Herald Hamilton v. State of Rajasthan — 1987 DIGILAW 519 (RAJ)

P.C. JAIN, J.—In this writ petition, the petitioner has prayed to issue a writ of certiorari and/or mandamus or any order or direction to quash the orders of the State Government dated 9th November, 1984 (Annx. 1), 21st November, 1986 (Annx. 8) and 4th December, 1986 (Annx. 9) and to direct the respondents to give appointment to the petitioner on the post of a clerk in the service of the State of Government. 2. The brief facts, as pleaded in the writ petition, are that the petitioners elder sister late Miss Litishea Hamilton was employed as an Auxilliary Nurse Midwife at Bhinay, District Ajmer. While she was in the employment, on the mint of 2nd and 3rd September. 1978. she (late Miss Litishea Hamilton) was raped and burnt in her staff quarter in the hospital compound at Bhinay. She ultimately died on 5th September, 1978. In the beginning of the year 1980, the petitioner had applied to the State Government and the Director of Medical & Health Services Rajasthan, Jaipur for granting employment to him in place of his deceased sister under the provisions of the Rajasthan Recruitment of Dependants of Government Servants Dying While in Service, Rules, 1975 (for short, the Rule of 1975) which regulate the recruitment of the dependants of Government servants dying while in service. The Rules apply to recruitment of the dependants of the deceased government servant in public services and posts in connection with the affairs of the State except services and posts which are within the purview of the Rajasthan Public Service Commission. The State Government by order dated 9th November, 1984, refused to give employment to the petitioner on the ground that his late sister was unmarried and, as such had no dependants and further that the petitioner was not dependant upon her being her brother. Thereafter the petitioner and his father made several representations for giving the petitioner employment, in the Amrit Kaur Hospital, Beawar as a clerk. Ultimately, the State Government by orders dated 21st November, 1986 and 4th December, 1986, informed the petitioner that the rules do not permit to give any employment to him. The main ground on which the State Government refused to give employment under the said Rules was that late Miss Litishea Hamilton was unmarried and, therefore, no body could be considered to be her dependant. The main ground on which the State Government refused to give employment under the said Rules was that late Miss Litishea Hamilton was unmarried and, therefore, no body could be considered to be her dependant. Being aggrieved by the said orders, the petitioner has filed this writ petition. 3. On 20th March, 1987, when the case came up for admission, this court issued notice to the respondents as to why the writ petition be not admitted and allowed. After service of the notice, the learned Asstt. Government Advocate prayed for three weeks time to file reply. The time prayed for was allowed by order dated 12th May, 1987 and it was directed that reply may be filed by re-opening of the courts after vacation, and in case no reply is filed, it shall be assumed that the respondents do not wish to file any reply and the case would be heard and disposed of on that basis. On 10th July, 1987, the learned Additional Government Advocate argued the case without filing any reply. Thus, we assume that the incontroverted facts stated in the petition are true and correct. 4. For the purpose of proper appreciation of legal points involved in the case, we reproduce the relevant rule of the said Rules of 1975, as follows:- "2(f) "family" means the family of the deceased Government servant and shall include wife or husband, sons and unmarried or widow daughters, who were dependant on the deceased Government servant." "3. Application of the rules:- These Rules shall apply to recruitment of the dependants of the deceased Government servants to public services and posts in connection with the affairs of State, except services and posts which are within the purview of the Rajasthan Public Service Commission." "5. Application of the rules:- These Rules shall apply to recruitment of the dependants of the deceased Government servants to public services and posts in connection with the affairs of State, except services and posts which are within the purview of the Rajasthan Public Service Commission." "5. Recruitment of a member of the family of the deceased:- In cases of Government servants, who die while in service on or after the commencement of these rules, one member of his family who is not already employed under the Central/State Government or Statutory Board/Organisation/Corporations owned or controlled by the Central/State Government, shall, on making an application for the purpose, be given a suitable employment in Government service without delay only against an existing vacancy, which is not within the purview of the State Public Service Commission, in relaxation of the normal recruitment rules, provided such member fulfills the educational qualifications prescribed for the post and is also otherwise qualified for Government service. In the event of non-availability of a vacancy or any of the members of the family, being unqualified or minor is not found suitable or eligible for immediate employment, then such cases should be considered immediately on the availability of the post or any of them becomes qualified or eligible for such employment under these Rules." 