IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 734 of 2009 (S/S) Smt. Anita Sharma,W/o Sri Subhash Chandra Sharma, R/o Vilalge Behdeki Saidabad, Tehsil Roorkee, District Haridwar …….Petitioner Versus 1. State of Uttarakhand, through Secretary, Health & Family Welfare, Civil Secretariat, Dehradun 2. Director, Health & Family Welfare, Chandra Nagar, Dehradun 3. Chief Medical Officer, Haridwar ………Respondents. Shri Ajay Veer Pundeer, Advocate present for the petitioners. Shri N.P. Shah, Standing Counsel present for the respondents Dated: Nainital: the 24th Day of November, 2009. Hon’ble Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 of Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the order dated 24.09.2008 passed by the respondent No. 3 whereby the petitioner’s case for appointment under U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974, is rejected. 2. Heard learned counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit. 3. Brief facts of the case are that the petitioner is widow of Subhash Chandra Sharma, who was a Ward Boy in Civil Hospital, Roorkee. In the year 1994, he went missing. On this, petitioner lodged a first information report with police station Gangnahar Roorkee, District Haridwar. On the basis of which, Crime No. 215 of 1995 was registered, relating to offence punishable under section 364 I.P.C. After investigation, the police submitted charge-sheet against one Narendra on 01.10.1997. However, dead body of Subhash Chandra Sharma could not be recovered. Earlier, the petitioner filed writ petition No. 104/2003(SS), challenging the order dated 19.09.2002 passed by respondent No. 3, rejecting the representation of the petitioner for her appointment under U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974. Said writ petition was disposed by this Court vide order dated 23.03.2004 directing the respondents to consider the case of the petitioner for employment under aforesaid rules. It appears that thereafter the respondents asked for proof of death of the employee. It is stated in the writ petition that the petitioner thereafter instituted suit No. 84 of 2007 before Civil Judge (Sr. Div.), Roorkee, claiming a declaration of death of her husband (Subhash Chandra Sharma). The said Court decreed the suit on 30th of October, 2007. Copy of the decree passed by the Civil Court is annexed as Annexure-2 to this writ petition. It is pleaded in the writ petition that even after the declaration of civil death, the respondent has been denied appointment under the aforesaid rules, hence this writ petition. 4. A counter affidavit has been filed on behalf of the respondents, in which it has been stated that since the petitioner’s husband has not died a natural death but was found missing, as such his case cannot be considered for appointment under U.P. Recruitment of Dependants of Government Servants Rules, 1974. Relying on the case of LIC Vs. Asha Ram Ramchandra Ambekar AIR 1994 (2) SCC page 718, it has been stated that merely on the ground of sympathy, petitioner cannot claim appointment on compassionate ground. 5. In the rejoinder affidavit, petitioner has reiterated the averments made in the writ petition. 6. Rule 5 of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 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 qualification 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 recruitment 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.” 7. Expression used in the aforesaid rule is “In case a Government servant dies in harness ………………………”. There is no distinction made between natural death and death declared by court, in the rule. Clause (b) of Rule 2 defines expression “deceased Government servant” and provides that it means a Government servant who dies while in service. The definition also nowhere makes a distinction between a natural death and death declared by court. 8. Section 108 of the Indian Evidence Act, 1872 provides that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for 7 years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive, shifts to the person who affirms it. In Special Appeal No. 173/2008 Director General of Police Vs. Banshi Dhar Bhatt decided on 05.10.2009, Division Bench of this Court has held that for the purposes or rule 5 of U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974, if it is shown that after the employee is reported to be missing, first information report is lodged and seven years have passed, employer department also could not come to know of the whereabouts of the employee and further that where a decree has been obtained by the employee from a Civil Court declaring the person’s death, the application for compassionate appointment under the rules, cannot be denied merely on the ground that the person (employee) had not died natural death, provided other conditions are fulfilled. Facts of the present case are similar to the one in which the Division Bench of this Court has passed the judgment dated 05.10.2009, rendered above. 9. Learned counsel for the respondents argued that five years period has already been expired within which the petitioner could have moved an application for her appointment as such her appointment cannot be considered under the aforesaid rules. However, perusal of proviso to sub-rule (1) to rule 5 shows that the State Government may relax said requirement in appropriate cases. 11. For the reasons as discussed above, this writ petition is allowed, the impugned order dated 24.09.2008 passed by respondent No. 3 is hereby quashed. The respondents are directed to consider the case of the petitioner for appointment on compassionate ground in the light of the observations made above. (Prafulla C. Pant, J.) 24.11.2009 Ravi