A. F. R.

“Reserved'

Case :- SPECIAL APPEAL No. - 1343 of 2011

Petitioner :- Km. Shehnaj Begum

Respondent :- State Of U.P. And Others

Petitioner Counsel :- Manish Kumar Nigam, Pawan Kumar Srivastava

Respondent Counsel :- C.S.C., Dr. Y. K. Srivastava, S.C

CONNECTED WITH

Case :- SPECIAL APPEAL No. - 1401 of 2011

Petitioner :- State Of U.P. Thru' Spl. Secry., Rajaswa Anubhag And

Others

Respondent :- Hodil Singh

Petitioner Counsel :- M.S. Pipersenia, Dr. Y. K. Srivastava, S.C.

Respondent Counsel :- K.M. Singh

Hon'ble Laxmi Kanta Mohapatra, J.

Hon'ble Krishna Murari, J.

Hon'ble Mrs. Sunita Agarwal, J.

(Delivered by Hon'ble Krishna Murari, J.)

Noticing conflict in the view taken by two coordinate Benches in the

case of State of U. P. & others Vs. Rajendra Kumar 2000 (1)

AWC – 155 and Basic Shiksha Adhikari, Hardoi Vs. Madhu

Mishra and others 2009 (27), Lucknow Civil Decision- 995, a

third coordinate Bench has referred the following question for decision by a

Larger Bench:

“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.”

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U. P. Recruitment of Dependants of Government Servant Dying-in-

Harness Rules, 1974 (herein after referred as 1974 Rules) has been

framed in exercise of powers conferred by proviso to Article 309 of the

Constitution of India providing for recruitment of dependants of deceased

Government Servant to public services and posts in connection with the

affairs of the State of U. P. except the post, which are within the purview of

the U. P. Public Service Commission, in relaxation of the normal rules of

recruitment applicable to such public services and posts.. The appointment

made under the provisions of 1974 Rules in common parlance is known as

appointment on compassionate ground.

In accordance with rule 5 of 1974 Rules, a member of the family of

the Government servant dying-in-harness can be given suitable

appointment in Government service on a post which is outside the purview

of the U. P. Public Service Commission in relaxation of the normal

recruitment rules subject to the condition that spouse of the deceased

Government servant is not already employed under the Central Government

or a State Government or a Corporation owned or controlled by the Central

Government or a State Government and he fulfils the educational

qualification prescribed for the post and is otherwise qualified for

Government service. Consideration for such appointment is subject to an

application being made in this regard within five years from the date of

death of the Government servant though State Government is vested with

the power to relax time limit on being satisfied that such time limit causes

undue hardship in any particular case. The word 'family' used in rule 5 has

been defined in Rule 2 (c). At the time of incorporation of the Rules 1974

only wife or husband, sons, unmarried and widowed daughters were

included in the definition of family. The definition has been subject matter

of amendment from time to time and the definition as it stands now is

quoted here under:

“(c) “family” shall include the following relations of the deceased

Government servant;

(i)wife or husband;

(ii)sons/adopted sons;

(iii)unmarried daughters, unmarried adopted daughters, widowed

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daughters and widowed daughters-in-law

(iv)unmarried brothers, unmarried sisters and widowed mother

dependent on the deceased Government servant, if the

deceased Government servant was unmarried;

(v)aforementioned relations of such missing Government servant

who has been declared as “dead” by the competent court;

provided that if a person belonging to any of the above

mentioned relations of the deceased Government servant is

not available or is found to be physically and mentally unfit

and thus ineligible for employment in Government service,

then only in such situation the word “family” shall also include

grandsons and the unmarried grand daughters of the

deceased Government servant dependent on him.”

Thus, the members of the family of a deceased Government servant

who can be considered for granting compassionate appointment have been

specified in the rules. Apart from other conditions enumerated in the rules

for consideration of compassionate appointment, such member of the

family should also be a dependent on the deceased Government servant.