5. Relying upon the said rules, it is urged by Shri Kamlakar Sharma, learned counsel for the petitioner, that the petitioner was the brother of late Miss Litishea Hamilton, the deceased Government servant, who was unmarried and was dependant upon her. At the time of her death, the petitioner, was unemployed and undertaking studies and his entire expenses were borne by his sister late Litishea Hamilton. Thus, Shri Kamlakar Sharma submits that in view of the fact that the petitioner was dependant upon late Miss Litishea Hamilton, who was the deceased Government servant, the said Rules are applicable and the petitioner is entitled to claim employment in Government service against any existing vacancy. Shri Sharma also submits that even otherwise the case of the petitioner is fully covered under the proviso, as he was a close relative of the deceased and entitles to the benefit of the Rules. On the other hand, Mrs. Shri Sharma also submits that even otherwise the case of the petitioner is fully covered under the proviso, as he was a close relative of the deceased and entitles to the benefit of the Rules. On the other hand, Mrs. Kamla Jain, learned Addl, Government Advocate, drew our attention to the definition of family and has submitted that the petitioner being brother of the deceased government servant, cannot be considered as a member of the family. The learned counsel wants to give restricted meaning to the word family and further submits that the case of the petitioner is not covered under this proviso added to rule 2(f) by amendment made vide Notification No. F. 3(6) Karmik/Ka-II/75 dated 22nd Feb, 1976 effective from 2nd October, 1975, which is as follows:- "Provided that if no such member of the family be eligible forgetting benefit under these Rules, the benefit available under these Rules may be extended to any other close relative of the deceased to be named by the widow or the Guardian of the children of the deceased with the specific approval of the Department of Personnel." 6. We have given our anxious consideration to the respective submissions made by the learned counsel for the parties. 7. The entire controversy, thus, hinges on the true and correct interpretation to be given to the word family as defined in the Rules. The definition states that family means the family of the deceased Government servant and shall include wife or husband, sons and unmarried or widow daughters who are depen dants on the deceased government servant. Thus, for the first part i. e. the family means "the family of the deceased government servant" and word "family" has no wider meaning than the ordinary accepted connotation of the word, which means members of a household. The latter part points out that the word includes, denotes extension and is used to denote the enlarged meaning of the word. 8. We, therefore, propose to examine as to what is the ordinary, accepted notion of family. The expression family has been the subject-matter of discussions in several decisions. In Price vs. Gould (1) which has been followed in India in the case of Nanak Chand Vs. Tara Devi (2), the observations of Weight J. are as follows :- "... the word family was a popular, loose and flexible expression, and not a technical term. The expression family has been the subject-matter of discussions in several decisions. In Price vs. Gould (1) which has been followed in India in the case of Nanak Chand Vs. Tara Devi (2), the observations of Weight J. are as follows :- "... the word family was a popular, loose and flexible expression, and not a technical term. It had been laid down that the primary meaning of the word family was children, but that primary meaning was clearly susceptible of wider interpretation . . . ." 9. The learned Judge while considering the meaning of family in Section 12, sub-section (l)(g) of the Increase of Rent and Mortgage Interest Restrictions) Act, 1920, observed as follows, by saying that the word— " includes brothers and sisters of the deceased living with her . . ." 10. In Govind Dass v. Kuldip Singh (3) the question arose whether the younger brothers, their wives and children were members of the family of the land-lord within S. 14(1) Proviso (e) of the Delhi Rent Control Act, 1958. A Bench consisting of H.R. Khanna CJ. and Prakash Narain J. after noticing that the Act had advisedly not defined the word family observed as follows:- "The concept of what constitutes a family when a number of persons are related or are living together is not something static or capable of concise definition. What constitutes a family in a given set of circumstances or in a particular society depends upon the habits and ideas of persons constituting that society and the religious and socio-religious customs of the community to which such persons may belong." 11. In Ram Parshad Singh Vs. Mukand Lal (4), it was held that in a given set up of social structure even nephews could be regarded as members of a landlords family. This judgment of the Punjab High Court and the case of Nanak Chand v. Smt. Tara Devi (Supra) followed the observations of Wright J. in Price V. Gould (Supra). 12. In Gudalaimuthu v. Palaniyandavan (5) a question arose as to whether a son-in-law can be regarded as a member of the family. It was contended that the word family is not to be construed in a narrow sense or meaning only a member of Hindu joint family. The Supreme Court accepted this contention. 12. In Gudalaimuthu v. Palaniyandavan (5) a question arose as to whether a son-in-law can be regarded as a member of the family. It was contended that the word family is not to be construed in a narrow sense or meaning only a member of Hindu joint family. The Supreme Court accepted this contention. The Supreme Court also relied upon dictionary meaning of the word family as given in Webesters New World Dictionary, wherein family has been given the meaning being a group of people related by blood or marriage, relatives. The Supreme Court, thus, observed that a person can, therefore, be properly regarded as being the member of his wifes family and not merely of his fathers family. 13. In Ram Charan Das Vs. Girja Nandini Devi (6), the Supreme Court had the occasion to interpret the word family and observed as follows:- "The word family in the context is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute., 14. In Baldev Sahai Bangia v. Shri R. C. Bratin (7) the Delhi High Court considered the meaning of the word family. The learned Court also relied upon the observations made in Price v. Gould (Supra). The learned court held that the word family is in itself a word of most loose and flexible description. It also observed that its exact scope must depend on its contest. 