HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.1827 of 2007 (S/S) Pitamber Lal S/o Sri Sukh Lal R/o 248 Tilak Nagar, District Allahabad U.P. …….Petitioner Versus 1. State of Uttarakhand through Secretary, Department of Industrial Development, Uttarakhand Administration, Dehradun. 2. Director, Government Press, Uttarakhand, Roorkee. 2.(A).Joint Director, Government Press, Uttarakhand, Roorkee. 3. Deputy Director, Government Press, Uttarakhand, Roorkee 4. Assistant Director, Government Press, Uttarakhand, Roorkee. …….Respondents Mr. G.S. Bhatt and Mr. Lokendra Dobhal, learned counsel for the petitioner. Mr. N.P. Sah, learned Standing Counsel for the respondents. Hon’ble V.K. Bist, J. Heard learned counsel for the parties. By means of present petition, the petitioner has challenged the orders dated 07.11.2007 and 08.02.2008 by which his claim for compassionate appointment has been rejected on the ground that there is no provision in Dying-in-Harness, Rules 1974 for giving appointment to the dependent of missing government servant. 2 Brief facts of the case are that Late Sukhlal, father of the petitioner joined service on 03.09.1979 on the post of Foundry Assistant in Government Photo Litho Press, Roorkee and continued to work in the department till 16.01.1998. On 17.01.1998 he disappeared and could not be traced. His wife Smt. Kalawati lodged F.I.R. on 19.01.1998 with Police Station Gangnaher, Roorkee. The petitioner also informed Director, Government Photo Litho Press, Roorkee on 19.01.1998 about disappearance of Late Sukhlal and requested for necessary action in the matter. On 20.01.1998 Deputy Director, Government Photo Litho Press, Roorkee wrote a letter to Police Station Gangnaher about disappearance of Sukhlal from 17.01.1998 and requested for necessary action. Thereafter, Smt. Kalawati requested several times to Deputy Director, Government Photo Litho Press, Roorkee for taking action to trace her husband. On 23.03.1998 P.S. Gangnaher, Roorkee informed Assistant Director, Government Photo Litho Press, Roorkee that the case was deeply examined and local police made all efforts to trace Sukhlal out but he could not be traced and still efforts are being made. Thereafter, on 15.04.1999 P.S. Gangnaher, Roorkee finally informed Assistant Director, Government Photo Litho Press, Roorkee that inspite of all efforts Sukhlal could not be traced. In the meantime Smt. Kalawati, wife of Sukhalal instituted Suit No.134/2005 before Civil Judge/(J.D.), Roorkee for declaring Late Sukhlal as dead as defined under Section 108 of Indian Evidence Act, 1872. This suit was decreed on 3 14.03.2007 declaring Sukhlal as dead. The petitioner also filed several representations for granting payment of G.I.S. amount, Family Pension to the mother of the petitioner Smt. Kalawati and also for compassionate appointment to the petitioner under Dying-in-Harness, Rules 1974 but when nothing was done the petitioner filed Writ Petition No.1339 (S/S) of 2005, mainly for direction to the respondents to appoint him in place of his deceased father Sukhlal under Dying-in-Harness Rules, 1974. The writ petition was allowed on 21.06.2006 and respondents were directed to consider the case of the petitioner for appointment under Dying- in-Harness, Rules 1974 in accordance with law. While allowing the writ petition this Court observed that principle of memorandum dated 09.10.1998 issued by the Department of Personnel and Training, Ministry of Personnel, Public Grievance and Pensions, Government of India, which provides that cases of missing government servants are also covered for compassionate appointment will also be applicable in the present case. Judgment passed in Writ Petition No.1339 (S/S) of 2005 was not challenged by the respondents in appeal and same became final. Thereafter, in compliance of this Court’s order dated 21.06.2006 the respondents passed orders declining the claim of the petitioner for compassionate appointment under Dying-in-Harness Rules, 1974 on the ground that compassionate appointment cannot be 4 given to the dependent of a missing employee. These orders are under challenge in present petition. The claim of the petitioner is based on Rule 5 of The U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 which is being quoted below:- [5. Recruitment of a member of the family of the deceased- “In case a Government servant dies in harness and after the commencement of these