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2016 DIGILAW 853 (UTT)

Balam Singh v. State of Uttarakhand

2016-11-19

ALOK SINGH, K.M.JOSEPH

body2016
JUDGMENT : K.M. JOSEPH, C.J. Appellant is the writ petitioner. The father of the appellant was employed as an Assistant Teacher. The application of the appellant seeking employment under Dying in Harness Rules was rejected. The prayer sought in the writ petition is as follows : “(i) to issue a writ, order or direction in the nature of Mandamus commanding and directing the Respondent no.2 to give compassionate appointment to the petitioner under dying and harness Rules.” 2. Annexure No. 3 application purported to be filed by the appellant was filed on 15.06.2015. Therein, he indicated that his father was missing since year 1991 and the death of his father has been certified by the Civil Court, Almora. He pointed out that there is nobody in his family, who is employed; he has passed the 12th standard and he prayed for employment. Not having received any response, the appellant apparently filed the writ petition and the writ petition came to be dismissed by the learned Single Judge, who noted that the incident is of the year 1991, where more than 24 years’ period has already been elapsed and even under the Dying in Harness Rules, maximum period where such an application can be considered, is five years. Learned Single Judge also noted that at the time, when the father of the appellant was missing i.e. on 01.07.1991, the appellant was about 6 years of age and the further case of the appellant is that his mother had filed a civil suit for declaration of death of her husband, which was decreed vide order dated 16.02.2015. It was found that the application of the appellant is highly belated, and the writ petition was dismissed. 3. We heard Mr. Siddhartha Bisht, learned counsel for the appellant and Mr. H.M. Bhatia, learned Brief Holder for the respondents. 4. No doubt, the case of the appellant appears to be that the Civil Judge has failed to notice the fact that Rule 5 of Dying in Harness Rules gives five years’ time from the date of death. Apparently, this contention is taken in the light of the judgment of the Civil Court giving declaration of death by decree dated 16.02.2015 and therefore, his application must be treated within time. 5. We must not be oblivious to the underlying purpose of the Dying in Harness Scheme. Apparently, this contention is taken in the light of the judgment of the Civil Court giving declaration of death by decree dated 16.02.2015 and therefore, his application must be treated within time. 5. We must not be oblivious to the underlying purpose of the Dying in Harness Scheme. The purpose of Dying in Harness Rules is not to dole out employment, which ordinarily is to be given on the basis of principles complying with the mandate of Articles 14 and 16 of the Constitution of India. The deviation from the principle of equality and fairness in the matter of public employment is vouchsafed in genuine cases on the basis of hardship caused following the death of an employee in harness. 6. In this case, the appellant, who is aged 32 years, seeks employment on the basis of the events of the year 1991, which saw his father going missing and culminating in the decree of 2015. It is relevant to notice that the suit was instituted only in the year 2012. No doubt, learned counsel for the appellant would point out that the State was also a party to the said suit and that it contested proceeding. He would also contend that no pension or other benefits are being given as there is a case that the service of the father of the appellant was terminated, which undoubtedly, is being contested in separate proceedings. We say nothing about the said matter, which is to be decided and the same must be decided on the merits of the case. But as far as the prayer for Dying in Harness Rules is concerned, we cannot possibly overturn the judgment of the learned Single Judge in the facts of this case, when good 24 years have rolled by after date of the missing of the father of the appellant and in this case, we cannot permit the appellant to lay store by Rule 5 of the Dying in Harness Rules so that he could contend successfully that the date of death of his father must be treated as date of declaration by the Civil Court having regard to the purpose underlying in Dying in Harness Rules. 7. In such circumstances, we see no reason to interfere with the decision of the learned Single Judge. The Appeal fails and is dismissed.