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Allahabad High Court · body

2020 DIGILAW 241 (ALL)

Rajendra Prasad Singh v. State of U. P.

2020-01-21

SHAMIM AHMED

body2020
JUDGMENT : 1. This writ petition has been filed by the petitioner with the following prayers: “a). Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 16.11.2006 passed by respondent no. 2 (Annexure No. 15 to this writ petition). (b). Issue a writ, order or direction in the nature of mandamus, commanding the respondents to consider the claim of petitioner for compassionate appointment afresh and appoint the petitioner on a suitable class IV post, under the Dying in Harness Rules within some stipulated period, as this Hon'ble Court may deem fit and proper, (c). Issue any other writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the present case. (d). Award cost to the present writ petition to the petitioner.” 2. Learned counsel for the petitioner argued that the father of the petitioner who was a permanent class IV employee in the department of respondents, left his home on 01.05.1996 at about 6.00 P.M. for night duty and did not return to his home till 08.05.1996. He was searched in the office and at the homes of nears and dears but petitioner himself nor any family members could known the whereabout of father of petitioner. The petitioner then lodged a first information report at the concerned police station and also informed the police control room, Allahabad. 3. Learned counsel for the petitioner further argued that the aforesaid news (missing person) had also been given by the petitioner to Print Media for publication, which was published on 09.05.1996. The mother of the petitioner moved an application on 5.8.1996 before the respondent no.3 for granting his salary till her husband is searched by the police because she is unable to maintain her family but nothing has been paid to the mother of the petitioner. The petitioner repeatedly approached to the concerned police station to know about the progress in search of father of the petitioner. However, the police reported that they could not trace out the missing person. In this regard, the police has submitted its report dated 9.02.2004 and 26.03.2004. 4. Learned counsel for the petitioner further argued that in the instant case, the employee was missing, leaving behind his wife, Smt. Munni Devi and son i.e. petitioner, which was duly certified by the Tehsildar Sadar, Allahabad who has issued the dependent certificate dated 26.09.2003. 5. In this regard, the police has submitted its report dated 9.02.2004 and 26.03.2004. 4. Learned counsel for the petitioner further argued that in the instant case, the employee was missing, leaving behind his wife, Smt. Munni Devi and son i.e. petitioner, which was duly certified by the Tehsildar Sadar, Allahabad who has issued the dependent certificate dated 26.09.2003. 5. Learned counsel further argued that after exhaustive effort of search of his father by the police as well as by the petitioner himself, when the whereabout of missing father of petitioner could not be known, the petitioner sought appointment on compassionate grounds from respondnt nos. 2 and 3 by way of application dated 18.11.2003. Upon the application of the petitioner, respondent no.3 sought directions from respondent no.2 for further proceedings in the matter of the petitioner. 6. Learned counsel has further argued that the petitioner made a request to respondent no.2 that since on 01.04.2005 concerned police station reported in writing that the search of missing father of the petitioner has now been stopped and all the efforts have gone in vain, hence his case for appointment on compassionate ground may kindly be considered. The petitioner again represented to respondent no.3, repeating his similar prayer on 01.04.2004. Consequently, respondent no.3 forwarded the application of the petitioner to respondent no.2 on 08.04.2004. 7. Learned counsel has further argued that the petitioner as well as his mother jointly submitted an Indemnity Bond before the respondent no.2. It is made clear that in order to get appointment under such circumstances, submission of indemnity bond is necessary in pursuance to the Government Orders. So far as academic qualification of the petitioner is concerned, he passed High School Examination in 1987, according to which the date of birth of the petitioner is 20.07.1970. Thus, the petitioner is duly qualified and eligible to be appointed on class IV post. 8. Learned counsel further argued that inspite of repeated representation made by the petitioner before the respondent authorities, when a most genuine claim of the petitioner was not considered at all by the authorities concerned, then having left with no option the petitioner sought shelter of this Hon'ble Court by filing a writ petition, being Civil