- (1.) R. B. Misra, J. Heard Sri P. N. Saxena, learned Senior Counsel alongwith Sri Amit Saxena, learned Counsel for the petitioner and Sri Manish Goyal, learned Counsel for the respondents. In this petition prayer has been made for issuance of writ of mandamus commanding the respondents to appoint the petitioner as Assistant in Life Insurance Corporation (hereinafter in short called as 'corporation') on compassionate grounds under the Dying in Harness Rules applicable to the corporation.
(2.) THE facts necessary of adjudication of the present writ petition are that the petitioner's father Sri Mahendra Mishra was an Assistant Administrative Officer in the Corporation and while posted at Branch Office I, Deoria of Corporation died on 24-8-1994 leaving behind who sons including petitioner, one unmarried daughter and mother of the petitioner. THEreafter, the petitioner submitted an application dated 7-11-1994 (Annexure-1 to the writ petition) for appointment on compassionate ground claiming that the petitioner, his mother and unmarried sister were dependent upon late Sri Mahendra Mishra, while elder brother of the petitioner Sri Arvind Mishra was married and was in service and was not depend on the deceased employee. In the application of the petitioner for compassionate appointment in column 7 it was mentioned no dependent member of the family was in service. This application was forwarded on 7-12-1994 (Annexure No. 2 to the writ petition) by the Branch Manager, Deoria of the Corporation to the Manager, Regional Office, Gorakhpur, however, the claim of the petitioner was rejected by the Corporation on 17/19/4/1995 (Annexure-3 to the writ petition ). THE petitioner's mother i. e. , widow of the deceased employee made a representation (Annexure-4 to the writ petition) to the Senior Regional Manager of the Corporation, which too was rejected on 11-3-1997 (Annexure-7 to the writ petition ). In these circumstances the present writ petition has been filed. Counter-affidavit has been filed indicating that the Corporation has framed regulation known as Life Insurance Corporation of India (Staff) Regulations, 1960 (hereinafter in short called as the 'regulation, 1960' ). In exercise of powers vested under Regulation 4 of the Regulation, 1960 the Chairman has issued instructions called as 'life Insurance Corporation of India (Recruitment of Class III and Class IV Staff) Instructions, 1979' (hereinafter in short called as the 'instructions, 1979') indicating the mode of appointment on compassionate grounds. Clause 21 of the Instructions, 1979 provides as under : "relaxation IN FAVOUR OF NEAR RELATIVES OF AN EMPLOYEE WHO DIES WHILE IN SERVICE OR RETIRES AT LEAST 5 YEARS PRIOR TO THE DATE OF SUPERANNUATION : (i) There shall be relaxation in upper age limits and educational qualifications in favour of near relatives as defined in (ii) below, of an employee who dies while in service as prescribed in Annexure-III hereto. While an employee is retired prematurely under Regulations 19 (3) of the (Staff) Regulations, on health grounds or on being incapacitated for continuous service at least five years before the date of his superannuation, compassionate appointments may be made of one of the relatives mentioned in (ii) below subject to the candidate satisfying all the requirements as prescribed for appointments in the event of death while in service, such appointment may also be made where an employee is retired prematurely at least five years before the date of his superannuation not for any misconduct but for poor performance. (ii) Such relaxations shall be admissible only in favour of a spouse, son or unmarried daughter of the employee. (iii) The relaxations shall be admissible only where none of the members of the family spouse son or unmarried daughter is gainfully employed. However, if the widow is already employed elsewhere in private sector she will be allowed to take up a job in the Corporation in Class-II or Class-IV cadre commensurate with her qualifications if she opts for the same. (iv) The relaxations shall be admissible either to the spouse or to one of the children as specified. (v) The relaxations shall be admissible only if a request is received from the relative who satisfies the conditions of minimum educational qualifications, age etc. as prescribed, within a period of one year from the date of death of the employee or early retirement as specified. Provided that the time limit on one year may be extended in the cases satisfied below: (a) A widow may be allowed upto 5 years from the date of death of her husband to secure the prescribed qualification for appointment to Class-III post in the Corporation. (b) A major son or unmarried daughter who satisfies the qualification for appointment to Class-IV post, may be allowed upto two years from the date of death to secure prescribed qualification for a Class-III post if he/she so desires. (c) Upto three years from the date of death where all the children are minor. " In reference to the provisions and instructions provided under 'instructions, 1979', it has been pleaded on behalf of Corporation that since one son of the deceased employee was admittedly employed, therefore, under Instruction 21 (iii) the petitioner was not entitled to be given appointment on compassionate ground. A reference of the circular dated 29-12-2001 is indicated as below: "circular No. MPPR7r Desk/zd/3/2001) 29th December, 2001. ALL ZONAL MANAGER AND SR. DIVISIONAL MANAGERS IN-CHARGe Re : Employment on compassionate ground Amendment to Clause 21 (iii) of LIC of India (Recruitment of Class-III and IV Staff) Instruction, 1993. Clause 21 of LIC of India Recruitment (of Class III and Class IV Staff) Instructions, 1993 lays down conditions for appointment on compassionate ground of spouse, son or unmarried daughter in case of death of an employee while in service, allowing certain relaxations as stipulated in the said instructions, in respect of age, educational qualification etc. such appointment is considered only when none of the dependents of the deceased employee's family is gainfully employed, as per Clause 21 (iii) of the Instructions. There have been instances where some employees have been killed by miscreants criminals during the course of their performing official duties like carrying cash to the bank or safeguarding, as security personnel, the property of the corporation. As a token recognition for such employees; act of dedication and commitment to the corporation, in such instances, it has been decide to amend Clause 21 (iii) of the LIC of India Recruitment (of Class III and IV Staff) Instructions as follows to allow appointment on compassionate grounds to one of the dependent family members, defined therein, waiving the condition that none of the dependent family members should be gainfully employed. "the relaxations shall be admissible only where none of the members of the family i. e. , spouse, son or unmarried daughter is gainfully employed. However, if the widow is already employed elsewhere in the Private Sector, she will be allowed to take up a job in the Corporation in Class III or IV commensurate with her qualification if she opts for the same. Further provided that the condition regarding gainful employment shall not be applicable where it is established by documentary evidence that the death of the employee is caused by acts of miscreants/criminals while performing his/her official duties or during the course of his/her employment. Provided further that this provision is meant only to recognize the act of courage and bravery displayed by such an employee. " Note of this amendment may be taken for dealing such appointment in future at your end. Executive Director (Personnel)" This circular has not been challenged and the circular has been issued to supplement the rules, as it has binding effect like rules as contended by the respondents.
