HIGH COURT OF UTTARAKHAND, AT NAINITAL Special Appeal No. 173 of 2008 Director General of Police and two others. ………..…Appellants. Versus Banshidhar Bhatt. ……Respondent. Mr. B.K. Gupta, Additional Advocate General for State / appellant. Mr. Narayan Dutt, Advocate for the respondent. Dated :- October 05, 2009 Corum : Hon’ble Tarun Agarwala, ACJ. Hon’ble Sudhanshu Dhulia, J. (By the Court) Heard Mr. B.K. Gupta, Additional Advocate General for State / appellants and Mr. Narayan Dutt, Advocate for the respondent. This Special Appeal has been filed against the judgment dated 16.06.2008 passed by learned Single Judge in Writ Petition No.1589 (S/S) of 2006, whereby the writ petition of the petitioner for appointment under the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (from hereinafter referred to as the Rules) has been allowed. The brief facts giving rise to this appeal are that the petitioner’s father was initially appointed as Constable with Civil Police, Nainital in the year 1982 and remained posted at various places till 17.02.1997. On 17.02.1997 petitioner’s father was on his way from Nainital to Haldwani, but he could not reach Haldwani and was subsequently declared “missing”. A First Information Report was also lodged with the police under section 364 IPC on 10.04.1997. In this case, a final report was filed on 15.09.1997 stating therein that the father of the petitioner has remained untraceable. The father of the petitioner had left behind him his wife and four minor children at the relevant time, including the present petitioner. Subsequently, after a period of 7 years (from the date of missing i.e. 17.02.1997) mother of the petitioner moved an application / representation for appointment on compassionate ground on which the Senior Superintendent of Police vide letter dated 23.03.2004 directed her to submit certain documents. The authorities before giving such an appointment also desired a declaration to this effect from the competent civil court. Consequently, petitioner and his mother Shanti Devi instituted a civil suit bearing suit no. 6 of 2005 before Civil Judge (Junior Division), Champawat and got declaratory decree on 30.11.2005 which declared that Urva Dutt Bhatt (father of the petitioner) is dead. After obtaining the said decree and other documents the petitioner made another application before the concerned authorities. However, since no appointment was made petitioner was constrained to file the writ petition seeking a direction for appointment of the petitioner in the Department on compassionate grounds under the Rules. Most of the facts stated in the writ petition were admitted in the counter affidavit by the State. However, the main objection of the State against the appointment of the petitioner on compassionate ground was that the petitioner’s case is not covered under the Rules since after seven years the employee though missing, there is no immediate financial crisis, in the family. In the judgment the learned Single Judge after considering all the factual as well as legal aspects has come to the conclusion that the only question for consideration before the Court was 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 the Rules or not. Rule 5 of the 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 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.” Learned Single Judge after considering the said Rule has come to the conclusion that this Rule does not specify which kind of death is excluded for the purposes of providing the recruitment to the member of the family of the deceased. Therefore, the contention of the petitioner appear to be correct that the person who has been declared dead by the Civil Court has to be treated as dead for the purposes of the Rules. Moreover, learned Single Judge has also relied upon the judgment of Allahabad High Court in Sima Devi Vs. Senior Superintendent of Police, Jhansi and others, ESC (All.) pg 37 where in the similar circumstances the Allahabad High Court has taken a view that compassionate appointment can be given to the dependent of an employee who has been declared dead on account of his being missing for more than 7 years. The other contention of the learned counsel for the appellant that if a person is missing for the last 7 years it cannot be said that his family members are in the immediate financial help. This aspect was also considered by the learned Single Judge, which reads thus: “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 IPC 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.” Counsel for the appellant is presently also relying upon a Government Order dated 09.12.1998 where it is provided that dependants of a missing person are not liable to get appointment under the Rules. This G.O. was not placed before the learned Single Judge by the State Counsel and therefore, the reliance on this G.O. at the stage of the Special Appeal is also objected by the counsel for the respondent/petitioner. Be that as it may, a perusal of the said Government order does not disclose any reason whatsoever as to why such category of employees are being excluded for appointment under Dying in Harness Rules. Moreover, this Government Order would not be applicable to the present case in as much as in the present case petitioner has a declaratory decree in his favour from a Civil Court. Therefore, this Government Order is not applicable to the facts of the present case and consequently, no benefit of this G.O. can be granted to the appellant. We, therefore, do not find any fault in the judgment/ order under appeal. This appeal therefore lacks merit and is accordingly dismissed. Appeal is dismissed. (Sudhanshu Dhulia, J.) (Tarun Agarwala, ACJ.) Dated 05.10.2009 SKS