IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1589 of 2006 (S/S) Banshidhar Bhatt, S/o Sri Urva Datt, R/o Village Amoli, P.O. Mulakot, District Champawat …………………..Petitioner. Versus (1) Director General of Police, Police Head Quarter, Uttaranchal Govt. Dehradun. (2) Inspector General Police, Kumaon Range, Nainital. (3) Senior Police Superintendent, Nainital. ………..……..Respondents. Sri Narayana Datt, Advocate for the Petitioner. Sri N.P. Sah, Standing Counsel for the respondents. Hon’ble Prafulla C. Pant, J. By means of this writ petition, the petitioner has sought writ in the nature of mandamus commanding the respondents to consider the case of petitioner for appointment on compassionate ground under U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974. (2) Heard learned counsel for the parties. (3) Brief facts of the case, as narrated in the writ petition, are that petitioner’s father Urva Datt Bhatt was initially appointed as Constable C.P. No. 183 with Civil Police, Nainital, in the year 1982. He remained posted at various places till 17th February 1997. On said date (17.02.1997) father of the petitioner was on his way from 2 Nainital to Haldwani, but he did not reach Haldwani. Apprehending missing persons abduction for commission of his murder, a First Information Report was lodged on 10.04.1997, by R.C. Bhatt, brother of the petitioner’s father, relating to offence punishable under Section 364 I.P.C.. After investigation the Haldwani Police submitted Final Report on 15.09.1997. But the petitioner’s father remained untraceable. He left behind him his wife and four minor children. In 1997 Sri Urva Datt Bhatt, father of the petitioner was aged 39 years and had completed about 16 years of service. In 2004, petitioner’s mother moved an application for appointment on compassionate ground on which the Senior Superintendent of Police (respondent no. 3) vide his letter dated 23.03.2004 directed her to submit eight papers (mentioned in para 7 of the writ petition). However, petitioner’s mother later on submitted to respondent no. 3 that instead of her being appointed her son (the petitioner) be given the appointment. The respondents before giving appointment desired to have declaration of death from the competent civil court. On this, petitioner Banshidhar Bhatt and his mother Shanti Devi instituted Suit No. 6 of 2005, before Civil Judge (Junior Division), Champawat, and got a declaratory decree on 30th November 2005 that Urva Datt Bhatt is dead. (The petitioner’s address shows that the petitioner’s father belonged to Village Amoli in District Champawat). After obtaining the decree, petitioner made another representation with the certified copy of the court’s declaration as to death of his father, seeking appointment on compassionate ground. However, the petitioner is denied the appointment. Hence this writ petition. (4) In the counter affidavit filed on behalf of respondents, it is admitted that Urva Datt Bhatt (father of the petitioner) was a Constable with the respondent- Police Department and was missing since 17.02.1997. It is also admitted in the counter affidavit that a 3 First Information Report was lodged on 10.04.1997 with Police Station Kotwali, Haldwani, on the report of Ramesh Chandra Bhatt (brother of petitioner’s father) and Crime No. 1026 of 1997 was registered against unknown persons relating to offence punishable under Section 364 I.P.C.. It is also admitted that said crime was investigated and Final Report was submitted. It is not denied by the respondents that the petitioner’s father could not be traced out. It is stated in Para 3(c) of the counter affidavit that wife of Urva Datt Bhatt (mother of the petitioner) was given family pension, group insurance scheme and other pensionary benefits. It is also admitted by the respondents in their counter affidavit that on 30th November 2005, the petitioner and his mother obtained a decree from Civil Judge (Junior Division) Champawat, relating to death of Constable Urva Datt Bhatt. However, respondents’ case in the counter affidavit is that respondent no. 3 moved the petitioner’s case to the Inspector General of Police in May 2006, but the Police Headquarter informed that the missing and eloped employees’ cases are not covered under U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974. It is further stated that after seven years of the employee’s missing it cannot be said that the petitioner or other family members of the employee are in the immediate financial crisis. (5) In the rejoinder affidavit the petitioner has reiterated the averments made in the writ petition and stated that all kinds of death are covered under the Rules of 1974. (6) Admittedly, Urva Datt Bhatt (father of the petitioner) was a Constable with the Police Department of the State. It is also not disputed that he went missing w.e.f. 17.02.1997. It is also not disputed that a First Information Report was lodged by brother of the employee and the employee remained untraceable. It is also 4 admitted between the parties that a decree is obtained by the petitioner and his mother from a competent civil court, which, in view of provision of Section 108 of Indian Evidence Act, 1872, declared Urva Datt Bhatt as dead. (7) The only question for consideration before this Court in this writ petition is whether a person who is declared dead on the ground that he is missing for more than seven years can be treated to have died in harness for the purposes of Rule 5 of U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974, or not. Rule 5 of said rule reads as under:- “5. Recruitment of a member of the family of the deceased.-(1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service 5 Commission, in relaxation of the normal recruitment rules if such person- (i) fulfils the educational qualifications prescribed for the post, (ii) is otherwise qualified for Government service, and (iii) makes the application for employment within five years from the date of the death of the Government servant: Provided that where the State Government is satisfied that the time-limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner. (2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death.” The aforesaid Rule does not specify which kinds of death are excluded for the purposes of providing the recruitment to the member of the family of the deceased. The contention of learned counsel for the petitioner is that where a person has been declared dead by the civil court, cannot be denied appointment on compassionate ground, as such death is not excluded from the 6 aforesaid Rule. In support of his case the petitioner drew attention of this Court to the case of Sima Devi Vs. Senior Superintendent of Police, Jhansi and others; E.S.C. (All.), pg. 37. In said case, in similar circumstances Allahabad High Court has taken the view that compassionate appointment can be given to the dependant of an employee who has been declared dead on account of being missing for more than seven years. On the other hand learned Standing Counsel argued that a missing person cannot be treated to be dead for the purposes of Rule 5, quoted above, as after seven years, it cannot be said that the family members are in immediate financial help of the Department. (8) On a plain reading of Rule 5, quoted above, it is clear that a person who is declared dead by the civil court is not excluded for the purposes of said Rule. Had it been a case where an employee who is facing a criminal charge or departmental enquiry has absconded, it could have been said that members of his family cannot seek appointment on compassionate ground as neither such person nor his children are entitled to the compassionate consideration. But where an employee while discharging his duty or otherwise got missing and his family members have lodged First Information Report relating to an offence punishable under Section 364 I.P.C., which was investigated by the employer Department itself, which could not trace out either the missing or any accused and submitted the Final Report, it cannot be said that member of family of such person who has also obtained decree of the court relating to death of the employee is barred from consideration of his case under Rule 5 of U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974. (9) Having considered the submissions of learned counsel for the parties and after going through the judgment and decree passed by 7 the civil court, a copy of which is Annexure 2 to the writ petition, this writ petition deserves to be allowed to the extent that petitioner’s case for compassionate appointment cannot be rejected after the decree passed by the civil court declaring his father Urva Datt Bhatt dead. Therefore, the respondents are directed to consider the case of the petitioner under the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974, provided he is otherwise qualified. (Prafulla C. Pant, J.) 16.06.2008 NS