JUDGMENT S. Rafat Alam and Ashok Bhushan, JJ.
1. Heard Sri Neeraj Kant Verma, learned counsel for the appellant and learned standing counsel.
2. This appeal has been filed, under the rules of the Court, challenging the judgment of the learned single Judge of this Court dated 4th August, 2005 dismissing the writ petition filed by the appellant.
3. Brief facts, necessary for deciding this appeal, are; the husband of the appellant, Shivgovind Kushwaha, who was working as Class-IV employee at Government Girls Higher Secondary School, Vijainagar, Kanpur Nagar, was to retire of 31st May, 2003, which was his date of retirement as per Rule 56 of the Fundamental Rules. Sri Shivgovind Kushwaha died on 31st May, 2003 at 7.10 P.M. After the death of Sri Shiv Govind Kushwaha, compassionate appointment was claimed by the appellant under the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 for her son and also a claim was raised for extra ordinary pension. A writ petition being Writ Petition No. 6651 of 2005 was filed by the appellant, which was disposed of by a learned single Judge of this Court vide order dated 14th February, 2005 permitting the appellant to make a representation to the District Inspector of Schools which was directed to be decided by a reasoned order. In pursuance of the order of this Court dated 14th February, 2005, the District Inspector of Schools vide his order dated 9th May, 2005 rejected the claim of the appellant for giving compassionate appointment to her son as dependent of deceased employee. The District Inspector of Schools in the order held that late Shivgovind Kushwaha was retired in the afternoon of 31st May, 2003 and since the office hour is 10 A.M. to 5 P.M., the death occurred after the office hour, i.e., after his retirement disentitling any claim under the provisions of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as 1974 Rules). The order of District Inspector of Schools was challenged by the appellant before this Court. Learned single Judge by the impugned judgment also took the view that death having occurred in the evening at 7.10 P.M., which is after the retirement of the appellant's husband in the afternoon, no claim is made out for compassionate appointment under 1974 Rules. Learned single Judge referring to Rule 56(a) of the Fundamental Rules took the view that the said rule provides that a Government servant shall retire from service in afternoon of the last day of month in which he attains the age of superannuation. The learned single Judge was also of the view that the meaning of the word "afternoon" cannot be extended to evening and thereafter to midnight. Learned single Judge held that death of the appellant's husband had taken place in the evening at 7.10 P.M. which by no stretch of imagination can be termed as afternoon.
4. Sri Neeraj Kant Verma, learned counsel for the appellant, challenging the judgment, submitted that view of learned single Judge is erroneous. He contended that 1974 Rules provides for giving benefit to the dependent of Government servant who died during service period (Sewakal) and the appellant's husband died on the day of retirement, i.e., during his service period, hence the claim under 1974 Rules was fully maintainable. Learned counsel contended that word "afternoon" used in Rule 56(a) of the Fundamental Rules is the period from noon to midnight and the death at 7.10 P.M. was at the time when the husband of the appellant was in service. Learned counsel further contended that since the benefit under Group Insurance Scheme was given and the appellant has also been paid necessary amount under the said scheme, which covers the employee who died while in service, it clearly meant that appellant's husband was treated to have died during service. Learned counsel also relied on definition of word "afternoon" as given in Black's Law dictionary.
5. We have considered the submissions of the learned counsel for the appellant and perused the record.
6. This appeal raises an interesting question of law as to what is the time at which a Government servant shall be deemed to have retired. The appellant's husband was a Government servant governed by Fundamental Rules. Rule 56(a) of the Fundamental Rules, which is relevant for the purpose, is extracted below:-
"56(a). Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years:
Provided that a Government servant, who has attained the age of fifty- eight years on or before the first day of November, 2001 and is on extension in service, shall retire from service on expiry of his extended period of service."
7. The relevant words under the Fundamental Rules are "shall retire from service on the afternoon of the last day of the month". The word "afternoon" as defined in Black's Law dictionary, is extracted below:-
"Afternoon. May mean the whole time from noon to midnight (e.g. U.C.C.$ 4-104(1)(b)), or it may mean the earlier part of that time as distinguished from evening, or may mean that part of day between noon and evening."
