IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. Writ Petition No. 2033 (S/S) 2001 (Old no. 44033 of 2000) Suresh Prasad S/o late I.R. Tamta, Resident of Katayatbadha village, Post office Bageshwar, District Bageshwar. .......Petitioner. Versus 1. Union of India, through Secretary Ministry of Home, Govt. of India, New Delhi, 2. Adjutant 1st Battalion, India- Tebatian Border Police, Ministry of Home/Govt. of India, Post and District, Dodha (Javak), Jammu & Kashmir, 3. Commandant/Adjutant, 2nd Battalion, India-Tebatian Border Police, (MHA), Govt. of India, Post Seemadwar, District- Dehradun. ......Respondents. Sri B.S. Negi, learned counsel for the petitioner, Sri Arvind Vashishtha, learned Asstt. Solicitor General for Union of India. Hon’ble M.M. Ghildiyal, J. Heard Sri B.S. Negi, leaned counsel for the petitioner and Sri Arvind Vashishtha, learned Asstt. Solicitor General for Union of India/respondents. By means of this writ petition, the petitioner has prayed for the foll0wiong relief:- (i) Writ, order or direction in the nature of mandamus commanding the respondent no. 2 to appoint the petitioner as per his qualification in the India- 2 Tibetan Boarder Police on the post for which he is eligible and be paid salary accordingly. (ii) Writ, order or direction of a suitable nature as this Hon’ble Court may deem fit and proper in the circumstances of the present case, (iii) Award costs to the petitioner. Stand of the petitioner is that his father who was working as Subedar in India-Tibetan Border (ITBP) was missed in an operation on 13.12.1986 and was declared as dead on 20.12.1987 vide an order issued by the Department. On 23.09.1989, the mother of petitioner sought discharge certificate of her husband and also requested the Department to provide appointment to her son under Dying-in-Harness Rules. The respondents in their reply, sent to the mother of the petitioner on 16.10.1989, have stated that since her husband was missed, therefore the discharge certificated cannot be issued, however death certificate to that effect can only be issued. So far the question for providing appointment to her son is concerned, the respondents have stated that as the son of the deceased had not passed High School examinations, which is the minimum qualification for being appointed as Constable in India-Tibetan Border Police, he cannot be provided appointment. The respondents further asked the mother of the petitioner to move appropriate application alongwith all the relevant documents and particulars of her husband. After receipt of this letter, the petitioner made application again on 12th November 1989 requesting to the Commandant to provide him appointment as Sepoy in India-Tibetan Border Police. The said application is annexed as annexure no. 3 to the writ petition. 3 The Commandant, India-Tibetan Border Police vide letter dated 21.02.1994 requested the Deputy Inspector General of Garhwal India-Tibetan Border Police, Seemadwar, Dehradun that since no recruitment is going on in the Battalion, the petitioner may be considered for recruitment in another Battalion of Garhwal region. This order was passed by the Commandant/respondent no. 3 after about 5 years from the date of receiving the application from the mother of the petitioner. The petitioner, thereafter moved separate application to the respondents and the respondents vide letter dated 23.05.2000 directed petitioner’s mother that under the directions and guidelines of Govt. of India, appointment cannot be provided to the dependent of an employee under Dying-in- Harness Rules after 5 years’ of the death of such employee as such, application of the mother of the petitioner cannot be considered after 5 years of the death of petitioner’s father. This act on the part of the respondent no. 3 is quite unreasonable and untenable. Firstly, the respondent has passed order after about six years on the application, which was moved in the year 1989 well within time of five years’ of the death of petitioner’s father and in that letter too, he forwarded the matter to the Deputy Inspector General, India-Tibetan Border Police to consider the case of petitioner for providing him appointment under Dying-in-Harness Rules in other Battalion where the recruitment is possible. However, the reason for not providing appointment to the petitioner in the Battalion given by the respondent/Commandant is that no recruitment is going on in the Battalion where the petitioner’s father was working. Since, the petitioner has not applied for appointment under 4 general recruitment, rather the application was for appointment under Dying-in-Harness Rules, the reason given by the respondent is quite unreasonable. So far the order dated 23.05.2000 is concerned, that too is not valid. As vide order letter dated 23.05.2000, the application of the petitioner has been rejected by the respondents on the ground that after 5 years of the death of an employee, the dependants of such employee cannot be appointed under Dying-in-Harness Rules. It is also an apparent mistake on the part of the respondents because the application for appointment was moved by the petitioner well within time. The petitioner’s father was found missing since 1986 and he was declared as dead in the year 1987 whereas; the application for appointment was firstly moved in the year 1989. In any case, since the petitioner’s father was declared as dead by the Department in the year 1987, about 20 years’ have been elapsed after the petitioner’s father was declared as dead, this Court do not find it justified to issue directions to the respondents for providing appointment to the petitioner under Dying-in- Harness Rules, after such a long period i.e. after 20 years’ of the death of petitioner’s father. Besides it, again an order was passed by the respondents that the petitioner cannot be recruited in India-Tibetan Border Police, as he has become overage. The petitioner is about 30 years’ of age. Learned Asstt. Solicitor General has contended that the age prescribed for recruitment in India-Tibetan Border Police is 18 to 23 years. 5 Since, the petitioner has already become overage i.e. 30 years of his age and the father of the petitioner has been declared dead about 20 years back, it will not be justified to direct the respondents to provide appointment to the dependants of an employee who has been declared as dead 20 years’ back. The petition lacks merit and is liable to be dismissed. Accordingly, the petition is dismissed. No order as to costs. (M.M. Ghildiyal, J.) March 6, 2007: NCM: