Rajasthan High Court - Jodhpur
Smt. Pinki vs State Of Raj. & Ors on 12 September, 2011
Author: Govind Mathur
Bench: Govind Mathur
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
O R D E R
Smt. Pinki v. State of Rajasthan & Ors.
S.B.CIVIL WRIT PETITION NO.9177/2010
under Article 226 of the Constitution
of India.
Date of Order :: 12th September, 2011
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
Mr. P.P.Choudhary, Senior Advocate, assisted by
Mr. Mahendra Vishnoi, for the petitioner.
Mr. R.L.Jangid, Additional Advocate General with
Mr. H.S.Vishnoi, for the respondents.
....
BY THE COURT :
REPORTABLE The petitioner is daughter-in-law of late Shri Mohanlal who died on 24.5.2008 alongwith his son Shri Ratanlal (husband of the petitioner) and daughter Kumari Seeta in a road mishap. The family of late Shri Mohanlal was survived by only female members and they are Smt. Suwa Devi (aged about 80 years, mother of deceased), Smt. Jimiya Devi (wife of the deceased and mother-in-law of the petitioner aged about 53 years), Smt. Pinki (the petitioner herself, aged about 25 2 years), Baby Krishna and Baby Rampyari (both daughters of the petitioners aged 8 and 2 years respectively).
The petitioner, considering herself a dependent of late Shri Mohanlal, who was working as Veterinary Assistant at the time of his death with the respondents, applied through her mother-in-law for appointment on compassionate grounds, as per the Rajasthan Compassionate Appointment of Dependents of Deceased Government Service Rules, 1996 (hereinafter referred to as "the Rules of 1996"). The claim of the petitioner has been rejected being not "Dependent" of the deceased government servant as defined under Rule 2(c) of the Rules of 1996. As per Rule 2(c) the term "Dependent" means, a spouse, son, unmarried and widowed daughter, adopted son/adopted unmarried daughter legally adopted by the deceased government servant during his/her life time and who were wholly dependent on the deceased government servant at the time of his/her death.
With the factual background above, the petitioner by this petition for writ is demanding a direction for the respondents to employ her in Class- IV service on compassionate grounds. The grounds to claim the relief are as under:-
"A. The father in law of the petitioner was a low paid employee working as Veterinary 3 Assistant in the respondent department, who has not left any thing for the survival of the family members and due to the untimely death of the earning male member(s) of the family and old age of the mother in law, the condition of the family of the deceased has become miserable, they are virtually hand to mouth, and the responsibility to feed the family of four (two aged members and two minor daughters) has come to the petitioner. In these circumstances, the non-consideration of the case of the petitioner for compassionate appointment is clear violation of the rules of 1996 for appointment on compassionate ground and the same is also violative of the provisions of the article 21 of the Constitution of India.
B. After the simultaneous death of father in law and husband of the petitioner, the responsibility to feed the members of his family has fallen on the shoulders of the petitioner. The widow grand mother in law and widow mother in law of the petitioner are old ladies and can not work for earning. The petitioner being the only dependent member of the deceased employee who is eligible and responsible to feed four generations of all female family members submitted application for compassionate appointment."
Per contra, the stand of the respondents as narrated in reply to the writ petition is as follows:-
"So far as the Rules of 1996 are concerned, all appointments under these rules are made while the claimant comes within the category 4 of "Dependent" as defined in the said rules. As per rules Smt. Jimni Devi, widow of deceased Shri Mohan Lal Sirvi comes within the definition of "Dependent". In case of daughter, if she is unmarried then she also comes within the definition of the "Dependent". Smt. Jimni Devi widow of deceased Shri Mohan Lal Sirvi and Prem Sirvi, daughter of the deceased Shri Mohan Lal Sirvi have expressed their no objection in case the petitioner is appointed as dependent of deceased Shri Mohan Lal under the Rules of 1996. Thus, as per the provisions of the Rules of 1996, the petitioner does not fall in the category of the "Dependent" as defined under Section 2(c) of the Rules of 1996, and therefore, so far as the Rules are concerned, the petitioner is not entitled to get appointment as "Dependent" of deceased Shri Mohan Lal Sirvi as defined under the Rules of 1996 and that is why she was not granted appointment under the said rules as she was not a dependent of deceased Shri Mohan Lal Sirvi as per Rules of 1996."
