Devi Prasad Singh, J.@mdashThe present writ petition has been preferred under Article 226 of the Constitution of India for appointment on compassionate ground under the provisions of the Uttar Pradesh Recruitment of Dependents of Government Servants (Dying in Harness) Rules, 1974 (in short, ''1974 Rules'').
The petitioner''s father who was Ganna Gram Sewak, died in harness on 17.9.1987. After his death, the petitioner''s mother had moved application dated 19.12.1987 a copy of which is contained in Annexure No. RA-1 with the prayer that her son i.e., the petitioner who was minor at that time, may be considered for appointment on compassionate ground after he attains majority. The application submitted by the petitioner''s mother remained undisposed of by the respondents. Thereafter on 27.8.1994 the petitioner applied for appointment on compassionate ground under the Rules. The application for appointment has been rejected by the impugned order dated 21.3.1997. Feeling aggrieved, the present writ petition has been filed.
2. While assailing the impugned order, it has been submitted by the petitioner''s Counsel that the impugned order has been passed arbitrarily without applying mind to the facts and circumstances of the petitioner''s case. It has also been submitted that the State Government was competent to condone the delay and relax the age. Under the 1974 Rules, the application could have been moved within 5 years from the date of death of the Government employee. Meaning thereby, in case the application would have been moved upto 1992, the petitioner could have been appointed on compassionate ground. However, since the petitioner attained majority at later stage, the application was moved in the year 1994 which has been rejected by the impugned order. While rejecting the application it has been observed by the authority that no justifiable reason has been found to relax the time limit provided in the 1974 Rules for petitioner''s appointment since the application was moved after lapse of 5 years.
3. On the other hand, learned standing Counsel relied upon the judgment of the Hon''ble Supreme Court in
4. Provisions with regard to appointment on compassionate ground, is governed by Rule 5 of the 1974 Rules. For convenience, Rule 5 of the 1974 Rules is reproduced as under:
Recruitment of a member of the family of the deceased--(1) In case a Government servant dies in harness after the commencement of these Rules, one member of his family who 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 shall, on making an application for the purpose, be given a suitable employment in Government service which is not within the purview of the State Public Service Commission in relaxation of the normal recruitment rules, if such person: (1) Fulfils the education qualification prescribed for the post, (2) is also otherwise qualified for Government service, and (3) Makes the application for employment within five years of the date of death of the Government servant:
Provided that where the State Government is satisfied that the time limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.
(2) As far as possible such an employment should be given in the same department in which the deceased Government servant was employed prior to his death.
5. The 1974 Rules has been framed in pursuance to power conferred by Article 309 of the Constitution of India. It has got statutory force. In case an application is moved after lapse of five years, then it shall be incumbent on the State Government to consider each and every case keeping in view the undue hardship of the dependent of a Government employee. In the present case, while passing the impugned order the competent authority of the State Government, has acted mechanically and the applications of as many as 10 dependents of Government servants have been rejected by a combined order with the observation that there is no justification to appoint the applicants under the 1974 Rules. The authority while passing the impugned order has not applied its mind to the undue hardship of the applicants and seems to have acted in contravention of the spirit of the proviso of Rule 5 of the aforesaid Rules. It was incumbent on the authorities that instead of passing a mechanical order rejecting 10 applications at one stroke of pen, he should have applied his mind while passing the order after considering the individual case keeping in view the proviso of the 1974 Rules.
6. Needless to say that now, it is tirte in law that right to livelihood is fundamental right. The 1974 Rules extend statutory right to dependents of deceased employees to be considered for appointment on compassionate ground in the Government job. Like in the present case, it shall always be incumbent on the State authority to apply mind keeping in view the letter and spirit of the statutory provision by considering the individual hardship. At the face of record, the individual cases have not been considered by applying mind to individual hardship of the petitioner. Hence the impugned order seems to be not sustainable, being passed without application of mind.