Misc. Writ Petition No.45902 of 2006. Writ Petition No.45902 of 2006. The Hon'ble Court, after hearing the parties, was pleased to dispose of the writ petition vide its judgment and order dated 24.08.2006 and observed that dependents of a person, dying a civil death in harness are also entitled for compassionate appointment and the respondents ought to take action on the application of the petitioner. The Hon'ble Court was further pleased to issue direction to the respondent no.2 to consider the claim of the petitioner expeditiously, preferably within a period of three months from the date of submission of a certified copy of order along with an attested copy of the writ petition. The certified copy of the order dated 24.08.2006, passed by this Hon'ble Court was duly served to the respondent No.2 by the petitioner along with an application dated 31.08.2006. 9. Learned counsel for the petitioner further argued that the respondent no.2 has passed the impugned order dated 16.11.2006, rejecting the claim of the petitioner on wholly nonexistent ground and even without considering the specific observations of this Hon'ble Court, contained in its order dated 24.08.2006. 10. Learned counsel next submitted that the entire family of the petitioner is on the verge of starvation inasmuch as no source of livelihood is available to the petitioner's family. The petitioner is simply working in a private clothes shop and is getting a meagre amount of Rs.50/-per day. The mother of petitioner is also compelled by the circumstances to attend certain houses for cleaning the pots. The petitioner along with family including his mother is living in a single room, rented accommodation. Thus, in these hard days it has become very difficult for the petitioner to pull on burden of expenses of the family. The respondent No.3 has already given compassionate appointment to more than 10 candidates during the period from the year 1992 to 2006 but the petitioner is being discriminated. The petitioner has been able to find out names of the following persons who have been given appointments by respondent No.3 under Dying in Harness Rules:- (1) Lal Chand (2) Suman (3) Shakira Begum (4) Beenu Singh (5) Manish Kumar (6) Mohd. Waseem (7) Santosh Kumar (8) Shiv Shankar (9) Anil Kumar and (10) Sujata Verma. 11. The petitioner has been able to find out names of the following persons who have been given appointments by respondent No.3 under Dying in Harness Rules:- (1) Lal Chand (2) Suman (3) Shakira Begum (4) Beenu Singh (5) Manish Kumar (6) Mohd. Waseem (7) Santosh Kumar (8) Shiv Shankar (9) Anil Kumar and (10) Sujata Verma. 11. Counter Affidavit was filed by respondent Nos.2 and 3 and an averment was made in paragraph no.4 of the counter affidavit that the father of the petitioner was posted as peon/chaprasi at the office of respondent no.3 and he absented himself since 15.04.1996 without any sanctioned leaved or information. The order impugned has been passed in compliance of the order dated 24.08.2006 passed in Civil Misc. Petition No.45902 of 2006. It is submitted that State Government has categorically clarified that the benefits of the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (hereafter referred to as ' Rules of 1974') are not applicable in the case of petitioner as his father went missing. 12. Further the learned counsel for respondent nos.2 and 3 draw the attention of the Court towards the averment made at paragraph no.6 of counter affidavit, in which, it is submitted that the father of the petitioner, Sri Narendra Pratap Singh absented himself since 15.04.1996 without any sanctioned leave or information. As per the claim of the petitioner as his father went missing since 01.05.1996 he (Narendra Pratap Singh) should be presumed to have met a civil death. On such fiction of law the petitioner applied on 18.11.2003 for appointment under the Rules of 1974, and that a compassionate appointment is an exception to the Rule and the petitioner cannot claim the same as a right. Compassionate appointment is provided to meet the sudden financial crisis which arise due to the death of the bread earner, the Law in this regard is very clear; such an appointment cannot be claimed as a right. Moreover the State Govenment has categorically clarified that the benefit of Rules of 1974, have not been extended to dependents of such employees who are missing as such the petitioner was not entitled to be appointed under the Rules of 1974, there was no question tht the answering respondent could have given the petitioner an appointment on some post under the Rules of 1974. The order impugned suffer from no infirmity. 13. The order impugned suffer from no infirmity. 13. Rejoinder Affidavit has been filed by the petitioner and he denied all the averments made in the counter affidavit and reiterated the ground taken in the writ petition. 