Precisely, the issue requires adjudication is about application of the term "Dependent" as defined under Rule 2(c) of the Rules of 1996 qua a "widowed daughter-in-law" of a deceased government servant.
Before coming to that, it shall be appropriate to have a view of the objects of the Rules of 1996. The Rules aforesaid in explicit do not enumerate the objects, but pondering of the entire scheme, the purpose of the Rules is to mitigate the 5 hardship due to death of the sole bread earner in a family of a deceased government servant by providing appointment as compassion. Such appointment redeem a family in harness from distress. The word "family" is not a term used in the Rules and rightly so, as the purpose of the Rules is to extend a hand of help to the persons suffering from hardship other than emotional too, due to unexpected death of the person, who was supporting the entire family. The amplitude of such persons is narrowed down by mentioning the relations those may be treated as "dependents" of a deceased government servant under Rule 2(c). The relation of "daughter-in-law" is not enumerated in Rule 2(c) of the Rules of 1996 as "dependent", thus, appointment is denied to the petitioner.
It is stated on behalf of the respondents that the rule is quite plain and clear, therefore, the literal rule of interpretation should be applied to it. It is asserted that the equity may be in favour of the petitioner, and the rule may be causing hardship to her, but that cannot be a reason to alter the meaning of the statute or to include something i.e. otherwise extraneous to the meaning provided by the author of the statute. The assertion of learned counsel for the State is that the Rules suffers from no ambiguity being unequivocal, therefore, the Court is not supposed to import any rule of interpretation, except to take literal construction and by taking to 6 that, a daughter-in-law of a deceased government servant cannot be treated as a "dependent".
I am in absolute agreement with the counsel for the respondents and I too see no reason for deviating from the literal or strict construction of the statute, where the expression is unambiguous, however, the doctrine aforesaid is not static or just of status quo nature. Every law, in itself is kinetic and is having sufficient energy to serve its purpose and to achieve its objects for a long span. If any difficulty arises in getting the purpose of the Rule served, then to meet such exigencies, the Courts are having authority to adopt "purposive construction, which as a matter of fact is an extension or to say a dimension to the doctrine of the literal construction of a statute".
Lord Denning in Magor and St Mellons v.
Newport Borough Council (1952) HL, said that "we sit here to find out the intention of Parliament and carry it out and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis". Justice Aharon Barak, President of the Supreme Court of Israel, while discussing the scope of doctrine of the "purposive interpretation" pointed out that "in carrying out a purposive interpretation of a constitution or a statute, it is necessary to distinguish between its 7 subjective and objective purposes. The subjective purpose of a constitution or statute is the actual intent that the authors of it, namely, the farmers of the constitution or the legislature, respectively, held at the time of the making of the constitution or the statute. On the other hand, the objective purpose is not what the author actually intended but rather what a hypothetical reasonable author would have intended, given the context of the underlying legal system, history and values, etc. of the society for which he is making law. This objective purpose will thus usually be interpreted to include the realization, through the given legal text, of the fundamental or core values of the legal system."
The Francis Bennion in a book of Statutory Interpretation (4th edition 2002 page 810) defined the purposive interpretation as under:-
"A purposive construction of an enactment is one which gives effect to the legislative purpose by : (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose, or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose."
The doctrine aforesaid is not alien to our jurisprudence also. The only caution given by the Apex 8 Court in several judgments including the J.P.Bansal v. State of Rajasthan & Anr. (AIR 2003 SC 1405) and State of Jharkhand v. Govind Singh & Anr. (JT 2004(10) SC
349) is that the effect of such interpretation of a statute in no case should be of amending the law.
From the discussion above, it is clear that in exceptional cases, without having any effect of amending the law the Courts with a view to bring the law as per the reasonable and purposive intention of the law maker and also looking to all relevant objective conditions may adopt the doctrine of "purposive interpretation".