A Division Bench of this Court in the case of State of U. P. &

others Vs. Rajendra Kumar (supra) while considering the claim of a

grandson of the deceased Government servant, even though grandson was

not included in the definition of the family as it then stood, held that

definition was inclusive and a grand son is entitled to be extended the

benefit of the Rules.

However, another Division Bench in the case of Basic Shiksha

Adhikari, Hardoi Vs. Madhu Mishra (supra) while considering the

case of a widowed daughter-in-law for being considered for compassionate

appointment held that inclusive definition is often used in the definition

clause in order to enlarge the meaning of the word but the said principle

does not contemplate inclusion of such persons who have no nexus with

description of relations mentioned in the Rules, and adding widowed

daughter-in-law would mean holding something in the Rule which the Rule

making authority did not intend to include. Though the Bench did not

categorically observed that definition is exhaustive but in effect meant the

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same. It is relevant to point out that when the aforesaid decision was

rendered in April, 2009 widowed daughter-in-law was not included in the

definition of family. It was subsequently added by way of 9

th

amendment

Rules 2011 notified vide Gazette Notification dated 22.12.2011.

This conflict was taken note of by another Division Bench in Special

Appeal No. 1026 of 2003, U. P. Power Corporation Vs. Smt. Urmila Devi. In

this case claim of widowed daughter-in-law for compassionate appointment

was allowed by a learned single Judge holding that widowed daughter-in-

law though not included but nevertheless fall within the definition of the

family. U. P. Power Corporation went up in special appeal. Division Bench

hearing the special appeal, noticing conflict in decisions referred the matter

for decision by a larger Bench by making following observation :

“In a similar way, in the present context, it is our

opinion that the word 'include', although usually

prefixing an illustrative category, here prefixes an

exclusive one. As such, the matter is referred to the

Hon'ble Chief Justice for constitution of a larger

Bench.................................”

Full Bench constituted for the purpose finding that decision of

learned single Judge in the case of Smt. Urmila Devi Vs. U. P. Power

Corporation and others, 2003 (4) AWC 3205 having been over

ruled in the case of Basic Shiksha Adhikari Vs. Madhu Mishra

(supra), no longer subsists held that reference was not maintainable.

The conflict in the ratio of the decisions in the case of Rajendra

Kumar (supra) and Madhu Mishra (supra) by coordinate Benches

thus remained unresolved and was again noted by another Division Bench

which referred the question again for decision by a larger Bench and that is

how the reference is before us.

Though we are required only to answer the reference but the same

cannot be done in abstract therefore, it becomes necessary to refer to the

relevant facts of the case.

Facts of Special Appeal No. 1343 of 2011

Father of the appellant-petitioner who was holding a permanent post

of Pashudhan Prasad Adhikari under the State Government died in harness

on 19.01.2001. Petitioner being his divorced daughter applied for

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compassionate appointment claiming to be dependent upon him. When no

decision was taken, she approached this Court by filing Writ Petition no.

77174 of 2005 which was disposed of on 02.11.2006 with the direction to

'The Director Pashu Palan Vibhag' to decide her claim. Vide order dated

28.03.2007 Director rejected the claim on the ground that divorced

daughter is not included in the definition of the family under 1974 Rules.

She again filed a writ petition. Learned single Judge dismissed the writ

petition against which the special appeal was preferred wherein the

question has been referred for decision by a larger Bench.

Facts of Special Appeal no. 1401 of 2011

Respondent-writ petitioner was son of predeceased son of one Karan

Singh holding permanent post of Collection Peon, who died in harness on

20.11.1976. Wife of the deceased employee made an application for

providing compassionate appointment to the petitioner. When no decision

was taken, he invoked the jurisdiction of this Court by filing writ petition

no. 21725 of 2000. A learned single Judge disposed of the writ petition vide

order dated 25.05.2007 directing the State Government to take a decision

which was rejected on the ground that application was made with

considerable delay after 10 years of death of the employee. Petitioner again

approached this Court by filing writ petition no. 40668 of 2007. Learned

single Judge relying upon the decision rendered in the case of Rajendra

Kumar (supra) vide judgment and order dated 04.09.2008 allowed the

writ petition. State of U. P. preferred the special appeal. This special appeal

was connected with Special Appeal no. 1343 of 2011 and thus has been

placed before us.