8. Bouvier's Law Dictionary volume 1 (Third Revision) defines the word "afternoon" as follows:-
"AFTERNOON. The word has two senses. It may mean the whole time from noon to midnight, or it may mean the earlier part of that time, as distinguished from the evening; 2 EL. & BL 447, where an act forbidding innkeepers to have their houses open on Sunday during the usual hours of afternoon Divine Service was taken in the latter sense. See DAY; Time."
9. Stroud's Judicial Dictionary Fifth Edition defines the word "afternoon" in following manner:-
"AFTERNOON. "The usual hours of the morning and afternoon divine service," in the form of an alehouse licence given in Alehouse Act 1828 (c.61), Sched. C, refers to those hours as commonly understood, and, as regards afternoon, they mean from 3 p.m. To about 5 p.m., and are not extended by a usual evening service in the parish church (R. v. Knapp, 22 L.J.M.C. 139); there Erie J. said, "'Afternoon' has two senses. It may mean the whole time from noon to midnight, or it may mean the earlier part of that time, as distinguished from the evening.".
10. The word "afternoon" has been defined in Words and Phrases (Permanent Edition) Volume 2A in following manner:-
"AFTERNOON Cross References P.M.
"Afternoon" may mean the whole time from noon to midnight, or it may mean the earlier part of that time as distinguished from the evening. It was used in this latter sense in a statute prohibiting the opening of a public house during the usual hours of afternoon divine service, and did not include a service at 6 p.m. Reg. v. Knapp, 2 El. & Bl. 447, 451.
Though, accurately and properly speaking "afternoon" signifies from noon till evening, an indictment charging the violation of Sess.Laws 1881, p. 350, No. 259, prohibiting saloons from keeping open after 9 o'clock at night, which alleges that a saloon was kept open at 11 o'clock in the "afternoon," will be construed as sufficiently alleging the keeping open of the saloon after 9 o'clock at night. People v. Husted, 18 N.W. 388, 389, 52 Mich 624.
In action for injuries sustained in fall on icy steps, argument that defendant had no reason to believe that steps were not properly sanded during afternoon was not erraneous as misstatement of evidence that several persons had had trouble on steps in evening, since term "afternoon" ordinarily meant that part of day between noon and evening, rather than between noon and midnight. Buttrick v. Woman's Hospital Aid Ass'n, 177 A. 416, 418, 87 N.H. 194.
"Afternoon" may mean the whole time from noon to midnight or it may mean the earlier part of that time as distinguished from evening. In action for breach of transportation contract providing that drilling tools should be loaded not later than "afternoon" of certain date, judgment for defendant held error, where no issue was submitted as to whether time for loading expired at 6 p.m. on such date. Clevenger v. Carl B. King Drilling C., Tex. Civ. App., 62 S.W. 2d 1001."
11. The Corpus Juris Secundum Volume 2A defines the word "afternoon" as follows:-
"AFTERNOON. A word of uncertain meaning, not carrying the implication of a definite hour, but having two senses, one meaning the whole time from noon to midnight, and the other the early part of that time as distinguished from the evening, the ordinary definition of the word being the part of the day which follows noon, between non and evening."
12. The word "noon" has been defined in Webster Comprehensive Dictionary Encyclopaedic Edition (Volume- II) as follows:-
"Noon. (noon)n. 1 That time of day when the sun is on the meridian; the middle of the day; in an exact sense, 12 o'clock in the daytime. 2 The highest point of any period or career: the noon of life. 3. Originally, the ninth hour after sunrise, or about 3 o'clock p.m; midway between 12 o'clock and sunset; hence, the canonical hour of nones. 4 pl. A noontime repast. [OE non < L nona (hora) ninth (hour)]"
13. From the meaning of the word "afternoon" as noted above in various dictionaries and Corpus Juris Secundum, it is clear that the word "afternoon" does not carry the implication of a definite hour but the word has two connotations, namely, (i) the whole time from noon to midnight, and (ii) the early part of that time as distinguished from the evening.
14. The issue in the present case is as to which meaning has to be given to the word "afternoon" as used in Rule 56(a) of the Fundamental Rules.
