IN H IGH COURT OF UTTARANCH AL AT NAINITAL (Court’s order whether the case is approved for reporting or not.) (Ch a p ter VIII Ru le 32 (2)(b) Description of the case. Writ Petition No. 1339 (S/ S) of 2005 Pitamber Lal and another ……… Petition er s Vs State of Uttaranchal & others. ………. Resp on d en ts Approved for reporting. __________________ Not approved for reporting Date of decision June 21, 2006 Initial of Judge ____________________________ 2 IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 1339 (S/S) of 2005 1. Pitamber Lal, son of Sri Sukhlal, resident of at present house no. 248, Tilak Nagar, Allapur, Allahabad. 2. Smt. Kalawati, wife of Sri Sukhlal, resident of at present house no. 248, Tilak, Allapur, Allahabad. …….Petitioners Versus 1. State of Uttaranchal through Secretary, Department of Industrial Development, Uttaranchal Administration, Dehradun. 2. Director, Government Press, Uttaranchal, Roorkee. 3. Deputy Director, Government Press, Uttaranchal, Roorkee. 4. Assistant Director, Government Press, Uttaranchal, Roorkee. ……Respondents Hon’ble M.M. Ghildiyal, J. Heard Sri G.S. Bhatt and Sri Lokendra Dobhal, learned counsel for the petitioners and learned standing counsel for respondents no. 1 to 4. By means of this writ petition, the petitioners have prayed for the following reliefs: (i) issue a writ, order, or direction in the nature of Mandamus directing the respondents to make payment of GIS amount with interest of Sri Sukhlal to his nominee Smt. Kalawati. (ii) writ, order, or direction in the nature of Mandamus directing the respondents to appoint Pitamber Lal, 3 petitioner no. 1 in Government Service according to his qualification in place of his deceased father Sri Sukhlal. (iii) any other writ, order or direction that this Hon’ble Court may deem fit in the interest of justice; (iv) costs. Amendment application was moved by the petitioners on 15.06.2006 to add one more prayer in the writ petition, as prayer I (a) for quashing of the order dated 22.07.2005 passed by Joint Secretary, Uttaranchal Administration, Dehradun refusing to give appointment to the petitioner and further to implead the Joint Secretary, Uttaranchal Administration, Dehradun as respondent no. 5. Amendment application was allowed and petitioners were permitted to add the aforesaid prayer. The facts of the case are that petitioner no. 1 is the son of late Sri Sukhlal, his date of birth is 07.09.1972 and has passed B.Sc. in the year 1995 from Chaudhary Charan Singh University, Meerut. Father of the petitioner no. 1 late Sri Sukhlal was appointed on 03.09.1979 on the post of Foundry Assistant in Government Photo Litho Press, Roorkee District‐ Haridwar and continued to work in the Department till 16.01.1998. Sri Sukhlal disappeared on 17.01.1998. He was searched in every possible places but he could not be found or traced. Consequently, Smt. Kalawati, wife of Sri Sukhlal, petitioner no. 2 lodged FIR on 19.01.1998 with Police Station – Gang Nahra, Roorkee. Director, Government Photo Litho Press, Roorkee was informed on 19.01.1998 about the disappearance of Sri Sukhlal and for necessary action by the Department. 4 In turn, Deputy Director, Government Photo Litho Press, Roorkee informed Station Officer, Incharge, Police Station‐ Gang Nahar, Roorkee about disappearance of Sri Sukhlal. On 28.03.1998, Police Station – Gang Nahar, Roorkee, informed the Assistant Director, Government Photo Litho Press, Roorkee that the matter was deeply examined and local police made all efforts to trace out Sri Sukhlal but he could not be traced. On 15.04.1999, final report sent by the Police Station – Gang Nahar, Roorkee, to the Assistant Director, Government Photo Litho Press, Roorkee that in spite of all possible efforts Sri Sukhlal could not be traced. Therefore, petitioner no. 2 moved an application to Assistant Director, Government Photo Litho Press, Roorkee to make payment of all dues including family pension and also to provide appointment to her son under Dying in Harness Rules, 1974. Assistant Director, Government Photo Litho Press, Roorkee directed petitioner no. 2, who was nominee of Sri Sukhlal, to file indemnity bond so that payment be made to her. Petitioner no. 2 filed indemnity bond along with copy of the FIR before Deputy Director, Government Photo Litho Press, Roorkee. Respondents sanctioned family pension to Smt. Kalawati vide order dated 26.09.2000. On 28.01.2002 petitioner no. 1 filed application before Deputy Director, Government Photo Litho Press, Roorkee to provide him appointment under Dying in Harness Rules, 1974. Number of application were moved by the petitioner no. 1 and application dated 07.03.2005 was also moved by petitioner no. 2 for payment of Insurance amount of Sri Sukhlal and to appoint her son on compassionate ground. 