We have heard Sri Manish Kumar Nigam, learned counsel for the

petitioner-appellant and Dr. Y. K. Srivastava, learned Standing Counsel.

Sri Manish Kumar Nigam has submitted that 1974 Rules have been

framed keeping in view the social welfare as the object is to redeem the

family from financial distress caused on account of sudden death of bread

earner of the family and thus should be interpreted in the manner which

sub serves the object. Relying upon the observations made in the case of

Rajendra Kumar (supra) it is contended that in order to promote the

purpose of Rules, the definition should be held to be inclusive and not

exhaustive. In support of the contention he has also placed reliance upon

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the decision of the Hon'ble Apex Court in the case of Workmen of

American Express International Banking Corporation Vs.

Management of American Express International Banking

Corporation (1985) 4 SCC 71, Hindustan Liver Ltd. Vs. Ashok

Vishnu Kate & others (1995) 6 SCC 326, Regional Provident

Fund Commissioner Vs. Hooghly Mills Company Ltd. (2012) 2

SCC 489. It has next been submitted that word “include” used in the

definition clause reflects the intention of the Rule framers that they wanted

to give extensive and enlarged meaning to the relations described therein

and the definition is inclusive and not exhaustive. Reliance has been placed

upon the decision of the Hon'ble Supreme Court rendered in Regional

Director, Employees State Insurance Corporation Vs. High Land

Coffee, Works (1991) 3 SCC - 617, Karnataka Power

Transmission Corporation and another Vs. Ashok Iron Works

Pvt. Ltd. (2009) 3 SCC – 240 and Oswal Fats & Oils Ltd. Vs.

Additional Commissioner (Administration), Bareilly Division,

Bareilly & others (2010) 4 SCC – 726.

He further submitted that it is well settled principle of statutory

interpretation that provisions should be interpreted in manner which

effectuate the purpose, and should not be given a literal or restrictive

meaning. To support the contention he has relied upon the judgments in

the case of Tirath Singh Vs. Bachittar Singh, AIR 1954 PEPSU –

118, A. A. Haja Muniuddin Vs. Indian Railways, AIR 1993 SC –

361 and Directorate of Enforcement Vs. Deepak Mahajan, AIR

1994 SC 1175.

Refuting the contentions Dr. Y. K. Srivastava appearing for the

State-respondents submitted that appointment on compassionate grounds

since are granted with a view to relieve the family of the economic distress

being faced on account of sudden death of the bread earner and is an

exception to the principles of equality of opportunity in public appointment

guaranteed by Articles 14 and 16 of the Constitution of India, no further

exception to the same can be created and the Rules are to be strictly

construed. He further submitted that compassionate appointment is not a

right but a concession and thus is to be made strictly in accordance with

the Rules, Policy or Scheme framed by the employer. He has relied upon

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the decisions of Supreme Court in the case of Umesh Kumar Nagpal

Vs. State of Haryana and others (1994) 4 SCC 138, National

Institutite of Technology and others Vs. Neeraj Kumar Singh,

(2007) 2 SCC – 481, State Bank of India Vs. Somvir Singh

(2007) 4 SCC – 778, General Manager, State Bank of India Vs.

Anju Jain (2008) 8 SCC – 475, V. Sivamurthy Vs. State of

Andhra Pradesh and others (2008) 13 SCC – 730, I. G. (Karmik)

Vs. Prahalad Mani Tripathi (2007) 6 SCC – 172, and General

Manager, Uttranchal Jal Sansthan Vs. Luxmi Devi (2009) 7 SCC

– 205.