rules 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 5 for dealing with the case in a just and equitable manner. Section 2(b) of the Dying in Harness Rules, 1974 defined the deceased government servant in the following manner:- “deceased Government servant” means a Government servant who dies while in service; Learned counsel for the petitioner submitted that father of the petitioner has been declared dead by the competent Civil Court and respondents have released all dues by treating Sukhlal as dead but claim of the petitioner for compassionate appointment under Dying-in-Harness, Rules has been rejected. He argued that since the father of the petitioner has been declared dead by the competent Civil Court, the petitioner is entitled for compassionate appointment under Dying- in-Harness Rules, 1974. He further argued that the direction issued by this Court in Writ Petition No.1339 (S/S) of 2005 are binding upon the respondents and orders dated 29.12.2006, 7.11.2007 and 8.02.2008 have been passed by the respondents in utter violation of judgment and order dated 21.06.2006 passed in Writ Petition No.1339 (S/S) of 2005. He further argued that the action of the respondents is wilful disobedience of order of this Court dated 21.06.2006 and respondents authorities deserve to be punished for committing contempt of this Court’s order dated 21.06.2006. Respondent nos.2, 3 and 4 filed their counter affidavits denying the claim of the petitioner mainly on 6 the ground that Dying-in-Harness Rules, 1974 do not apply in the case of a missing employee. Stand taken by them in paragraph 3-F of the counter affidavit is that under Dying-in-Harness, Rules 1974 before providing employment to the dependent of deceased employee, it must be necessary to ascertain the actual death of the employee and there is no such law prevailing in the State which provides employment to the dependent of missing employee. This stand of the respondents is misconceived especially when the father of the petitioner has been declared dead by the competent Civil Court and respondents themselves have released all dues by treating the father of the petitioner as dead. Learned Standing counsel argued that the memorandum dated 09.10.1998 issued by the Central Government is not applicable in the State of Uttarakhand and petitioner cannot be granted relief on the basis of memorandum issued by the Central Government. It is true that the memorandum issued by the Central Government is not applicable in the matter of State but in the present case the respondents cannot and should not take such objection in view of the judgment dated 21.06.2006 which was never challenged by the respondents and is binding upon them. Learned Standing counsel further argued that the claim of the petitioner is barred by limitation. This plea of the respondents is also misconceived in view of the fact that father of the petitioner disappeared on 17.01.1998 and he was declared dead by the competent Court under Section 108 of the Indian Evidence Act, 1872 only after expiry of seven years i.e. 16.01.2005. 7 Thus, the application moved by the petitioner for compassionate appointment is within time. The respondents while passing the orders dated 15.10.2007, 07.11.2007 and 08.02.2008 have not complied the order of this Court dated 21.06.2006 in letter and spirit. Learned counsel for the petitioner prayed that contempt proceeding may be initiated against them. This Court does not purpose to take action against the respondents for committing contempt of Court’s order but warns the officers, who passed aforesaid orders, to be cautious in future. In view of the aforesaid discussion, the writ petition succeeds and is allowed. Order dated 07.11.2007 passed by Deputy Director Government Press, Uttarakhand, Roorkee and 08.02.2008 passed by Joint Director Government Press, Uttarakhand Roorkee are quashed. The respondents are directed to reconsider the case of the petitioner and pass appropriate order for compassionate appointment under Dying-in-Harness Rules, 1974 by treating Late Sukhpal as dead as defined under Section 2(b) of Dying-in-Harness Rules, 1974 and also by treating the petitioner as dependent of deceased employee. The respondents are directed to pass necessary orders within a period of three weeks from the date of production of certified copy of the order. The writ petition is allowed. No order as to cost. 06.11.2008 Arti (V.K. Bist, J.)