Now coming to the Rules of 1996, purpose of which is to provide a respite by way of employing his/her dependent during the time of distress/harness due to unexpected death of a government servant, it is to be examined that whether non-inclusion of "widowed daughter-in-law", as suggested by learned counsel for the respondents serves the purpose of the Rules or ultimately the intent of the author of the Rules. The scope of the Rules of 1996, as per Rule 4 is to govern appointment of the deceased government servant on compassionate grounds without conferring any right for a particular post. The Rule 5 of the Rules of 1996 provides certain conditions for appointment and those are:-
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"(1)When a Government servant dies while in service one of his/her dependents may be considered for appointment in Government service subject to the condition that employment under these rules shall not be admissible in cases where the spouse or at least one of the sons, unmarried daughters, adopted son/adopted unmarried daughter of the deceased Government servant is already employed on regular basis under the central/ any State Government or Statutory Board, Organisation/Corporation owned or controlled wholly or partially by the Central/any State Government at the time of death of the Government servant.
Provided that this condition shall not apply where the widow seeks employment for herself. (2)Appointment under these rules shall be given on the condition that the person appointed on compassionated ground shall maintain properly the other family members who were dependent on the deceased Government servant and on furnishing an undertaking in writing that he/she shall maintain properly the other family members who were dependent on the deceased Government Servant. If subsequently, at any time, it is proved that such dependent family members are being neglected or are not being not being maintained properly by him, the appointment may be terminated by the Appointing Authority after providing an opportunity to the compassionate appointee by way of issue of show cause notice asking him to explain why his services should not be terminated." 10
At this point, the reference of the definition of the "Dependent" as given in Rule 2(c) of the Rules of 1996 shall be worthwhile which brings spouse, son, unmarried daughter or widowed daughter, adopted unmarried daughter and adopted son in its ambit, and as per Rule 5(1) the admissibility for appointment under the Rules of 1996 is not available, where the spouse or at least one of the sons, unmarried daughters, adopted son/adopted unmarried daughter of the deceased government servant is already employed on regular basis under the Central/any other State or the Statutory Board, Organisation/Corporation owned or controlled wholly or partially by the Central or any other State Government at the time of death of the government servant.
It is quite important to notice here that sub-rule(1) of Rule 5 of the Rules of 1996 do not mention about a widowed daughter who is otherwise a dependent as per Rule 2(c). This exclusion is having a significance. If the law framing authority was intending to provide inadmissibility for appointment on simplicitor employment of any dependent, then "widowed daughter" should have also been referred in Rule 5(1), but that has not been done purposely. The exclusion of the "widowed daughter" in Rule 5(1) is made only with a view that such a daughter is supposed to serve and support her in-laws and her own children 11 also, therefore, even if she is having some employment with the institutions referred in sub-rule(1) of Rule 5, the other dependents shall be having admissibility for compassionate appointments. The exclusion of "widowed daughter" in Rule 5(1) in quite unambiguous terms depicts that the author of the Rules were aware about the fact that a "daughter-in-law", who also happens to be a "widowed daughter" is supposed to serve her in-laws, her children and also her parental family.
The question now arise that if the law making authority was aware about the position of "widowed daughter-in-law" then why in the category of dependents under Rule 2(c) of the Rules of 1996, she has not been placed in explicit? To resolve this knot, a look on the relations expressly referred in the definition of dependents is desirable. The relations of spouse, son, adopted son, unmarried or adopted unmarried daughter in no way can include the relation of "widowed daughter-in-law", however, the term "widowed daughter" appears to be quite wide and that may include "widowed daughter-in-law" for the purpose of these rules.
If the rule makers were intending to exclude "widowed daughter-in-law" from the category of dependents, then they would have include "widowed daughter" in the category of dependents, employment of 12 whom makes appointment on compassionate grounds inadmissible under the Rules of 1996, but it has not been done. Meaning thereby, a "widowed daughter" is also a "widowed daughter-in-law", who is supposed to serve her in-laws and children. Thus, it appears that the term "widowed daughter-in-law" is part of "widowed daughter".