He further submitted that term “include” used in the definition is

liable to be attributed a meaning in context it has been used and the term

is not always used to make the definition extensive and not exhaustive. In

reference to the context the word “include” is also used to connote a

specific meaning i. e. 'means and includes' or 'comprises' or 'consists'. To

drive home the point he has relied upon the decisions in the case of

South Gujarat Roofing Tiles Manufactures Association Vs. State

of Gujarat (1976) 4 SCC – 601, Reserve Bank of India Vs.

Peerless Company (1987) 1 SCC – 424 and N. D. P.

Namboodripad Vs. Union of India (2007) 4 SCC – 502.

We have given our anxious consideration to the rival contentions and

also perused the records as well as the various decisions cited at the Bar.

It cannot be disputed that object of the 1974 Rules is to enable the

family to tide over the sudden financial crisis on account of sudden death of

sole bread earner of the family. It also cannot be disputed that in various

pronouncements relied upon by Sri Manish Kumar Nigam, it has been held

that social welfare enactments should be interpreted in the manner which

promotes the object. Reference may be made to the decision rendered in

the case of Workmen of American Express International Banking

Corporation Vs. Management of American Express International

Banking Corporation (supra) wherein considering the question

whether Sundays and other holidays for which wages are paid under the

law, by contract or statute, should be treated as days on which employee

“actually worked” under the “employer” for the purpose of Section 25-F

read with section 25-B of the Industrial Disputes Act, the Hon'ble Apex

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Court in paragraph 4 of the reports observed as under :

“4. The principles of statutory construction are well

settled. Words occurring in statutes of liberal import

such as social welfare legislation and human rights

legislation are not to be put in Procrustean beds or

shrunk to Liliputian dimensions. In construing these

legislations the imposture of literal construction must be

avoided and the prodigality of its misapplication must be

recognized and reduced. Judges ought to be more

concerned with the 'colour', the 'content' and the

'context' of such statutes.”

The aforesaid view has been reaffirmed by the Hon'ble Apex Court

in the case of Hindustan Liver Ltd. Vs. Ashok Vishnu Kate and

others (supra).

Again in the case of Regional Provident Fund Commissioner

Vs. Hooghly Mills Company Limited and others (supra) while

considering the expression “so far as may be” used in Section 17 (1-A) (a)

of Employees' Provident Funds and Miscellaneous Provisions Act, 1952, it

has been reiterated that social welfare or remedial statute should receive

liberal construction guided by social perspective and should be informed by

values of Directive Principles of the Constitution and in case of any doubt,

same should be resolved in favour of the class of persons for whose benefit

statute is enacted.

The purpose of framing 1974 Rules is to relieve the family of a

deceased Government servant from immediate financial distress but for this

objective, the same would not have withstood the test of Articles 14 and 16

of the Constitution of India guaranting equal opportunities in the matter of

public employment. Claim of compassionate appointment is not a right of a

person and thus cannot be claimed as a matter of right. It is an exception

to general rule of equality and cannot be treated as an independent and

parallel source of employment. It is in effect concession in favour of

dependent of deceased employee by statutory rules framed with sole

purpose and object to redeem the family of the deceased Government

servant from penurious cause on account of sudden death. The benefit

extended by the rules is limited to the family of the deceased Government

9

employee only. In the case laws relied upon by Mr. Nigam the benefit was

being extended to a particular class, as a whole. However under 1974 Rules

the beneficial treatment is extended only to dependent family member of a

deceased Government employee, by giving compassionate appointment on

a public post, to the exclusion of others, who but for the said Rules, would

also have been entitled for consideration, in case there was a open general

competition.

In this connection, it may be relevant to quote following observation

made by Hon'ble Apex Court in the case of Umesh Kumar Nagpal Vs.

State of Haryana (supra).

