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2017 DIGILAW 108 (JHR)

Naresh Baitha v. State of Jharkhand

2017-01-13

S.N.PATHAK

body2017
ORDER : Heard learned counsel for the petitioner and learned counsel for the respondents. 2. The petitioner has approached this Court with following prayers: - (i) For quashing the order dated 5.2.2016, whereby the claim of the petitioner for compassionate appointment has been rejected, (ii) For commanding upon the respondents to consider the claim and appoint the petitioner on compassionate ground. FACTUAL MATRIX 3. The father of the petitioner namely, Sohrai Baitha was appointed as an Assistant Teacher on 28.1.1976 and posted at Government Middle School, Simala, Kanke Block in the district of Ranchi. The father of the petitioner became traceless since 1.7.2000 and when his was not traced out, a Sanha was registered vide Sanha No. 211 of 2000 in Ratu Police Station. It is further stated that the mother of the petitioner has also been killed by the unknown miscreants for which Ratu P.S. Case No. 52 of 2005, has been instituted. The petitioner filed several representations for his appointment on compassionate ground but when no action was being taken, he moved before this Hon'ble Court vide W.P.(S) No. 5502 of 2006, which was disposed of on 12.5.2009, with a direction to consider the case of the petitioner taking into consideration the law laid down in W.P.(S) No. 4848 of 2002 dated 13.9.2003 and also taking into consideration the several provisions of Indian Evidence Act. In compliance of the said order, the petitioner filed a fresh representation before the Authorities regarding the orders of the Hon'ble High Court but when no action was taken by the respondents, than the petitioner was compelled to file a contempt application, in which the respondents-authorities filed a show-cause stating therein that the case of the petitioner regarding compassionate appointment has been rejected vide order dated 5.2.2016 and hence, this writ petition has been filed challenging the order of rejection. 4. Learned counsel for the petitioner, Mr. Laljee Sahay, submits that the order of rejection dated 5.2.2016 issued vide Memo No. 36 dated 11.2.2016 has been passed illegally and arbitrarily without considering the rules and laws laid down in W.P.(S). No. 4848 of 2002 dated 13.9.2013 and also without adhering to the provisions of Indian Evidence Act, as directed by this Hon'ble Court. Laljee Sahay, submits that the order of rejection dated 5.2.2016 issued vide Memo No. 36 dated 11.2.2016 has been passed illegally and arbitrarily without considering the rules and laws laid down in W.P.(S). No. 4848 of 2002 dated 13.9.2013 and also without adhering to the provisions of Indian Evidence Act, as directed by this Hon'ble Court. Learned counsel further submits that the law is very clear regarding the provisions of deemed death and even taking into consideration the provisions of the Evidence Act, till date the father is traceless and the respondents-authorities have not taken any pain for consideration of appointment on the point of deemed death. Learned counsel, in order to strength his arguments, relies on a similar case of one Ashok Kumar Pal, whose father was also traceless for more than seven years, who was given appointment on compassionate ground in case of deemed death but the respondents-authorities, adopting the method of pick and choose, have discriminated the present petitioner and has not considered the appointment on ground of deemed death. 5. Nobody appears on behalf of the State. Several adjournments were granted for filing counter-affidavit but no counter-affidavit has been filed by the respondents-State. 6. Upon going through the impugned order, it transpires that the case of the petitioner has been rejected on the ground that there is no provision for appointment on compassionate ground in case of deemed death and there is no direction as such, for consideration of appointment on compassionate ground in case of deemed death. 7. Be that as it may, the case of the petitioner has been rejected by the respondents on the ground that there is no provision for appointment on the ground of deemed death and as per the guidelines given by the State Government, there is no scheme to provide compassionate appointment on presumption of death or deemed death. It is an admitted fact that the petitioner's father has become traceless for the last several years i.e. more than seven years have elapsed and there is no possibility of the father being traced. This Court is of the considered view that the case of the petitioner deserves consideration on the ground of deemed death. It is an admitted fact that the petitioner's father has become traceless for the last several years i.e. more than seven years have elapsed and there is no possibility of the father being traced. This Court is of the considered view that the case of the petitioner deserves consideration on the ground of deemed death. In the case of Sarijai Kumar Singh vs. State of U.P & Ors., reported in (2005)3 AWC 2724 (LB) and also in case of Avinash Gupta vs. State of U.P. & Ors., passed by learned Single Bench of Allahabad High Court in Civil Misc. Writ Petition No. 17395 of 2011, in which it has been observed that there is no distinction between the civil death and natural death for the purpose of grant of compassionate appointment inasmuch as in both the cases bread earner of the family is not at all therein who would come forward to help the incumbents who are in penury. Purpose is to provide help to the family of the deceased employee whether it is case of natural death or it is a case of civil death. It has also been held by the Division Bench of High Court of Uttrakhand in Director General of Police and Ors. VS. Banshidhar Bhatt passed by learned Division Bench of Uttaranchal High Court in Special Appeal No. 173 of 2008, in which the claim of the petitioner was allowed for compassionate appointment to the dependant of a person who was missing for more than seven years and after investigation the Police could not trace out the missing person. The Circular vide Memo No. 7146 dated 31.10.2008 for appointment of dependents of traceless employee on compassionate basis issued in view of the judgment of Md. Nooralam & Ors. vs. State of Bihar, reported in 2007(4) PLJR 200 . In W.P.(S).No. 4848 of 2002 this Hon'ble Court vide order dated 13.8.2003 observed that, "In that view of the matter, whatever was applicable or is' applicable to a dead person would, naturally therefore by reason of the deeming fiction provided under Section 108 of the Evidence Act, should have been made applicable to a person who is presumed to be dead unless the department comes with a plea that he is still alive. In that event it would be for the department to prove his existence. In that event it would be for the department to prove his existence. That having not been done, the benefit of compassionate appointment should be accorded in favour of the petitioner. "The aforesaid view was also reiterated by this Hon'ble Court in W.P.(S) No. 672 of 2015 vide order dated 25.11.2016. 8. As a cumulative effect of the aforesaid observations, rules and the judicial pronouncements, this writ petition is hereby allowed and the respondents are directed to consider the case of the petitioner within a period of four months from the date of receipt of a copy of this order and if the petitioner is found fit for compassionate appointment, the letter of appointment should be issued to him within a further period of three weeks.