Suman Devi vs State Of U.P. And Others
2014 Latest Caselaw 1358 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 34
 

 
Case :- WRIT - A No. - 64084 of 2006
 

 
Petitioner :- Suman Devi
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Kshetresh Chandra Shukla
 
Counsel for Respondent :- C.S.C.,Anuj Kumar,S.D. Sahai
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard learned counsel for petitioner and perused the record.

2. The writ petition is directed against order dated 10.10.2006, passed by District Magistrate, Sant Kabir Nagar, whereby it has rejected representation of petitioner challenging selection of respondent no. 5, Smt. Sonu Yadav, on the post of Shiksha Mitra.

3. Contention of petitioner is that Government Order dated 10th October, 2005, in paragraph 10, prohibits certain categories of family members of Gram Pradhan and in view thereof, respondent no. 5 being wife of brother of Gram Pradhan was also disqualified to be selected for Shiksha Mitra, in view of aforesaid provision.

4. The only question which has to be seen is whether Smt. Sonu Yadav, "wife of brother of Gram Pradhan" comes within the category of members of family as described in paragraph 10 of Government Order dated 10th October, 2005, so as to become ineligible for appointment as Shiksha Mitra in Primary School, Dharaichi, Block - Khalilabad, District - Sant Kabir Nagar.

5. A copy of Government Order dated 10.10.2005 is on record as Annexure No. CA-1 to the counter affidavit filed on behalf of respondents no. 1, 2 and 3. Clause 10 thereof reads as under :-

Þf'k{kk lfefr ds lHkkifr o lfpo ds fudV laca/kh dk p;u f'k{kk&fe= ds :i esa ugha fd;k tk;sxkA lacaf/k;ksa dk rkRi;Z firk] nknk] 'olqj ¼fir` ,oa ek= laca/kh½ iq=] iq=o/kw] ikS=] nkekn] HkkbZ] cgu] ifr] iRuh] iq=h rFkk eka ls gSAß

English Translation by the Court :

"Selection of near relatives off President and Secretary of Shiksha Samiti shall not be made as Shiksha Mitra. Relatives mean father, grand father, father-in-law (maternal and paternal), son, daughter-in-law, grand son, son-in-law, brother, sister, husband, wife, daughter and mother."

6. The aforesaid clause is pari-materia to clause 10 of the earlier Government Order dated 01.07.2000, with only difference that earlier "daughter-in-law" i.e. "wife of son" was not included, but that has now been included in the new description of members of family. For the purpose of convenience, paragraph 10 of earlier Government Order dated 01.07.2000 is also reproduced as under to show that it is in all other respect pari-materia :-

Þf'k{kk lfefr ds lHkkifr o lfpo ds fudV laca/kh dk p;u f'k{kk&fe= ds :i esa ugh fd;k tk;sxkA lacaf/k;ksa dk rkRi;Z firk] nknk] 'olqj ¼fir` ,oa ek= laca/kh½ iq=] ikS=] nkekn] HkkbZ] cgu] ifr] iRuh] iq=h rFkk eka ls gSAß

English Translation by the Court :

"Selection of near relatives off President and Secretary of Shiksha Samiti shall not be made as Shiksha Mitra. Relatives mean father, grand father, father-in-law (maternal and paternal), son, grand son, son-in-law, brother, sister, husband, wife, daughter and mother."

7. In respect of earlier Government Order dated 01.07.2000, the question came up for consideration before this Court whether the description of family members is inclusive or exhaustive. In other words, whether any other relative can be included, though not specifically mentioned in the aforesaid provision. This aspect has been considered by this Court in Smt. Kusum Singh Vs. State of U.P. and Others (Civil Misc. Writ Petition No. 40677 of 2004, decided on 19.09.2006) and relying on a Division bench decision rendered in Gyan Pratap Singh Vs. State of U.P. and Others [2005 (2) Education Service Cases 1199], wherein also pari-materia aspect was considered, this Court held that description of the relatives in the aforesaid provision is exhaustive and not illestrative or inclusive. This court said as under :-

"The Government order provides that the near relatives of Pradhan and Secretary of Shiksha Samiti shall not be appointed as Shiksha Mitra. The Gram Pradhan is the Sabhapati of the Selection Committee. The near relatives have further been specified which are father, grand-father, father-in-law, son, grand-son, brother-in-law (Damad), brother, sister, husband, wife, daughter and mother. The relevant extract of the aforesaid Government order is reproduced as under:-

Þf'k{kk lfefr ds lHkkifr o lfpo ds fudV lEcU/kh dk p;u f'k{kk fe= ds :i esa ugha fd;k tk;sxkA lEcfU/k;ksa dk rkRi;Z firk] nknk] Lolqj ¼fi= ,oa ek= lEcU/kh½ iq=] ikS=] nkekn] HkkbZ] cgu] ifr] iRuh] iq=h rFkk eka ls gSAß

Learned Standing Counsel however, vehemently contended that the various relatives in the aforesaid Government order are illustrative and not exhaustive since the basic purpose is to exclude the near relatives of the persons who play an important role in the Selection Committee. He submits if a father-in-law is prohibited, it is not understandable as to why mother-in-law will not be prohibited. However, this issue is no more res integra since a Division Bench of this Court in Gyan Pratap Singh Vs. State of U.P. and others 2005(2) Education Service Cases, 1199 has already considered a similar issue. While interpreting provision contained in Sub-rule (5) of Rule 165 of the U.P. Panchayat Raj Rules, 1947 (hereinafter referred to as 1947 Rules) it was held that relationships identified in the explanation are exhaustive and not illustrative.

Sub-rule 4 of Rule 165 of 1947 Rules prohibits appointment of Panchayat members relation to any post. The explanation of Sub-rule 5 of Rule 165 provides as under:-

"Explanation-The word ''relation' in the proviso means father, grand-father, father-in-law, maternal or paternal uncle, son, grandson, son-in-law, brother, nephew, first cousin, brother-in-law, sister's husband, wife, wife's brother, son of nephew."

A Division Bench of this Court after reading the aforesaid explanation took a view that explanation is not illustrative but exhaustive and the word relation is restricted to it meaning assigned and specified in the aforesaid provision. It has also held that it is not for the Court to find out different degrees or items of prohibition to exchange the aforesaid relationship though it has not mentioned in the Rule. The English translation of the provision in the Government Order would be as follows:-

"Relative means father, grandfather, father-in-law (maternal or paternal), son, grandson, son-in-law, brother, sister, husband, wife, daughter and mother."

The language of the Government order providing the meaning of relation is pari materia with the explanation to Rule 165(5) of 1947 Rules and therefore, though at first flush the contention of the learned Standing Counsel appears to be attractive but I feel bound by the view taken by the Division Bench in Gyan Pratap Singh (Supra) and hold that the petitioner could not have been disqualified only on the ground that her mother-in-law was Gram Pradhan of the Panchayat."

8. In view of above exposition of law and on examining the matter in question, it cannot be doubted that "wife of brother" is not one of relative, described in the list of relatives in paragraph no. 10 of Government Order dated 10.10.2005.

9. In view thereof, it cannot be said that respondent no. 5 was disqualified to be appointed as Shiksha Mitra in the village in which brother of her husband was Gram Pradhan.

10. No other argument has been advanced.

11. Writ petition lacks merit.

12. Dismissed.

Order Date :- 30.4.2014

A. Verma