“The favourable treatment given to such dependant of

the deceased employee in such posts has a rational nexus

with the object sought to be achieved, viz., relief against

destitution.......................... It must be remembered in this

connection that as against the destitute family of the

deceased there are millions of other families which are

equally, if not more destitute. The exception to the rule

made in favour of the family of the deceased employee is in

consideration of the services rendered by him and the

legitimate expectations, and the change in the status and

affairs, of the family engendered by the erstwhile

employment which are suddenly upturned”

Looking to the object and purpose underlying the provision for grant

of compassionate appointment which is in the nature of an exception to

general provisions, the Apex Court has observed in the case of Director

of Education (Secondary) Vs. Pushpendra Kumar (1998) 5 SCC

192 that care has to be taken while enforcing such provision so that it does

not unduly interfere with right of other persons to whom the post would

have been otherwise available.

In paragraph 8 of the reports, it has been observed as follows :

“Care has, therefore, to be taken that a provision for grant of

compassionate employment, which is in the nature of an

exception to the general provisions, does not unduly interfere

with the right of other persons who are eligible for

appointment to seek employment against the post which

10

would have been available to them, but for the provision

enabling appointment being made on compassionate grounds

of the dependent of a deceased employee”.

The Apex Court in catena of decisions while approving the general

principles of interpretation that beneficial legislations should be liberally

construed but in case of compassionate appointment the same being an

exception to Articles 14 and 16 held that it should receive a strict

construction. Reference may be made to the decision in the case of

General Manager, Uttranchal Jal Sansthan Vs. Laxmi Devi

(2009) 7 SCC – 205 wherein it has been observed as under :

“The provision of law which ex-facie violates the equality

clause and permits appointment through side door being

unconstitutional must be held to be impermissible and in

any extent required strict interpretation.”

In the case of State of Jharkhand Vs. Shiv Karanpal Sahu

2009 (11) SCC – 453, while considering the scheme for grant of

appointment on compassionate grounds to the dependants of those killed

in terrorist attack, it was held as under :

“Appointment on compassionate grounds, it is trite, must be

made keeping in view the provisions contained in Articles 14

and 16 of the Constitution of India. Such scheme cannot be

given an expansive meaning as the constitutional scheme

envisages that all persons who are entitled to be considered

for appointment would be eligible for being considered

therefor. Any policy decision for appointment on

compassionate grounds must, therefore, receive a strict

construction.”

Strict construction of Rules/Schemes for compassionate appointment

has been re-emphasised by the Supreme Court in Bhawani Prasad

Sonkar Vs. Union of India (2011) 4 SCC – 209 by making following

observation :

“Now, it is well settled that compassionate employment is

given solely on humanitarian grounds with the sole object to

provide immediate relief to the employee's family to tide over

the sudden financial crisis and cannot be claimed as a matter

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of right. Appointment based solely on descent is inimical to

our constitutional scheme, and ordinarily public employment

must be strictly on the basis of open invitation of applications

and comparative merit, in consonance with Articles 14 and 16

of the Constitution of India. No other mode of appointment is

permissible. Nevertheless, the concept of compassionate

appointment has been recognised as an exception to the

general rule, carved out in the interest of justice, in certain

exigencies, by way of a policy of an employer, which partakes

the character of the service rules. That being so, it needs little

emphasis that the scheme or the policy, as the case may be,

is binding both on the employer and the employee. Being an

exception, the scheme has to be strictly construed and

confined only to the purpose it seeks to achieve.”

The above authorities of the Hon'ble Supreme Court being directly in

respect of Rules/Scheme providing compassionate appointment there is

hardly any occasion to apply the general principles laid down for

interpretation of a beneficial or social welfare legislation.

Much emphasis has been laid by Sri Manish Kumar Nigam that use of

word 'include' in definition clause in relation to the family reflects intention

of the Rule Framers that they intended to give extensive and enlarged

meaning to the relations specified in the clause and it should not be given

restrictive meaning and the relations mentioned were only inclusive and not

exhaustive. However, the case laws relied upon by learned counsel for the

petitioner in support of this contention is mis founded as in none of the

decision, it has been laid down as rule that use of word 'include' in

legislation is always indicative of the intention of the legislature that it

wanted to give extensive and enlarged meaning. On the contrary, what has

been laid down is that interpretation of the word or expression must

depend on the text and context. In paragraph 17 in the case of

Karnataka Power Transmission Corporation and another Vs.