15. The Fundamental Rule 56(a) requires that a government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years.
16. The consequences of retirement of a government servant are well defined in service rules regulating the State Government servants. It is relevant to note other provisions governing the service conditions of the government employees. It is relevant to refer Regulation 14 of the Civil Services Regulations. Regulation 14 of the Civil Services Regulations is extracted below:-
"14. Age. When an officer is required to retire, revert, or cease to be on leave, on attaining a specified age, the day on which he attains that age is reckoned as a non- working day the officer must retire, revert or cease to be on leave (as the case may be) with effect from and including that day. The rule applies to all officers, Civil, Military or Naval."
17. One more Rule relevant to be noted is Rule 99 of the Financial Hand Book Volume 5. Rule 99(a) is extracted below:-
"99(a). Pay or allowances can be drawn for the day of a person's death; the hour at which death takes place has no effect on the claim."
18. Regulation 14 of the Civil Services Regulations clearly provides that an officer is required to retire with effect from and including the date of retirement. The day of retirement has to include that day also. A legal day begins at 12 P.M. and continues till midnight. The retirement of an employee is not contemplated in forenoon.
19. The apex Court had occasion to consider the principle of computing age of a person in ; Prabhu Dayal v. State of Rajasthan. The apex Court in the said judgment held that fraction of a day will be omitted in computing a period of time in years or months in the sense that fraction of day will be treated as a full day. Following was laid down in paragraph-8 of the said judgment:-
"8... In calculating a person's age, the day of his birth must be counted as a whole day and he attains the specified age on the day preceding, the anniversary of his birth day. We have to apply well accepted rules for computation of time. One such rule is that fraction of a day will be omitted in computing a period of time in years or months in the sense that a fraction of a day will be treated as a full day. A legal day commences at 12 o'clock midnight and continues until the same hour the following night. There is a popular misconception that a person does attain a particular age unless and until he has completed a given number of years. In the absence of any express provision, it is well settled that any specified age in law is to be computed as having been attained on the day preceding the anniversary of the birth day."
20. Regulation- 14 of the Civil Services Regulations, as quoted above, makes it clear that retirement of a person is to take place on attaining a specified age with effect from and including that day. Thus the retirement shall be in the afternoon of the last day of month in which person attains the age of 60 years but the last day has also to be included. The principal for computation of time as laid down by the apex Court in Prabhu Dayal's case (supra) is also to the effect that a fraction of a day has to be ignored. Fundamental Rule 56(a) does not contemplate retirement of a person in any fix hour of the afternoon nor the retirement of different category of government employees is contemplated in different hours of the afternoon. From the meaning of the word "afternoon" as given in various dictionaries it has to be decided for the purposes of the present case as to which meaning is to be preferred. Whether the word "afternoon" is to be understood as a period of time from noon till beginning of the evening i.e., before the sun set or it has to be understood as the period beginning from after 12 noon till midnight. There may be large category of employees whose duties begin in the evening or night. For such category of employees if we take the meaning of afternoon as period till sun set, their office hour may not begin on the last day of the month. For above category of employees the period before evening and after 12 noon may fall in the previous day which cannot be accepted as a last day of retirement. We are concious that under the orders issued by the Governor, as applicable in the State of Uttar Pradesh, the last day of retirement is treated to be a non working day but last day of the retirement is to be included, hence the meaning of word "afternoon" as the whole time from noon to midnight is to be preferred. The Black's Law dictionary also defines the word "P.M." (Post Meridian) in following manner:-
"P.M. An abbreviation for "postmaster," also for "post meridian," afternoon."
21. The word "afternoon" is thus also used as synonymous to the word "P.M.". The word "P.M." is a period denoting post meridian. The sun is on the meridian at 12 noon. The word "noon" is abbreviation of post meridian one meaning of which is also afternoon. In the context of service the working period of an employee is denoted in two parts, i.e., forenoon and afternoon. Forenoon is a period prior to noon i.e., period earlier to 12 noon. The period afternoon has to be, thus, construed as period from 12 noon to midnight. The word "afternoon", for the purpose of retirement of a government servant, thus, has to be treated as period beginning from noon till the end of the day. A legal day ends at 12 P.M.
