Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 1776 (ALL)

Executive Engineer,Vidyut Nagariya Vitran Khand,Lko. v. Mohd. Ishtiaq (Inre 3426 S/S 2016)

2016-05-09

A.P.SAHI, ATTAU RAHMAN MASOODI

body2016
JUDGMENT Heard Sri Abhinav Trivedi, learned counsel for the appellants and Sri Alok Misra for the respondent no. 1. 2. Delay in filing of the special appeal is condoned. 3. This appeal questions the correctness of the judgement of the learned Single Judge dated 25.2.2016 on the ground that the judgement proceeds on the strength of the judgements referred to therein and the circular dated 16.8.1996 relied upon by the appellant department has not been accepted. The order refusing to grant compassionate appointment to the respondent no. 1 has been quashed with a direction to give a re-look to the matter in the light of the observations and pronouncements referred to in the said judgement. 4. Learned counsel for the appellants has filed a supplementary affidavit bringing on record the U.P. Recruitment of Dependents of Government Servants Dying in Harness (Ninth Amendment) Rules, 2011, which is to the following effect: "In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the Government is pleased to make the following rules with a view to amending the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974: 1. Short title and commencement. - (1) These rules may be called the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness (Ninth Amendment) Rules, 2011. 2. They shall come into force at once. 2. Amendment of Rule 2. - In the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974, in Rule 2, for existing clause (c), the following clause shall be substituted, namely - 2(C) 'family' shall include the following relations of the deceased Government servant-- (i) wife or husband; (ii) sons/adopted sons; (iii) unmarried daughters, unmarried adopted daughters, widowed daughters and widowed daughters-in-law; (iv) unmarried brothers, unmarried sisters and widowed mother dependent on the deceased Government servant, if the deceased Government servant was unmarried; (v) aforementioned relations of such missing Government servant who has been declared as "dead" by the competent court; Provided that if a person belonging to any of the above mentioned relations of the deceased Government servant is not available or is found to be physically and mentally unfit and thus, ineligible for employment in Government service, then only in such situation the word "family" shall also include the grandsons and the unmarried grand daughters of the deceased Government servant dependent on him." 5. A perusal thereof indicates that Clause (v) of Rule 2 (C) includes within its fold the dependent of a missing government servant who has been declared dead by a competent court. 6. Learned counsel for the appellants submits that these amended rules which were enforced w.e.f. 22.12.2011, does not appear to have been either pointed out or noticed by the Court. From the judgement impugned, we do not find any reference to the aforesaid rules. The judgements which have been relied upon by the learned Single Judge also do not indicate any consideration of the Dying in Harness (Ninth Amendment) Rules of 2011 quoted hereinabove. 7. Learned counsel for the respondents disputes the applicability of the said rules to which the reply of the learned counsel for the appellants is that the said rules have been duly adopted by the Power Corporation on 5.7.2012. Even otherwise, the decisions which have been relied upon by the learned Single Judge while delivering the judgement related to the said rules. Consequently, the same have to be looked into before the matter is finally disposed of. 8. The legal issue will have to be, therefore, decided only upon a consideration of the impact of the said rules, inasmuch as in the present case, the claim of compassionate appointment of the respondent no. 1 has to be looked into after seven years of the date of missing of the government servant and by which time the rules had already been enforced. The question of applying Section 108 of the Indian Evidence Act, 1972 in proceedings before a Court and not before the authority will also have to be determined which aspect does not appear to have been dealt with in any reported judgement. 9. We, therefore, find it necessary to remit the matter to the learned Single Judge for a consideration afresh in the light of the aforesaid rules and issued involved. The appeal is, therefore, allowed and the judgement dated 25.2.2016 is set aside with a request to the learned Single Judge to dispose of the writ petition keeping in view the aforesaid rules as well as any other law which may be required to be gone into for deciding the matter. 10. Learned counsel for the respondent no. 1 Sri Misra submits that the Power Corporation has been, in the past, extending such benefits in similar cases of civil death. 10. Learned counsel for the respondent no. 1 Sri Misra submits that the Power Corporation has been, in the past, extending such benefits in similar cases of civil death. It will be open to the parties to place all such material before the learned Single Judge, which shall be considered in accordance with law. 11. The matter maybe placed in the next cause list before the learned Single Judge.