Ashok Iron Works Private Limited (supra) , it has been observed as

under :

“It goes without saying that interpretation of a word or

expression must depend on the text and the context.

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The resort to the word “includes” by the legislature

often shows the intention of the legislature that it

wanted to give extensive and enlarged meaning to

such expression. Sometimes, however, the context

may suggest that word “includes” may have been

designed to mean “means”. The setting, context and

object of an enactment may provide sufficient

guidance for interpretation of the word “includes” for

the purposes of such enactment”.

Again in the case of Oswal Fats & Oils Ltd. Vs. Additional

Commissioner (Administration), Bareilly Division, Bareilly &

others (supra), the Hon'ble Apex Court while considering the question

whether the word 'person' appearing in Section 154 (1) of U. P. Zamindari

Abolition and Land Reforms Act would include any company or association

or body of individuals, whether incorporated or not observed as under :

“The word “include” is generally used in interpretation

clauses in order to enlarge the meaning of the words or

phrases occurring in the body of the statute and when it is

so used those words or phrases must be construed as

comprehending, not only such things, as they signify

according to their natural import but also those things

which the interpretation clause declares that they shall

include. The word “include” is susceptible of another

construction, which may become imperative, if the context

of the Act is sufficient to show that it was not merely

employed for the purpose of adding to the natural

significance of the words or expressions used. It may be

equivalent to “mean and include” and in that case it may

afford an exhaustive explanation of the meaning which for

the purposes of the Act must invariably be attached to

those words or expressions”

In the case of South Gujarat Roofing Tiles Manufactures

Association Vs. State of Gujarat (supra), the Hon'ble Apex Court

while interpreting the word “includes” used in the explanation for the

purpose of entry 22 to Part-I of the Schedule to the Minimum Wages Act

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specifying nine articles of potteries held as under :

“3.The question turns on a true construction of the

explanation to entry 22 which says that for the purpose of this

entry potteries industry “includes” the manufacture of the

nine “articles of pottery” specified therein. Pottery in a wide

sense will take in all objects that are made from clay and

hardened by fire, from crude earthen pots to delicate

porcelain. Mr. Patel appearing for the respondent, State of

Gujarat, contends that the explanation indicates that potteries

industry in entry 22 is intended to cover all possible articles of

pottery including Mangalore pattern roofing tiles. Referring to

the well-known use of the word 'include' in interpretation

clauses to extend the meaning of words and phrases

occurring in the body of the statute, Mr. Patel submits that

the explanation, when it says that potteries industry 'includes'

the nine named objects, what is meant is that it includes not

only these objects but other articles of pottery as well. It is

true that 'includes' is generally used as a word of extension,

but the meaning of a word or phrase is extended when it is

said to include things that would not properly fall within its

ordinary connotation. We may refer to the often quoted

observation of Lord Watson in Dilworth Vs. Commissioner of

Stamps, that when the word 'include' is used in interpretation

clauses to enlarge the meaning of words or phrases in the

statute these words or phrases must be construed as

comprehending, not only such things as they signify according

to their natural import but also those things which the

interpretation clause declares that they shall include.

Thus where 'includes' has an extending force, it adds to the

word or phrase a meaning which does not naturally belong to

it. It is difficult to agree that 'includes' as used in the

explanation to entry 22 has that extending force. The

explanation says that for the purpose of entry 22, potteries

industry includes the manufacture of the nine “articles of

pottery” specified in the explanation. If the objects specified

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are also “articles of pottery”, then these objects are already

comprised in the expression “potteries industry”. It hardly

makes any sense to say that potteries industry includes the

manufacture of articles of pottery, if the intention was to

enlarge the meaning of potteries industry in any way.”