7. It is very well settled rule of construction that while interpreting statutory provisions, every word, every line and para of the statutory provisions should be considered and given full meaning. It is also settled proposition of law that a provision should not be read in isolation and it should be read in reference to context. According to Maxwell, on the Interpretation of Statutes (12th edition, page 36) any construction which may leave without effecting any part of the language of a statute should ordinarily be rejected. Relevant portion from Maxwell on the Interpretation of Statutes (12th edition page 36) is reproduced as under:
A construction which would leave without effect any part of the language of a statute will normally be rejected. Thus, where an Act plainly gave an appeal from one quarter sessions to another, it was observed that such a provision, though extraordinary and perhaps an oversight, could not be eliminated.
In view of above, the Court should always avoid interpretation, which would leave any part of the provision to be interpreted without effect. While doing so every clause of a statute is to be construed with reference to the context and other clauses of the Act to make a consistent enactment of the whole statute. According to Maxwell (supra at page 47), statutory language should not be read in isolation but in its context.
8. While referring a decision of House of Lords in AG v. HRH Prince Ernest Augustus 1957 (1) All ER 49 (HL), in a famous treasise. Principles of Statutory interpretation by Justice G.P. Singh, the views of Lord Ticker has been discussed with approval as under (9th Edition page 34):
In an appeal before the House of Lords, where the question was of the true import of a statute, the Attorney-General wanted to call in aid the preamble in support of the meaning which he contended should be given to the enacting part, but in doing so was met by the argument on behalf of the respondent that where the enacting part of a statute is clear and unambiguous, it cannot be controlled by the preamble which cannot be read. The House of Lords rejected the objection to the reading of the preamble. Although, ultimately it came to the conclusion that the enacting part was clear and unambiguous. VISCOUNT SIMONDS (LORD TUCKER agreeing) in that connection said: "I conceive it to be my right and duty to examine every word of a statute in its context, and I use context in its widest sense as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern that the statute was intended to remedy.
9. Learned author (supra) again proceeded to consider the judgment of Australian High Court and views of Lord Steyn in a case in R. V. National Asylum Support Service 2002 (4) All ER 654, (page 35) to quote:
As rghtly pointed out by the High Court of Australia, "the modem approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses context in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means-one may discern the statute was intended to remedy " LORD STEYN recently expressed the same view as follows: "The starting point is that language in all legal texts conveys meaning according to the circumstance in which it was used. It follows that context must always be identified and considered before the process of construction or during it. It is therefore wrong to say that the Court may only resort to evidence of the contextual scene when an ambiguity has arisen.
10. Thus, the exposition ''ex visceribus actus'' is a long recognized rule of construction. Words in a statute often take their meaning from the context of the statute as a whole. They are, therefore, not to be considered in isolation. Hon''ble Supreme Court in a case in "Mohan Kumar Singhania v. Union of India AIR 1992 SC 1, " has proceeded to hold as under;
However, it is suffice to say that while interpreting a statute the consideration of inconvenience and hardships should be avoided and that when the language is clear and explicit and the words used are plain and unambiguous, were are bound to construe them in their ordinary sense with reference to other clauses of the Act or Rules as the case may be, so far as possible, to make a consistent enactment of the whole statute or series of statute/Rules/Regulations relating to the subject-matter. Added to this, in construing statute, the Court has to ascertain the intention of the law making authority in the backdrop of the dominant purpose and underlying intendment of the said statute and that every statute is to be interpreted about any violence to its language and applied as far as its explicit language admits consistent with the established rules of interpretation.
The aforesaid settled rule of interpretation has been affirmed by the Apex Court from time to time in various cases including
11. One of the arguments advanced by the respondents'' Counsel relying upon the judgment of the Hon''ble Supreme Court in the case of Sajad Ahmed Mir (supra) is that now after lapse of so many years, the petitioner''s case cannot be considered for appointment on compassionate ground. I am afraid to accept the argument advanced by the respondents'' counsel. It is settled law that one should not put to suffer on account of the fault of Court. Corollary to it, because of pendency of litigation one should not be put to suffer. The writ petition was filed in the year 1997. It could not have been decided at an early date not because of the fault of the petitioner but because of the pendency of the case in this Court for one reason or the other. Accordingly, I am of the view that the petitioner''s statutory rights under the rules, cannot be thrown out only because of the pendency of the writ petition in this Court, more so, when the right of livelihood is fundamental right guaranteed under Article 21 of the Constitution of India.
