Gaurav Bhatnagar vs State of U.P. and others

A.P. Sahi, J.—Hoard learned Counsel for the petitioner and the learned Standing Counsel.

The petitioner claims compassionate appointment whose mother died on 25th May, 2002. The petitioner was appointed but he was not being paid his salary. Upon a communication by the Accounts Officer, the District Basic Education Officer was informed that the petitioner was not qualified on the date of death of the employee and therefore his appointment being invalid, no salary can be paid.

Reference was made to the Government Order No. 5193/15-5-2000-400(222)/99. The date of the said Government Order is mentioned as 4.12.2000 whereas the compilation produced by the learned Counsel for the petitioner indicates the date as 4.9.2000. However, the contents being identical the said Government Order recites in Clause 3(5) that the appointment shall be offered to a candidate who has passed his Intermediate examinations on the date of the death of the employee.

Clause 3(5) is quoted herein below:

The petitioner passed his Intermediate examinations in the year 2006 and his results were declared in 2006 by which time he had also attained majority. He therefore applied on 18th August, 2006 seeking appointment on compassionate basis.

The aforesaid fact that the petitioner had presented the application after he became a major and after having passed the Intermediate Examinations is undisputed. In such a situation the factual basis of denying the claim to the petitioner that he was not qualified on the date of death of his mother does not arise at all.

Learned Counsel contends that not only this the said Government Order which has been relied upon the Finance and Accounts Officer itself indicates in Clause 3(8) that the dependant can move an application within five years of the date of death of the employee.

Clause 3(8) is quoted herein below:

Applying the aforesaid clause the petitioner was therefore well within his right to move an application within five years of the date of the death of his mother on 18.8.2006. This aspect of the matter has been overlooked by the Finance and Accounts Officer and therefore in my opinion, the denial of payment of salary to the petitioner is founded on an erroneous construction of the Government Order referred to by the Finance and Accounts Officer. If such an interpretation is given, then Clause 3(8) would become redundant.

The aforesaid stand taken in the counter-affidavit has been rebutted in the rejoinder affidavit and a prayer has been made in the writ petition for release of salary.

It is a well known principle of interpretation that, a meaning which advances the cause and reduces the mischief, should be assigned so as to allow the purpose of the rule to remain workable. Courts should avoid any interpretation that may render any part of the rule otiose and forge an intenment so as to signify a positive outcome without violating any other part of the rule. The rule making a provision for moving an application within five years therefore does not disqualify or prohibit a dependant to apply after acquiring the qualification within five years of the date of death. This reprieve of five years postulates such-contingencies, if not expressly, impliedly.

Take for example, a dependant is about to appear in the Intermediate Exams and simultaneously the death of the employee occurs. Can it be said that since he passed the exams after death, he would be ineligible? The obvious answer is No. The right to be considered on compassion accrues immediately on the death of the employee and Rule 3(8) extends the life of such accrual to a period of five years. Another example can be what would happen if the dependant fails in his exams but succeeds in the next term within five years. Such happenings are not unknown when a tragedy of death of the sole breadwinner upsets the members of the family where a dependant disturbed emotionally and financially looses concentration and fails in the exam. Can he not improve upon himself within five years and make an attempt to achieve his qualification? These are just illustrations to point out the logic behind the conclusions drawn hereinabove.

The possession of the qualification on the date of death as under Rule 3(5) has therefore to be understood accordingly and given an extended meaning so as to include all such dependants who acquire the qualification within five years before moving an application for consideration. The date of death should not be understood as only the actual date of death but also the forthcoming period of five years from the said date. A candidate dependant acquiring the qualification after the date of death therefore does not stand disqualified automatically without letting the period of five years run out.

Accordingly, in view of the conclusions drawn herein above and in view of the fact that the petitioner had been offered appointment, there is no occasion for the Finance and Accounts Officer to withhold the salary of the petitioner on the aforesaid construction of the Government Order as referred to in his communications. Accordingly, the writ petition is disposed of with a direction to the Basic Education Officer to proceed to pass an order with regard to payment of salary to the petitioner within eight weeks of the date of presentation of a certified copy of this order before him and shall also ensure the arrears of salary to the petitioner in the light of the observations made herein above.

The writ petition is disposed of accordingly.