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Allahabad High Court · body

1987 DIGILAW 1080 (ALL)

Subhwanti Devi v. Shiksha Adhikshika Basic Siksha Nagar Chetra South Malaka

1987-11-13

B.L.YADAV, S.K.DHAON

body1987
JUDGMENT B. L. Yadav, J. 1. The petitioner is the widow of one Ram Prakash Srivastava, who died in harness as Head Master in the Primary Basic School, Arail, Allahabad. The petitioner, being widow of the Head Master, who died in harness, made an application to the District Basic Shiksha Adhikari, Allahabad, respondent no. 2 under Rule 5 of the Employment of Dependents of Government Servants, Dying in Harness Rules, 1974 (for short the Rules of 1974). As the petitioner was a widow, hence she came within the definition of 'family' as given under Rule 2 (2-Ga). Respondent no. 2 directed the respondent no. 1 by his letter dated 15-3-78 (Annexure 1 to the petition), to appoint the petitioner on the post of 'Dai' in some Basic School. The petitioner was accordingly appointed by order dated 21-3-78 (Annexure 2 to the petition), as Dai in Primary Girls School, Attersuiya, in the pay scale of Rs. 165-2-185 on a temporary basis. She was, however, confirmed on that post by order dated 26-5-79 (Annexure 3) passed by Basic Shiksha Adhikshika, respondent no. 1. The petitioner received the order dated 16-5-87 (Annexure 4 to the petition), passed by respondent no. 1 indicating that her services have been terminated as she has re-married and she must hand over charge to the Incharge, Head Mistress. The petitioner has filed the present petition for a writ of certiorari under Article 226 of the Constitution of India, challenging the order dated 16-5-87, terminating her services. 2. Sri M. B. Saxena, learned counsel for the petitioner urged that the petitioner was appointed in view of the provisions of Rule 5 of the Rules of 1974 and there was no provision under that rule that the services of an employee appointed under that Rule can be terminated if she remarries. There was no such condition attached even in the letter of appointment (Annexure 2 to the petition), given to the petitioner. It was further urged that there was no such provision to terminate the services of an employee employed under the aforesaid Rule of 1974 neither in U. P. Basic Education Act, 1972, nor in U. P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group D Employees) Rules, 1984, (for short the Employees Rules, 1984). Under Rule 21 of the Employees Rules, 1984, the provision was that no clerk or Group D employee of a recognized school may be discharged or removed or dismissed from service or reduced in rank or subjected to demotion in emoluments or served with a notice of termination of service except with the prior approval in writing of the District Basic Education Officer. Rule 23 of the Employees Rules 1984 deals with disciplinary proceedings of Group D employees and indicates that the rules applicable to an Assistant Teacher of a Basic School shall be applicable. There is the U. P. Recognized Basic Schools (Junior High School) Recruitment and Conditions of Service of Teachers Rules, 1978 (for short the Rules of 1978). Rule 16 of the Rules of 1978 deals with the disciplinary proceedings and provides that in respect of disciplinary proceedings and punishment to be inflicted in such proceedings in respect of a teacher or an Assistant Teacher, as the case may be, of a recognized school shall be governed by the rules applicable to Head Master and Assistant Teacher of a Basic School established or maintained by the Board. But the U. P. Basic Education Teachers Service Rules, 1981, does not make any provision for disciplinary proceedings. In view of this provision it was urged that there was no provision for terminating the services of the petitioner in case she re-married. It was further urged that the petitioner has, in fact, not re-married, but some anti social elements committed a rape on her in view of her helplessness as she was the only member in her family, and she has made a report and an application to that effect. On behalf of the respondents and the State, the Standing Counsel urged that the petitioner's services have correctly been terminated, and she was appointed under the Rules in place of her deceased husband, hence it was implicit in her appointment that she would not re-marry. 3. Having heard the learned counsel for the parties we are of the opinion that there appears to be substance in the submissions of the learned counsel for the petitioner. As the petitioner was employed as a 'Dai' in Class 'D' category and her services were governed by the service rules framed for the purpose, the respondents cannot act beyond what has been provided under the rules. 4. As the petitioner was employed as a 'Dai' in Class 'D' category and her services were governed by the service rules framed for the purpose, the respondents cannot act beyond what has been provided under the rules. 