IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1715 of 2005 (S/S) Smt. Vinita Kotnala ………..Petitioner Versus State of Uttaranchal and others …….Respondents Shri M.C. Kandpal, learned Senior Advocate assisted by Shri S.S. Chaudhary, learned counsel for the petitioner . Shri M.C. Tiwari, Additional Chief Standing Counsel for the State/ respondents. Dated: 30.07.2010 Hon’ble V.K. Bist, J. Present writ petition has been filed by the petitioner for quashing the order dated 05.10.2005 passed by the Superintendent of Police, Uttar-Kashi. Further prayer has been made for a direction to the respondents authorities to appoint the petitioner against Class IV post in the Department on the basis of U.P. Recruitment of Dependants of Government Servants Dying-In-Harness Rules, 1974 (hereinafter referred to as Dying-In-Harness Rules). 2. Brief facts of the case, as narrated in the petition, are that husband of the petitioner Durga Prasad joined Police Department in the year 1992. He got married with the petitioner in the year 1993 and out of wedlock one son and two daughters were born. The husband of the petitioner disappeared on 09.05.2003 and is missing from that day. The petitioner made representation before the Superintendent of Police, Uttar-Kashi, who on the 2 basis of Government order dated 20.03.1987 completed all formalities and sent a letter to Director, Lekha Evam Haqdari, Uttaranchal and requested him to pass payment order in favour of the petitioner regarding family pension and gratuity. According to learned counsel for the petitioner this amount was sanctioned. Thereafter, the petitioner submitted several representations before the respondents authorities to appoint the petitioner in the Department on the basis of Dying-In-Harness Rules and also filed an application on 23.01.2005 for the physical measurement as well as medical for the purpose of appointment in the Department. On 06.02.2005 the Superintendent of Police, Pauri Garhwal directed the Range Inspector to get the measurement as well as medical done and record the same in prescribed performa. The Superintendent of Police, Uttar-Kashi also forwarded the application of the petitioner to the Inspector General of Police (Karmic), Uttarakhand, Police Head Quarter, Dehradun for compassionate appointment and sought his guidance in the matter. After considering that the husband of the petitioner is not traceable for several years, the authorities considered the case of the petitioner and paid all the pensionary benefits and gratuity to the petitioner, but they refused to appoint the petitioner on the basis of Dying-In- Harness Rules. On 18.10.2005, the petitioner wrote to the Inspector General Of Police (Karmic), Uttarakhand, Police Head Quarter, Dehradun stating therein that she has received all the payments but her appointment under Dying-In-Harness Rules has not been made. By this letter she requested for compassionate appointment. The Superintendent of Police, Uttar- Kashi vide letter dated 05.10.2005 informed the petitioner that case of missing person is not covered under Dying-In-Harness Rules. The case of the petitioner is that since her husband is not traceable for more than seven years, she is covered under Dying-in- Harness Rules and is entitled for compassionate appointment. 3. The respondents filed counter affidavit and submitted that on the basis of Dying-In-Harness Rules, all the pensionary benefits and gratuity had already been released in favour of the petitioner but the claim of the petitioner for compassionate appointment on the basis of Dying-In-Harness Rules is not admitted. The representation of the petitioner for compassionate appointment under the Dying-In-Harness Rules was referred to Police Headquarter, Dehradun. The Additional Inspector General of Police (Administrative), Police Headquarter, Dehradun vide letter dated 08.09.2005 clarified that the claim of the petitioner regarding compassionate appointment is not covered under Dying-In-Harness Rules, 1974. 4. I have heard Shri M.C. Kandpal, learned Senior Advocate assisted by Shri S.S. Chaudhary, learned counsel for the petitioner and Shri M.C. Tiwari, Additional Chief Standing Counsel for the State/ respondents and perused the record. 4 5. Learned counsel for the petitioner submitted that once the case of the petitioner is considered under Dying-In-Harness Rules for payment of pensionary benefits and gratuity, the respondents should have considered her case for compassionate appointment under the same Rules. He argued that once the petitioner’s husband is not traceable for more than seven years, the petitioner is entitled to be considered for compassionate appointment under Dying-In- Harness Rules. 6. On the other hand, Shri M.C. Tiwari, learned Additional Chief Standing Counsel for the State/ respondents submitted that the claim of the petitioner for compassionate appointment cannot be considered under Dying-In-Harness Rules, 1974 as same do not apply in the case of a missing employee. 7. Rule 5 of the Dying-In-Harness Rules provides that on the death of Government servant, one member of his family shall be given a suitable employment in Government service. Rule 5 of the Dying-In-Harness Rules is reproduced below: “[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 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.] (3) Each appointment under sub- rule (1) should be under the condition that the person appointed under sub-rule (1) shall upkeep those other family members of the deceased Government Servant who are incapable for their own maintenance and were dependent of the abovesaid deceased Government servant immediately before his death.]” 8. Rule 2 (b) of the Dying-In-Harness Rules defines the deceased government servant in the following manner: “deceased Government servant” means a Government servant who dies while in service; 6 9. From the perusal of aforesaid provision of the Dying-In-Harness Rules, it is clear that one member of Government servant, who dies while in service, is entitled for suitable employment in Government service. In the present case, it is not disputed that husband of the petitioner has not been heard of for seven years by those who would naturally have heard of him if he had been alive. In such circumstances the husband of the petitioner should be treated as dead for the purpose of grant of benefit under the Dying-In-Harness Rules. The respondent authorities cannot deny the benefit which petitioner is entitled in the event of death of her husband. 10. In view of above discussion, writ petition is allowed. Order dated 05.10.2005 passed by S.P. Uttarkashi is quashed. Respondents are directed to reconsider the application of the petitioner for compassionate appointment under Dying-in-Harness Rules by treating her husband dead as defined under Section 2 (b) of Dying-in-Harness Rules, within a period of one month from the date of production of certified copy of order. 11. No order as to costs. (V.K. Bist, J.) 30.07.2010 Arpan