“4. We are also unable to agree with Mr. Patel that the articles

specified in the explanation may have been mentioned out of

abundant caution to emphasize the comprehensive character

of the entry, to indicate that all varieties of pottery are

included therein. This argument, though more plausible, does

not also seem acceptable. It is possible that one might have

doubts whether things like refractories or electrical or textile

accessories would pass under the description pottery as that

word is used in common parlance, but the explanation also

mentions crockery and toys regarding which there could be

hardly any doubt. The inclusion in the list of objects which are

well-recognised articles of pottery makes it plain that the

explanation was added to the entry not by way of abundant

caution”

“5. The contention of Mr. Tarkunde for the appellants is that

the articles mentioned in the explanation were intended to be

exhaustive of the objects covered by entry 22. According to

Mr. Tarkunde if the legislature wanted to bring within the

entry all possible articles of pottery then there was hardly any

point in mentioning only a few of them by way of explanation.

To this Mr. Patel's reply is that it is well-known that where the

legislature wants to exhaust the significance of the term

defined, it uses the word 'means' or the expression 'means

and includes', and that if the intention was to make the list

exhaustive, the legislature would not have used the word

'includes' only. We do not think there could be any inflexible

rule that the word 'include' should be read always as a word of

extension without reference to the context.”

In the case of Reserve Bank of India Vs. Peerless Company

(supra), while considering the import of the word 'includes' it was held

15

that interpretation may depend on the text and context. In the said case,

the word 'includes' occurring in Section 2 (a) of Prize Chits and Money

Circulation Schemes (Banning) Act, 1978, in the context, was interpreted

not to so expand the meaning of prize chit so as to take in every scheme

involving subscribing and refunding of money. It has again been laid down

that interpretation must depend upon text and the context.

It is thus clear that use of word 'include' by the legislature is not

always indicative of its intention to give extensive and enlarged meaning

but depending upon the context and object of enactment and other

surrounding circumstances 'include' may be equivalent to 'mean and

include' or 'means'.

Apex Court having held that Rules/Schemes of compassionate

appointments are to be strictly construed, use of word “include” in 1974

Rules cannot be taken as aid to expand the scope of family by adding any

other relation to the one already specified as the same would be directly in

contrast to law laid down in State of Jharkhand Vs. Shiv Karan Pal

Sahu (supra) and Bhawani Prasad Sonkar (supra).

The question can be considered from another angle. Word 'Family' is

not capable of any precise definition. According to Concise Oxford English

Dictionary 'family' means a group consisting of two parents and their

children living together as a unit; a group of people related by blood or

marriage; the children of a person or couple; all descendants of a common

ancestor.

Black's Law Dictionary defines 'family' as (i) A group of persons

connected by blood, by affinity or by law especially within two or three

generations (ii) A group consisting of parents and their children (iii) A

group of persons who live together and have a shared commitment to a

domestic relationship.

According to Law Lexicon term 'family' may be said to have a well

defined, broad and comprehensive meaning in general, it is one of great

flexibility and is capable of many different meaning according to the

connection in which it is used. Thus, it may be 'children', 'wife and

children', 'blood relations' or the 'members of the domestic circle'.

According to context, it may be of narrow or broad meaning as intention of

the parties using the word, or as the intention of law using it, may be

16

made to appear.

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.

In Devki Nandan Vs. Murlidar 1957 SC 133, it has been held

that 'family' in its popular sense means 'children'.

In Ram Chauvan Vs. Girija Nandini 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.

Patna High Court in the case of Aliv Kassan Vs. Torrab Hussain

AIR 1958 232 where the property was originally purchased by two sisters

has held the expression 'family' includes a sister's son.

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 Vs. Umar Abdulla, AIR 1942

(Bombay), Md. Azam Khan Vs. Hamid Shah, AIR 1947

(Allahabad) 137, Rahmanul Hasan Vs. 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'.

According to Law Lexicon 'family' may include even domestic

servants and some times persons who are merely boarders.

The term 'family' being capable of such wide and varying meaning

17

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.

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 & Ors. Vs. State

of Gujarat & Ors. AIR 2010 SC – 1714.