12. In a case in
Right to live with dignity, right to quality of life and right to livelihood are fundamental rights guaranteed under Article 21 of the Constitution of India vide
13. Now coming to the case of Sajad Ahmed Mir (supra) relied upon by the learned standing Counsel, it shall be appropriate to reproduce the relevant portion of para 5 of the said judgment as under:
5. From the record, it is clear that in 1996, the decision was taken that the applicant could not be appointed on compassionate ground and it was conveyed to the applicant. That action was never challenged. In 1999, the petition was filed. According to the learned Judge, once on consideration of facts and circumstances, a conscious decision was taken and the prayer was turned down, no case was made out by the applicant so as to entitle him to get relief and accordingly the petition was dismissed.
14. The facts and circumstances of the present case are entirely different from the case of Sajad Ahmed Mir (supra). In the present case, immediately after rejection of the application, the petitioner approached this Court under Article 226 of the Constitution of India, and the same remained pending in this Court for adjudication. Since the right to livelihood available to the petitioner is fundamental right coupled with statutory right to be considered under Rule 5 of the 1974 Rules, the petitioner''s case for appointment on compassionate ground cannot be thrown, out because of pendency of the writ petition in this Court since 1997.
15. In case the writ petitions are dismissed and the litigants are deprived of their statutory rights only because of the pendency of the writ petition in this Court, it shall amount to deprive the litigants of their due rights and people shall lose faith in dispensation of justice.
16. The writ petition is pending in this Court since 1997. The fault lies with the system where a litigant has been failed to get justice because of no fault on his part. In case there is any fault i.e. on the part of Court that failed to decide the case within reasonable time may be for the reason not within control.
Accordingly, Legal Maxim actus curiae means "an act of the Court shall prejudice no man." The maxim is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law". Herbert Broom in his famous treatise Legal Maxims observed as under:
In virtue of it, where a case stands over for argument on account of the multiplicity of business in the Court, or for judgment from the intricacy of the question, the party ought not to be prejudiced by that delay, but should be allowed to enter up his judgment retrospectively to meet the justice of the case.
Learned Author again proceeded to observe as under:
The preceding examples will probably be sufficient to illustrate the general doctrine, which is equally founded on common sense and on authority, that the act of a Court of law shall prejudice no man; and in conformity with this doctrine, it has been observed, that, as long as there remains a necessity, in any stage of the proceedings in an action, for an appeal to the authority of the Court, or any occasion to call upon it to exercise its jurisdiction, the Court has, even if there has been some express arrangement between the parties, an undoubted right, and is, moreover, bound to interfere, it perceives that its own process or jurisdiction is about to be used for purposes which are not consistent with justice.
17. There is one more Legal Maxim which comes in the aid of petitioner and i.e. ubi Jus ibi remedium means there is no wrong without a remedy. According to Broom''s (supra) if a man has a right, he have a means to vindicate and maintain it. The Maxim ubi jus ibi remedium has been considered to be very valuable and has led to the invention of various forms of actions and principles by Courts to do justice.
18. While considering the Maxim Herbert Broom in his famous treatise (supra) proceeded to observe as under:
''''The common law lives and grows, and while only a bold man will say that the maxim is to-day of universal application and that novelty can never defeat a claim new in principle, at least it can justly be claimed that "although we have not yet discovered any general principle of liability, the law is slowly but surely moving in that direction.
The learned author again proceeded to observe as under:
Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it liability to repair its necessary or natural consequences, in so far as these are injurious to the person whose rights are infringed, whether the motive which prompted it be good, bad or indifferent.
19. Accordingly, merely because the writ petition could not be decided within reasonable time and is pending since last 11 years controversy cannot be left remedyless. The statutory right available to the petitioner shall not be extinguished only because the writ petition could not be decided earlier.
20. In view of the above, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the order dated 21.3.1997 contained in Annexure No. 1 to the writ petition with consequential benefits. A writ in the nature of mandamus is issued commanding the opposite parties to consider the petitioner''s case for appointment on compassionate ground afresh keeping in view the letter and spirit of the proviso to Rule 5 of the 1974 Rules and pass a speaking and reasoned order expeditiously and preferably within two months from the date of receipt of a certified Copy of this order and communicate the decision.
No orders as to costs.