15. In view of the proposition of law laid down in the above referred cases and the context in which the word family appears in the definition and the intention of the Rule makers, we are of the opinion that it is a word of loose and flexible description and not a technical term. It is also obvious that its ambit has to be determined, having regard to the habits ideas and socio-economic milieu of the parties. It is also clear that it is not to be understood in a narrow sense of being a group of persons who are recognised in law having a right of succession or having a claim or right to a share in the property or meaning only a member of Hindu joint family. It is also clear that it is not to be understood in a narrow sense of being a group of persons who are recognised in law having a right of succession or having a claim or right to a share in the property or meaning only a member of Hindu joint family. We, therefore, hold that a brother living with the unmarried sister for the purposes of the Rules of 1975 in the facts and circumstances of the case, would constitute a member of the family of the unmarried sister. 16. From the pleadings, which have remained uncontroverted, it is evident that the petitioner who was living with his deceased sister Miss Litishea Hamilton was entirely dependant upon her. It appears that the respondents rejected the application of the petitioner for being appointed in accordance with the Rules of 1975, simply on the ground that the petitioner was the brother of the deceased Government servant and, as such, could not be regarded as her dependant. The claim for recruitment was denied to the petitioner on the simple ground that the petitioner was the brother of the deceased and was not dependant upon her. The Government took the view without considering the representation of the petitioner on merits, when in the representation, the petitioner made it clear that he was entirely dependant upon his deceased sister. In the writ petition also the petitioner has clearly pleaded that at the time of the death of his sister he was unemployed and was undertaking studies and the entire expenses of studies and his day-to-day expenses were borne by his sister late Litishea Hamilton. He further urged in the petition and categorically stated that he was totally dependant upon her as his father was not keeping well and had retired from business. The petitioner has further stated that his father too was dependant upon the petitioners sister at the time of her death. It is on record, which has not been controverted, that the petitioner was living with his sister in her staff quarter in the hospital compound at Bhinay. Thus, even for residence, the petitioner was entirely dependant upon his sister. In Govind Das Vs. Kuldip Singh (Supra) a broad meaning was given to the word dependant. It was observed that to restrict the word dependant to a mere financial dependant would amount to shutting out eyes to the structure of our society. Thus, even for residence, the petitioner was entirely dependant upon his sister. In Govind Das Vs. Kuldip Singh (Supra) a broad meaning was given to the word dependant. It was observed that to restrict the word dependant to a mere financial dependant would amount to shutting out eyes to the structure of our society. Though, in this particular case, the petitioner was for the purpose of finances and for the purposes of residence was entirely dependant upon his sister, the deceased government servant. In view of the survey which we have undertaken, we are of the opinion that the petitioner being the brother of the deceased government servant, in the facts and circumstances of the case, was a member of the family of the deceased government servant and was dependant upon the deceased government servant, Miss Litishea Hamilton, who was in the employment of the Government died while in service. She died on 5th September 1978, i. e. after the commencement of the Rules of 1975. Thus, the petitioner, in terms of Rule 3 read with Rule 5 of the Rules of 1975, is entitled to make an application for the purpose of giving him a suitable employment in government service against an existing vacancy which is not within the purview of the State Public Service Commission. On the part of the petitioner, the petitioner has approached the Government by making an application in accordance with the rules, and, therefore, we hold that the petitioner was entitled to be appointed on a suitable post. 17. The case of the petitioner is not covered under the proviso. Since the petitioners case is covered under Rules 3 and 5 of the Rules of 1975, as he is a member of the family of the deceased Government servant, Miss Litishea Hamilton and was dependant upon her, he is entitled to relief sought in the writ petition. 18. In the premises aforesaid, we allow the writ petition and quash the orders passed by the State Government, dated 9th November, 1984 (Annx. I), 21st November, 1986 (Annx. 8) and 4th December, 1986 (Annx. 18. In the premises aforesaid, we allow the writ petition and quash the orders passed by the State Government, dated 9th November, 1984 (Annx. I), 21st November, 1986 (Annx. 8) and 4th December, 1986 (Annx. 9) and we direct the respondents to give suitable employment in government service without delay against an existing vacancy, which is not within the purview of the State Public Service Commission, in relaxation of the normal recruitment rules provided the petitioner fulfills the educational qualifications prescribed for the post and is also otherwise qualified for government service. In case, such a post is not immediately available the case of the petitioner should be considered immediately on the availability of the post. 19. In the facts and circumstances of the case, the parties are left to bear their own costs.