22. The view which we are taking also finds support from the observation made by the Madras High Court in 1990(1) S.L.R. 513; G. Subramaniam v. Government of Tamil Nadu and Ors.. The writ petitioner in that case was due to retire on the afternoon of 30th June, 1977 on the attainment of the age of superannuation. He was informed that very afternoon that he is placed under suspension and permission is refused to retire until further orders. The Madras High Court made observation in the said judgment to the effect that the officer was to retire in the midnight of 30.6.1977/1.7.1977. Following observation was made in paragraph- 5 which is quoted as below:-
"5. Under Rule 17(e) of the said Rules, a member of a service may be placed under suspension from service, where an enquiry into grave charges against him is contemplated, or is pending or a complaint against him of any criminal offence is under investigation or trial and if such suspension, is necessary in the public interest. The petitioner was admittedly in Government service on 30.6.1977. He was due to retire on the midnight of 30.6.1977/1.7.1977, placing him under suspension on the ground that a criminal offence is under investigation and it was necessary in the public interest to place the petitioner under suspension cannot be said to be in violation of any rule of law. But the question is whether the further order passed in the Government order refusing permission to the petitioner to retire that afternoon is valid in law. F.R. 56(e), which empowers the Government to prevent a person retiring, runs thus:-
"A Government servant under suspension on a charge of misconduct should not be required or permitted to retire on his reaching the date of compulsory retirement but should be retained in service until the enquiry into the charge is concluded and a final order passed thereon by the competent authority."
In order to invoke F.R. 56(c), two conditions must be concurrently satisfied. (1) The Government servant must be under suspension and (2) The suspension must be on a charge of misconduct. The words "on a charge of misconduct" clearly implied that a charge must have been passed against him. The mere fact that an enquiry into grave charges is contemplated or that a complaint against him of any criminal offence is under investigation are hardly sufficient to hold that the Government servant is under suspension of the charge of misconduct, within the meaning of F.R. 56(c). This is the view expressed by Nainar Sundaram, J., in Natarajan. S. v. The Government of Tamil Nadu, Madras 1987 Writ LR. 191. The later portion of G.O.Ms. No. 1547 dated 30.6.1977 refusing permission to the petitioner to retire from service is not in accordance with F.R. 56(c) and is, therefore, void in law. The result is, the petitioner shall be deemed to have retired normally on the afternoon of 30.6.1977 even though an order of suspension had been passed against him."
23. From the foregoing discussions, we are of the opinion that for purposes of retirement of a government servant, the time afternoon has to be construed as a time after the noon (12 O'clock) till the end of the day (12 P.M.). The view taken by learned single Judge that the death of the employee, Shivgovind Kushwaha, occurred after his retirement cannot be approved. The employee died at 7.10 P.M. on the last day of his retirement. The words "afternoon of the last day of the month" are wide enough to include the period of 31st May, 2003 (the day of retirement) from 12 noon till the end of the day (12 P.M.) we accordingly hold that the employee died while he was in service.
24. The next question arises for consideration in this appeal is as to whether the claim of the appointment on compassionate ground can be allowed in the facts of the present case. The object of compassionate appointment has been, time and again, reiterated by the apex Court as the object to give immediate financial help to the family which has lost its bread earner. The apex Court in ; Umesh Kumar Nagpal v. State of Haryana and Ors. laid down in paragraph-2 as under:-
"2. The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family...."
25. In the present case day of retirement of the appellant's husband was fixed and the service of the appellant's husband was to come to an end on the day of retirement. The family including every one was well aware that the appellant's husband shall retire on 31st May, 2003 and thereafter the affairs of the family has to be carried on in a particular manner. The financial resources for the family were well known to them. The appellant received group insurance benefits and other retirement benefits consequent to death of her husband. The right to claim compassionate appointment is not a matter of right. It depends on the facts of each case and the hardship to which a family is exposed by death of the person. In the present case the death having taken place on the date of retirement, family was not put to any sudden financial crisis which required giving compassionate appointment to son of the appellant. The right to get compassionate appointment does not devolve upon any person only on account of death nor it can be construed as right to succeed some property on account of death. We are satisfied that present was not a case in which claim of compassionate appointment is made out.
26. In view of the foregoing discussions, we maintain the judgement of the learned single Judge dismissing the writ petition, but on the reasoning given as above. We do not find any merit in the appeal.
27. It is accordingly dismissed.