5 Deputy Director, Government Photo Litho Press, Roorkee, wrote letters dated 11.05.2005 and 07.06.2005 to the Secretary of Industrial Development, Uttaranchal, Dehradun stating therein that Sri Sukhlal, who was employee of Government Photo Litho Press, Roorkee, disappeared on 17.01.1998. Report to this effect was lodged with the Police Station. – Gang Nahar, Roorkee and police station has submitted its final report that Sri Sukhlal could not be traced even after best efforts. Family Pension has already been granted to Smt. Kalawati, wife of Sri Sukhlal and payment of GIS may be made to wife of Sri Sukhlal and appropriate order may be passed for providing appointment to the petitioner no. 1 under Dying in Harness Rules, 1974. On 22.07.2005, Joint Secretary, Uttaranchal has passed an order that payment under GIS may be made to the wife of Sri Sukhlal, however, petitioner no. 1 cannot be provided appointment under Dying in Harness Rules, 1974 as the Dying in harness Rules are not applicable in the case of disappeared employee. The submission of learned counsel for the petitioners is that according to U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 as adopted by the State of Uttaranchal appointment, on compassionate ground can be provided to the petitioner no. 1 on the post according to his qualification as his father disappeared on 17.01.1998 and could not be traced out and report to this effect has already been submitted by the Police Station‐ Gang Nahar, Roorkee. He has not been heard for seven years by those who would naturally have heard of him if he had been alive. Under 6 section 108 of Indian Evidence Act, Sukhlal would be presumed as dead and the petitioner no. 1 is entitled for appointment under Dying in Harness Rules. Counter affidavit has filed by respondents. In para 12 of the counter affidavit it is stated by the respondents that since the present case is the case of missing / disappearance of Sri Sukhlal, as such, it was not possible to presume his death till 7 years of his disappearance and as such, no compassionate appointment could be given to the dependent of the Sri Sukhlal. It is surprised that on the one hand respondents are admitting that Sri Sukhlal was disappeared with effect from 17.01.1998. FIR was lodged, police did every effort to trace Sri Sukhlal and finally, have submitted their report that he could not be traced. Family pension as well as payment of all dues have already been sanctioned to Smt. Kalawati, wife of Sri Sukhlal. In para 12 of the counter affidavit respondents have stated that it was not possible to presume the death of Sri Sukhlal till 7 years of his disappearance, in these circumstances, compassionate appointment cannot be granted to the petitioner no. 1. After 7 years of disappearance of Sri Sukhlal, order dated 22.07.2005 has been passed by Joint Secretary that Dying in Harness Rules, 1974 are not applicable in the case of employee, who is not traceable. Leaned counsel for the petitioners has placed reliance on the judgment in the case of Sima Devi Vs. Senior Superintendent of Police and others, reported in 2002 (2) AWC 7 1023 passed by Single Judge of Allahabad High Court. In para 8 of the aforesaid judgment, the court has held as under: “In my consideration, this is not the correct understanding of provision and spirit of the Rules 1974. The benefit of giving appointment on compassionate ground has to be extended to the dependent of a person who dies 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 Rules 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 dependant of person died in service in reference to Rule 5 of ‘Rules 1974’.” I am in full agreement with the aforesaid judgement. Learned counsel for the petitioners had further submitted that Department of Personnel and Training, Ministry of Personnel, Public Grievance and Pensions, Government of India has also issued office Memorandum on October 9, 1998. Clause 11 of the aforesaid Memorandum speaks about missing Government Servant, which is quoted as under: “11. Missing Government Servant ‐ Cases of missing Government servants are also covered under the scheme for compassionate appointment subject to the following conditions:‐ (a) A request to grant the benefit of compassionate appointment can be considered only after a lapse of at 8 least 2 years from the date from which the Government servant has been missing provided that: (i) an FIR to this effect has been lodged with the police; (ii) the missing person is not traceable; and (iii) the competent authority feels that the case is genuine. (b) This benefit will not be applicable to the case of a Government Servant:‐ (i) who had less than two years to retire on the date from which he has been missing; or (ii) who is suspected to have committed fraud, or suspected to have joined any terrorist organization or suspected to have gone abroad; (c) Compassionate appointment of a missing Government servant also would not be a matter of right as in the case of others it will be subject to fulfillment of all the conditions, including the availability of vacancy, laid down for such appointment under the scheme. (d) While considering such a request, the results of the police investigation should also be taken into account; and (e) A decision on any such request for compassionate appointment should be taken only at the level of the Secretary of the Ministry/Department concerned. It is true that this notification is in respect of Central Government Employees but the same principle will be 9 applicable in the present case also. It is not disputed that the father of petitioner no. 1 was disappeared on 17.01.1998 and FIR was lodged to this effect. Police after making their best efforts submitted their report that Sri Sukhlal could not be traced. More than 7 years have passed after disappearance of Sri Sukhlal, father of petitioner no. 1. For the reasons recorded above, writ petition is allowed. Order dated 22.07.2005 passed by Joint Secretary, Uttaranchal Administration, Dehradun is quashed. Respondents are directed to consider the case of the petitioner for appointment under Dying in Harness Rules, 1974 in accordance with law. With this direction the writ petition is finally disposed of. No order as to costs. (M.M. Ghildiyal, J) June 21, 2006 SKSharma