14. Having heard the learned counsel for the parties and perused the record. 15. It is not in dispute that the father of the petitioner went missing in May, 1996 while working as a peon in the respondent organization. Even after seven years, his whereabouts could not be known and the police submitted a missing report. In view of the provisions of Section 108 of Indian Evidence Act, 1872, father of the peitioner had not been traceable, hence it is presumed that such a missing person has already died in the eyes of law after the lapse of seven years and since the father of petitioner has been acknowledged to be dead during the tenure of employment, hence dependents ought to have been given compassionate appointment. There is no lecuna in the candidature of the petitioner nor any formality is left to be completed by the petitioner in as much as an indemnity bond has already been submitted by the petitioner as required under the Govt. Order dated 20.03.1987 for the purpose in case the missing employee comes into picture in future, all the payments made to the family would be adjusted. Even after the directions issued by this High Court, vide its order dated 24.08.2006 in the earlier writ petition filed by the petitioner, instead of considering and allowing the legitimate claim of the petitioner for compassionate appointment, the respondent no.2 has simply rejected the representation on totally non-existent ground, without application of mind and even without considering the specific observations made by the High Court, treating the petitioner as dependent of a person/ employee dying a civil death in harness. 16. The father of petitioner is missing from 01.05.1996 and has not yet been traceable, hence according to the provisions of section 108 of the Indian Evidence Act, it is to be presumed that such person is dead in the eye of law after the lapse of 7 years and once the father of petitioner has been acknowledged to be dead during the course of his service, the petitioner being his dependent is entitled to get employment on compassionate ground under 1974 Rules. In this regard the provisions of section 108 of the Indian Evidence Act, 1872 are being quoted hereunder:- “108. Burden of proving that person is alive who has not been heard of for seven years:- [provided that when] the question is whether a man is alive or dead, if it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is the person who affirms it.” 17. The law is well settled that if a person is missing for more than 7 years, then the dependent of such person should be given appointment under the 1974 Rules. The financial condition of petitioner is such in which he is fully entitled for compassionate appointment so as to enable him to meet out the family expenses, otherwise the family of the petitioner, which is on the verge of starvation will be ruined. 18. In this regard, reference may be made to the law as laid down by this Court in the case of Amit Sharma Vs. State of U.P. And others [2009 (4) ESC2511 (All)] and was pleased to observe in paragraph No.11, which is being quoted herein below:- “Standing Counsel has placed reliance upon counter affidavit in which it has been averred that the Dying-in-Harness Rules, 1974 are not applicable as the said rules do not provide for compassionate appointment to the dependent of the employee who is claimed to have been missing from service of seven years on aforesaid rules are applicable to the Standing Counsel the notice of the aforesaid rules are applicable to the dependents of government servants who have died in harness while working. It is stated that the death of deceased Government employee has a nexus with the actual death of the Government servant in harness and not a civil death and that on presumption of civil death, only pension and other dues are payable. Reference in this regard have been made to the Government Orders dated 9.12.2008, 13.7.2006 and 21.5.2007, copy whereof is annexed as Annexures 3, 4 and 5 to the affidavit.” This Court further in the case of Ajay Kumar Shukla Vs. Reference in this regard have been made to the Government Orders dated 9.12.2008, 13.7.2006 and 21.5.2007, copy whereof is annexed as Annexures 3, 4 and 5 to the affidavit.” This Court further in the case of Ajay Kumar Shukla Vs. State of U.P. And others [2005(1)E.S.C. (All.807) observed in paragraph No. 8, which is being quoted herein below:- “It may be stated here that a human being can died under various circumstances, for example, a person may died on account of natural causes, or on account of an accident, or that the person may commit suicide, or die in war, or in anti-terrorist activities, or there may be a presumptive death, namely, that a person is missing since long and therefore, presumed to be dead. The Rules of 1974 does not specify the manner of death that would qualify