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.

Our view is fortified by the decision of the Hon'ble Apex Court in the

case of Auditor General of India and others Vs. G. Ananta

Rajeswara Rao, AIR 1994 SC – 1521 wherein while considering a OM

18

providing for compassionate appointment not only to son, daughter or

widow of a Government servant dying-in-harness but also extending the

benefit to 'near relative' which was left vague and undefined upheld the

provision in respect of son, daughter and widow wife while the other part

in respect of near relative was held to be hit by Article 16(2) of the

Constitution. In paragraph 5 of the report, it has been observed as under :

“A reading of these various clauses in the memorandum

discloses that the appointment on compassionate grounds

would not only be to a son, daughter or widow but also to a

near relative which was vague or undefined. A person who

dies in harness and whose members of the family need

immediate relief of providing appointment to relieve economic

distress from the loss of the bread-winner of the family need

compassionate treatment. But all possible eventualities have

been enumerated to become a rule to avoid regular

recruitment. It would appear that these enumerated

eventualities would be breeding ground for misuse of

appointments by compassionate grounds. Articles 16 (3) to

16 (5) provided exceptions. Further exception must be on

constitutionally valid and permissible grounds. Therefore, the

High Court is right in holding that the appointment on

grounds of descent clearly violates Art. 16 (2) of the

Constitution. But, however, it is made clear that if the

appointments are confined to the son/daughter or widow of

the deceased Government employee who died in harness and

who needs immediate appointment on grounds of immediate

need of assistance in the event of there being no other

earning member in the family to supplement the loss of

income from the bread winner to relieve the economic

distress of the members of the family, it is unexceptionable.

But in other cases it cannot be a rule to take advantage of

the memorandum to appoint the persons to these posts on

the ground of compassion. Accordingly, we allow the appeal

in part and hold that the appointment in Para 1 of the

memorandum is upheld and that appointment on

19

compassionate ground to a son, daughter or widow to assist

the family to relieve economic distress by sudden demise in

harness of Govt. employee is valid. It is not on the ground

descent simpliciter, but exceptional circumstance for the

ground mentioned. It should be circumscribed with suitable

modification by an appropriate amendment in the

memorandum limiting to relieve the members of the

deceased employee who died in harness, from economic

distress. In other respects Art. 16 (2) clearly attracted.”

Whatever may be the fathom of our compassion for the bereaved

family of a deceased employee, howsoever high may be our anxiety to help

such family to get out of penury, we cannot over step being bound by

dictates of law, the mandate of the constitution and the law declared by

the Hon'ble Apex Court.

In view of the above discussions, the irresistible conclusion is that

word 'include' used in the definition clause has been used by the Rules

Framers in the sense of 'means' and the definition, as it stands, is

exhaustive. It is, however, always open to the appropriate Government to

amend the definition of the family so as to include any other relations of

the deceased Government servant which it thinks fit to be included for

fulfilment of the purpose and object of the Rules.

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.

The last argument advanced by Mr. Nigam that a divorced daughter

attains the status of unmarried daughter and thus the claim of the

petitioner Km. Shehnaj Begum has wrongly been rejected and she deserves

for being considered for granting compassionate appointment is not worthy

of consideration by us.

We are only required to answer the reference made to us. Thus, it is

not necessary to return any finding on this issue. We leave it open to be

raised and adjudicated by the Division Bench in Special Appeal no. 1343 of

2011.

20

In so far as Special Appeal no. 1401 of 2011 is concerned, a perusal

of the facts, stated above, go to show that question referred to us did not

arise in the said case and it appears that the same has wrongly been

tagged along with reference. Accordingly, Special Appeal no. 1401 of 2011

is disconnected and may be placed before appropriate Division Bench for

hearing and adjudication on its own facts and merits.

(Mrs. Sunita Agarwal, J.) (Krishna Murari, J.) (Laxmi Kanta Mohapatra, J.)

Date : May 1

st

, 2013.

Dcs.