Suffice to say that in Indian society, a daughter-in-law is supposed to be treated as daughter. In the society a daughter-in-law, may she be widow, is always treated as an integral member of the family and she possess all honour as well as the responsibilities of the household. In multi ethical society of India, daughter-in-law is supposed to take care of her in- laws family, even after death of her son. In Hindus a woman at the time of her marriage take certain vows and those are :-
"My Lord, you were kind to give me the responsibility of the home, food and finances. I promise that I shall discharge all my responsibilities for the welfare of the household, family and the children. This is my commitment to you.
My Lord, at all times, I shall continue to fill your heart with strength and courage. In your happiness I shall rejoice. I promise that I will always please you with sweet words and take care of the family and our 13 children. In return you shall love me alone as your wife. May God bless you, the household and our children.
My Lord, I will love you with single-minded devotion. I will treat all other men as my brothers. This is my commitment and pledge to you. You are my joy and my devotion to you is pure.
My Lord, in all acts of righteousness ("dharma"), in material prosperity ("artha"), in every form of enjoyment, and in divine acts such as fire sacrifice, worship and charity, I promise to participate and will always be with you. I will please you in every way I can.
My Lord, this is my humble submission to you, I will share both in your joys and sorrows. Your love will make me very happy. I will always honor you.
My Lord, may God bless you. May I fill your heart with great joy and peace time and time again. I promise that I will always be with you and will always support you.
My Lord, I have become your spouse by the law of God, holy fire and the holy scriptures. The promises I have made have been spoken with pure heart and pure mind. All the angels are witnesses to this fact. I shall neither deceive you nor will I ever let you down. May our love for each other and this marriage last forever."14
The vows taken clearly indicates commitment of a Hindu daughter-in-law towards her household i.e. her in-laws family.
Muslim women are also having definite obligations to their husband and his family. The holy Quran states "the good women in the absence of their husbands guard their rights as Allah has enjoined upon them to be guarded." A Muslim wife is required to guard her husband's property. She must safeguard his home and possessions to the best of her ability. She is required to manage household affairs wisely, so as to prevent loss or waste and also to maintain honour of the family. At the time of marriage the Imam or cleric recites the words of love, commitment, significance of marriage, the couples' responsibilities towards each other and God, the couples do decide on exchanging the vows to adhere the instructions of the Holy Quran and also pledge honesty and sincerity in relation including to maintain the household with obedience, honesty and sincerity.
In Christian marriage the central focus is on service. A Christian couple makes a promise to one another publicly before the God to do everything with their power to help each other grow in becoming what God has created them to be, despite all adversities, as long as they both live.
15
The facts stated above clearly indicate that a "daughter-in-law" is an important part of in-laws family and she is required to take all care of household. The term "daughter-in-law" itself indicates that she is to be accepted as "daughter" by in-laws. As such for all purposes the term "daughter" is wide enough to include "daughter-in-law". The legal position that emerges from the entire discussion is that for the purpose of the Rules of 1996 the term "widowed daughter" includes a "widowed daughter-in- law", as such, she is a "dependent" as per Rule 2(c) of the Rules of 1996. This inclusion serves the purpose of the Rules of 1996 and it is in consonance to the objects of the Rules. This inclusion is also not having any effect of amendment in the Rules. On the other hand, non-inclusion of "widowed daughter-in- law" in the ambit of dependents is having adverse effect on the purpose and objects of the statute concerned, as happening in present set of facts.
An apprehension may be there that "widowed daughter-in-law" may not support her in-laws family or dependents of the deceased government servant, but such apprehension is totally ill-founded. The Rules of 1996 clearly mentions that while making appointment on compassionate grounds concurrence of all other dependents of a deceased government servant is must. The Rule 5(b) of the Rules of 1996 also takes all necessary care of such eventualities. 16
The upshot of the consideration is that "widowed daughter-in-law" is a dependent of a government servant as defined under Rule 2(c) of the Rules of 1996. As such, this petition for writ deserves acceptance. Hence, the same is allowed. The decision of the respondents for not giving appointment to the petitioner on compassionate grounds as per the Rules of 1996 is declared illegal. The respondents are directed to appoint the petitioner as a Class-IV employee in accordance with the provisions of the Rules of 1996, on or before 14th October, 2011.
No order to costs.
( GOVIND MATHUR ),J.
kkm/ps.