Back
2005 Supreme(All) 514
ALLAHABAD HIGH COURT
Ajoy Nath Ray, C.J. and Ashok Bhushan, J.
Gyan Pratap Singh, Bachchraj Singh
Versus
State of Uttar Pradesh
Special Appeal 296 of 2005
Decided On : 21 March 2005
Special Appeal 296 Of 2005
A.KUMAR, R.B.Singhal, R.DWIVEDI, V.S.Dwivedi,
The prohibition of nepotism in Panchayat appointments must be clear and accurate, and the interpretation of the rule's explanation should be legally restricted to specific relationships mentioned.
Headnote:
nepotism - Panchayat Appointment - The court interpreted the explanation of sub-rule (5) of Rule 165 of the U. P. Panchayat Raj Rules, 1947, and held that the word 'relation' is restricted to the specific relationships mentioned in the explanation and not otherwise. The court gave a legally restricted meaning to the word 'nephew' and concluded that the prohibition must be clear and accurate before a person can be barred from entering into a Panchayat service.
Fact of the Case:
The court quashed the selection and appointment of a candidate due to his relationship to the Village Pradhan, based on the explanation of sub-rule (5) of Rule 165 of the U. P. Panchayat Raj Rules, 1947.
Finding of the Court:
The court found that the explanation of the rule was exhaustive and not illustrative, and that the word 'relation' was restricted to specific relationships mentioned in the explanation. It concluded that the prohibition must be clear and accurate before a person can be barred from entering into a Panchayat service.
Issues: Interpretation of the explanation of sub-rule (5) of Rule 165 of the U. P. Panchayat Raj Rules, 1947, and whether the candidate's relationship to the Village Pradhan warranted quashing of his appointment.
Ratio Decidendi: The court's decision was based on the interpretation of the explanation of the rule, giving a legally restricted meaning to the word 'nephew' and emphasizing the need for a clear and accurate prohibition before barring a person from Panchayat service.
Final Decision: The appeal was allowed, the writ petition was dismissed, and the quashing of the appellant's appointment and selection was set aside, allowing the appellant to function in accordance with the law.
( 2 ) IT is from an order of an Honble Single Judge dated 10. 2. 2005 wherein his Lordship has quashed the selection and appointment of one Gyan Pratap Singh, who was respondent no. 5 in the Court below. The only reason for quashing is his relationship to the Village Pradhan. It is an admitted case that the appellant at the material time was the husbands brothers son, i. e. the brother-in-laws son of the Village Pradhan, who was a lady.
( 3 ) THE only provision of law which is material for our consideration, is the explanation of sub-rule (5) of Rule 165 of the U. P. Panchayat Raj Rules, 1947. sab-rule (4) prohibits the appointment of a Panchayat members relation to any post ( (SIC) servants (SIC) ).
( 4 ) THE said explanation is set out below:" 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, sisters husband, wife, wifes brother, son of nephew".
( 5 ) WE are of the clear opinion that the explanation is not illustrative but exhaustive. The wordings of the explanation indicates that the wording relation is restricted in its meaning to the particular relationships which are mentioned in the explanation and not otherwise. It would not be open to the Court to find out different degrees or items of prohibition, which are not mentioned in the Rules.
( 6 ) A simple reading of the explanation shows that although brother-in-law is a prohibited relation, brother-in-laws son is not a prohibited relation.
( 7 ) THE only submission, which deserves any mention from the side of the respondents, is that brother-in-laws son is a nephew and, therefore, a prohibited relationship.
( 8 ) WE are unable to accede what a nephew is best understood by looking at a helpful chart of consanguinity given in Schedule I of the Indian Succession Act, 1925. It would be seen there that a brothers son is a nephew but it is quite difficult from the son of the brother-in-law.
( 9 ) A brother and a brother-in-law, in relation to proximity of relationship, are extremely wide apart. If the Schedule to the Hindu Succession Act, 1956 is considered, it would be seen that a brother is at Item No. (3) of Head II of Class II of the Schedule, but a brother-in-law is not much of a relationship at all, from the point of view of an inheritance of property. We are aware that these property legislations should not be placed too much reliance upon when the Court is construing word relations given in a Rule, which is meant to prohibit nepotism rather than prohibit only some technically proximate relation from being appointed. But the words used in the explanation are English words, which have specific meaning both in the dictionary and in the law, and help taken from these sources cannot be wholly brushed aside.
( 10 ) IT is important to note that from the point of view of the Indian Succession Act, Chart, the nephew of the wife would be the wifes brothers son, who would be quite a different person than the brothers son of the wifes husband, i. e. brother-in-laws son.
( 11 ) HOWEVER, if The Concise Oxford Dictionary is to be consulted, the meaning of nephew as given in the 1995 edition is as follows: nephew; a son of ones brother or sister, or of ones brother-in-law or sister-in-law.
( 12 ) THE Indian Succession Act, therefore, speaks with a different voice from The Concise oxford Dictionary; dictionaries speak with the same voice and Blacks Dictionary defines nephew as the son of ones brother or sister, or ones brother-in-law or sister-in-law.
( 13 ) THE reason for this difference is not far to see; when one is looking at the Indian Succession act, one is judging the descent of property, which has everything to do with blood relationship.
( 14 ) THE dictionaries, however, refer to the common parlance and, therefore, the reference to ones brother-in-laws son as a nephew, would be quite right,