(3.) IT has been argued on behalf of the petitioner that the petitioner is fully qualified for appointment to the post of Assistant in the Corporation and the mother being a widow of the deceased employee since declined to make any claim for appointment on compassionate ground and one brother already in service is separately living and has no connection with the petitioner and by virtue of many of the appointments of dependents of deceased employees in similar circumstances made by the corporation, the petitioner in reference to the provisions of Articles 14 and 16 of the Constitution is entitled for compassionate appointment. It has further been argued on behalf of the petitioner : (a) The instructions 21 (III) as a whole, only means that if the member of the family of the deceased employee spouse, sons or unmarried daughter applying for appointment on compassionate ground, one shall be entitle to such employment, however, an exception has been made in the case of widow to the extent that if she is employed in 'private Sector', she may be allowed to take up the job on compassionate ground, if she so opts. (b) Employment of one member of family of the deceased shall not debar for employment of another member on compassionate grounds the first clause of this instruction is qualified by the second clause, which starts with the word, however, thus the second clause explains the first clause and the entire instruction is to be read as a whole and word 'members' of the family should be read as dependent members of the family of the deceased employee. (c) Not giving employment to the unemployed dependent of the deceased employee shall frustrate the spirit and provisions for compassionate appointment. (d) The provisions of the compassionate appointment of the corporation is so interpreted, so that the purpose of provisions may be achieved in reference to J. T. 1996 (6) SC 268, S. Gopal Reddy v. State of Andhra Pradesh. (e) If the word capable of two meanings, the capable of being interpreted or giving two meanings in respect of beneficial legislation or statute, one, which is in favour of the petitioner, is to be treated and recorded as the principle preposition and interpretation in reference to JT 1995 (9) SC 644, Union of India and another v. Pradeep Kumari and others, and JT 1996 (4) SC 656, Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma and others v. K. Devi and others. (f) In U. P. Act No. 13 of 1972 U. P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1971 provides definition of family in Section 3 (g) of the Act, as under: "family in relation to a landlord or tenant of a building means, his or her : (i) Spouse. (ii) Male Lineal Descendant. (iii) Such Parents, Grand Parents and any unmarried or widowed or divorced or judicially separated daughter of male lineal descendants, as may have been normally residing with him or her, And includes in relation to a landlord any female having a legal right of residence in that building. (g) This definition of family in U. P. Act No. 13 of 1972 does not include other relations like younger brother dependent on the landlord or tenant, a widowed Bhabhi, a dependent mother-in-law or father- in-law of tenant or landlord or any other relation but this Court as well as the Supreme Court while considering the need of the landlord or tenant has successively held that inspite of the definition given in the 'act', the word family is to be given a meaning, which advances the purpose of the 'act' and held that need for accommodation for the Bhabhi of the landlord or to other members of his family in general sense shall also be treated as member of family of the landlord and the accommodation under tenancy could be released for their need. Under definition of 'family' in Act No. 13 of 1971, the daughter-in-law of the tenant is not a member of the family though she may be residing with her husband as the member of the family of the tenant, the definition also does not include any female relation having a legal right of residence in the building so far as the tenant is concerned, yet this Court has treated them as members of the family and their needs have also been held to be the need of landlord or tenant as the case may be. In view of the above as contended on behalf of the petitioner that a word or expression in a statute is to be interpreted in the context or purpose for which the statute is framed. (h) According to the petitioner if in instruction 21 (III) the word 'family' is interpreted to include all sons, unmarried daughters of the deceased, whether dependent on him or not and if one of such members who was not dependants on the deceased was employed, the dependents shall stand excluded and the purpose of the compassionate appointment shall stand defeated, thus the word the members of the family have to be interpreted as members of the family dependant upon the deceased and in case none of the dependent members of the deceased is gainfully employee only then one of the dependent shall be given compassionate appointment shall be reasonable interpretation, which shall advance the purpose of this statutory provision for compassionate ground. (i) It has been asserted on behalf of the petitioner that Sri Ashwini Kumar Srivastava while working as an Administrative Officer in the Corporation at Faizabad Branch, Lucknow expired in June, 2001 and his elder son Sri Abhijit Srivastava was though already in service in the Intelligence Bureau under the Central Government, his younger son Sri Tushar Srivastava was given appointment on compassionate ground as an Assistant in the Corporation at Faizabad in February, 2002.;