650-2690, which was the pay-scale of the Junior Engineers also, whereas the pay-scale of L.T. Grade Teacher was Rs. 1350-2160 and the said pay-scale of L.T. grade Teacher was Rs 1350-2160 and the said pay-scale is just lower to the pay-scale of Rs. 1650-2690 and it was in the said pay scale in which a candidate could be appointed under the relevant Dying in Harness Rules after the amendment made effective from 22.1.1998.
(G) A committee was constituted by the order dated 5.10 2000 of the then General Manager of 'Project' and thereupon, the enquiry was conducted by the concerned inquiry committee and the said committee submitted its report dated 7.4.2001. After considering the entire facts and circumstances including the said inquiry report, the communication was issued for modification/correction/rectification of the appointment letter issued to the petitioner.
17. According to the petitioner in JT 1996 (10) S.C. 311 (Sri Mohan Singh and Ors. v. International Airport Authority of India and Ors. ), the distinction reflected in the use of the word "Shall" or "may" depends on conferment of power. In the present context, "may" does not always mean may. May is a must for enabling compliance of provision but there are cases in which, for various reasons, as soon as a person who is within the statute is entrusted with the power, it becomes duty to exercise. Where the language of statute creates a duty, the special remedy is prescribed for non-performance of the duty. In "Craies on Statute Law" (7th Edn.), it is stated that the Court will, as a general rule, presume that the appropriate remedy by common law or mandamus for action was intended to apply. General rule of law is that where a general obligation is created by statute and statutory remedy is provided for violation, statutory remedy is mandatory. The scope and language of the statute and consideration of policy at times may, however, create exception showing that legislature did not intend a remedy (generality) to be exclusive. Words are the skin of the language. The language is the medium of expressing the intention and the object that particular provision or the Act seeks to achieve. Therefore, it is necessary to ascertain the intention. The word "shall" is not always decisive. Regard must be had to the context, subject matter and object of the statutory provision in question in determining whether the same is mandatory or directory. No universal principle of law could be laid in that behalf as to whether a particular provision or enactment shall be considered mandatory or directory, It is the duty of the Court to try to get at the real intention of the legislature by carefully analysing the whole scope of the statute or section or a phrase under consideration. As stated earlier, the question as to whether the statute is mandatory or directory depends upon the intent of the legislature and not always upon the language in which the intent is couched. The meaning and intention of the legislature would govern design and purpose the Act seeks to achieve.
18. I have heard learned Counsels for the parties and gone through the records. For appointment on compassionate ground under the Dying in Harness Rules to the post, where the appointment could be made in the erstwhile 'Board' by direct recruitment was being governed by 'Rules, 1975' and as amended from time to time. Till 06.04.1978 the dependents of the employees died in harness could be appointed under 'Rules, 1975' to the posts of Junior Engineer and posts equivalent thereto, and on those posts below to Junior Engineer, after amendment in 'Rules, 1975' w.e.f. 06.04.1978, such appointment could be made to all the posts in erstwhile 'Board', where direct recruitment was to be made. Even the 'Rules, 1975' since its inception contemplated the appointment on compassionate ground under dying in harness rules in reference to those persons, who have died after coining into force "Rules, 1975' i.e. alter 20.06.1974. It is, therefore, since beginning the specific word provided "i'pkr" i.e. after was of vital importance, which was specifically high-ridded in Rule-5 of 'Rules, 1975' also in the amended Rules dated 06.04.1978. Undisputedly, the same continued prior to 21st January, 1998, the date from which 'Regulations, 1998' was brought into force. The Regulation-1(2) of "Regulations, 1998' specifically provided that it shall come into force with immediate effect i.e. from 21.01 1998. Here, under Regulation-5 the same concept was continued and 'Regulations, 1998' was to deal the appointment on compassionate ground under the Dying in Harness Rules in reference to those persons, who during the service period of erstwhile Board (now Nigam), have died after coming into force of 'Regulations, 1998' i.e. it is to deal the cases of those persons. who have died after 22.01.1998 and in respect of the posts same elaboration has been made specifically indicating in Regulation-3 as Junior Engineer and posts below equivalent thereto and class-IV ¼;g fu;ekoyh ifj"kn ds vUrxZr r`rh; Js.kh voj vfHk;Urk rFkk mlds led{k ls uhps ds inksa ,oa prqFkZ Js.kh ds leLr ,sls inksa ij fu;qfDr gsrq ykxw gksxh] ftu ij lh/kh HkrhZ dh tkrh gS A ½ legislature has become very generous while substituting the above words and by providing more scope of compassionate appointment of more category of posts. The above indication in respect of posts reflects that: appointment is to be made to the Class-Ill category and in bracket it has been provided that on post of Junior Engineer, equivalent post and post below to Junior Engineer. All these posts refer in Clause-3, where the appointment is to be made on compassionate ground. The legislature has also brought Class-IV posts for the purposes of compassionate appointment. Undisputedly, the post of Lecturer and Junior Engineer are in the same pay scale i.e. Rs. 1650-2090 and it is on this post only the appointment of the petitioner could have been made and rightly so it was made in view of 'Rules, 1975'. Since all the procedures for making appointment had already been completed under 'Rules, 1975', it shall not make affect over the appointment of the petitioner made on compassionate ground after coming into force of 'Regulations, 1998'. The 'Regulations, 1998' is not applicable in the case of the petitioner, as the father of the petitioner had died long back on 25.01.1997, therefore, in the case of appointment of the petitioner on compassionate ground 'Rules, 1975' is proper rules. The submissions advanced on behalf of the petitioner abovementioned have legal force. The 'Regulations, 1998', which specifically has come into existence from 22.01.1998, can not be given retrospective effect, as it emphatically proclaims its existence and coming into force in reference to Regulation-5 from immediate effect i.e. on 22.01.1998. In view of the above observations, the order dated 11.07.2001, impugned in the present writ petition, is not legally sustainable, therefore, it is set aside and mandamus is issued to the respondent authorities not to interfere in the functioning of the petitioner as 'Lecturer' in Mathematics in the said 'College' in erstwhile 'Board' (now "Nigam").
In view of the above observations, the writ petition is allowed.