4. In General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36, it was observed as follows :- "If that be so, there would be no difficulty in holding that the matters relating to employment must include all matters in relation to employment both prior, and subsequent, to the employment which are incidental to the employment and form part of the terms and conditions of such employment." In Air India v. Naresh Meerza, AIR 1981 SC 1829 , it was held as follows : "The service conditions and regulations of an employee prevail unless any particular service regulations or rules is held ultra vires, invalid or discriminatory." 5. In the instant case as the Rules of 1974 were specially made by the State of U. P. to provide employment to the dependants of an employee who dies in harness, there must have been some provision under Rule 2, the definition clause. But the definition clause was only to the extent that the word 'family' includes wife or the husband. The basis of the impugned order appears to be the assumption by the Shiksha Adhikshika, the respondent no. 1, as if there was a Proviso added to Rule 2 or 5 that in case the widow of the deceased employee marries again, she would disentitle herself for the service. But the respondent no. 1 or any other authority or even the Court has no power or jurisdiction to add a Proviso to a particular statutory provision. Under the U. P. Basic Education Act, 1972 or the Employees Rules, 1984, or the Rules of 1978 or the Rules of 1981, there was no such provision that in case the wife or a widow of an employee re-marries, she would not be retained in service. These Rules are silent about such provision. 6. It would not be out of place to refer to some elementary rules of interpretation. A statutory provision need not be interpreted in such a way as to extend it deliberately to meet a case for which no provision has clearly and undoubtedly been made. These Rules are silent about such provision. 6. It would not be out of place to refer to some elementary rules of interpretation. A statutory provision need not be interpreted in such a way as to extend it deliberately to meet a case for which no provision has clearly and undoubtedly been made. The court must try to give effect to the intention of the Act or Rules and further it must adhere to the language used, it cannot add words to a Statute or read words into it which are not there. No case can be found to authorise any court to alter a word so as to produce a 'Casus Omissus'. Statutory principle is that court must promote the object and purpose of the statutory provision or the Rules. In the present case the object of the Legislature was to provide employment to the widow of the deceased husband, Remarriage may be a social or a biological human-necessity or it may be on account of oppressive or aggressive nature of certain anti-social elements, but that cannot be made the basis for termination of service. This appears to be the reason behind the wisdom of legislature not adding any Proviso to Rule 2. (See Girdhari Lal and Sons v. Balbir Nath Mathur, AIR 1986 SC 1499 = (1986) 1 SCR 383 , Fisher v. Bell, (1961) 1 QB 394, Major and St. Mellons R.D.C. v. New Port Corporation, (1952) A.C. 189, R. v. Wimbledon Justices, (1953) 1 QB 380). In the relevant Rules as enacted dealing with disciplinary proceedings, remarriage has not been mentioned as one of the misconduct, disqualifications or disabilities. We are accordingly of the view that unless there was a specific provision providing that the services of the petitioner could be terminated in case she re-marries the termination order cannot be sustained. 7. The matter can be viewed from another angle also. Before passing the termination order the petitioner was not given any opportunity nor she was given any charge sheet and she was not heard in support of the proposed order of termination. The order was accordingly in violation of the principles of natural justice. 7. The matter can be viewed from another angle also. Before passing the termination order the petitioner was not given any opportunity nor she was given any charge sheet and she was not heard in support of the proposed order of termination. The order was accordingly in violation of the principles of natural justice. Under Rule 21 of the Employees Rules, 1984, no group D employee can be discharged or removed or dismissed from service or reduced in rank or served with any notice of termination of service except with the prior approval of the District Basic Education Officer in writing. In the instant case there was nothing to indicate - either in the impugned order or otherwise that prior approval in writing of the District Basic Education Officer was obtained. Similar are the provisions under Rule 15 of the Rules of 1978 dealing with service of teachers of recognized basic schools. In any view of the matter, the impugned order appears to be manifestly erroneous, without any power or authority and the same has been passed in violation of the principles of natural justice. 8. In view of the premises as indicated before, the present petition succeeds and is allowed. The impugned order dated 16-5-87 is hereby quashed and as an inescapable corollary she would be treated in continuous service. Under the circumstances, however, we refrain from making any order as to costs. Petition allowed.