for an employment to the heirs. Therefore, in my view all kinds of death caused by every possible manner, would be included in the Dying in Harness Rules and the benefit of employment has to be given to the dependant of the person, who dies in harness.” This Court further take the similar view in the case of Sanjay Kumar Singh Vs. State of U.P. and others [ 2005(3) A.W.C. 2724 (LB) observed in paragraph Nos. 9 and 10, which are being quoted herein below:- “And more so, according to the Section 108 of the Evidence Act when a person who is not traceable for the last 7 years from the date of his missing, shall be deemed to be dead. Section 108 of the Evidence Act is reproduced as under:- “108. Burden of proving that person is alive who has not been heard of for seven years.- [Provided that when) the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is (shifted to) the person who affirms it. There may be cases where while discharging duties particularly in police force or armed force persons may be placed in the list of lost or missing employees for some unforeseen reasons and denial for appointment on compassionate ground to the dependents of such employees even after the lapse of statutory period of 7 years shall frustrate the very purpose of the Dying-in-Harness Rules. “ This Court in the case of Sima Devi Vs. Senior Superintendnet of Police, Jhansi and others (2002(2) ESC (All. 37) observed in paragraph no.7 which is being quoted herein below: “In my consideration, this is not the correct understanding of provision and spirit of the 'Rule 1974'. The benefit of giving appointment on compassionate ground has to be extended to the dependent of a person who died in service and the same is to be given to a person who is legally entitled for such benefit. The nature, manner and cause of death may be many, such death, might occur in natural course, accidental, murder, natural calamities, during war, anti-terrorist activities etc. as the manner the death likely to occur in service has not been specified in the 'Rule 1974' therefore, the death caused by every possible manner could be conceived of and has to be considered for the purpose of extending benefit for giving employment to the dependent of person died in service interference to Rule 5 of 'Rule 1974'.” 19. In view of the above observations, the writ petition is allowed. The respondents are directed to consider to give the employment to the petitioner to the post of Class IV post/Constable in the department of Civil Police in State of Uttar Pradesh and take such decision within six weeks from the date of receipt of the order and place the petitioner at so suitable place near her home town and previous benefits which have already been extended to her could be adjusted or reimbursed from the benefits which are to be extended to her in accordance to the law after giving fresh appointment to the petitioner.” This Court in the case of Smt. Rama Devi and another Vs. State of U.P. And others, Writ A No.30612 of 2008 decided on 21.9.2010 considering the above judgments was pleased to observed as under:- “Having heard learned counsel for the parties and keeping in view the submissions raised this issue is no longer resintegra as held by this Court in the cases referred to herein above. The executive instructions therefore cannot take away the rights of the petitioner to claim compassionate appointment after the civil death of the employee. The respondents have themselves released all post terminal benefits.” 20. In view of the above discussion and the observation and direction given in the above referred case law, the principle of purposeful interpretation may be applied in the present case while considering the availability of benefits to the petitioner under Dying-in-Harness Rules. The purpose of Dying-in-Harness Rules is to provide help to the family of the deceased of a Government employee by making appointment on compassionate ground. After the death of Governmnt employee in harness or in case the Government employee is not traceable on account of certain mishappenings like happened in the present case, the appointment on compassionate ground of a dependent may save the family from dying on account of starvation and financial hardships. Hence, the writ petition deserves to be allowed. Accordingly, the impugned order dated 16.11.2006 passed by respondent No.2 (Annexure No.15 to the writ petition) is hereby quashed. The matter is remanded back to the respondent no.2 to consider the grievance of the petitioner afresh for compassionate appointment on a suitable post in the light of the observations made hereinabove within two months from the date of production of a certified/ computer generated copy of this order before him by a reasoned and speaking order. 21. Accordingly, the writ petition is partly allowed. Nor order as to costs.