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2002 Supreme(All) 5
IN THE HIGH COURT OF ALLAHABAD
R. B. Misra, J.
SIMA DEVI - Appellant
Versus
SENIOR SUPERINTENDENT OF POLICE, JHANSI AND ORS. - Respondents
C. M. W. P. 19301 Of 1998
Decided On : 01/03/2002
Ashok Khare, N.D.KESARI, R.K.TIWARI
The court established that the benefit of giving appointment on compassionate ground had to be extended to the dependent of a person who died in service, regardless of the manner and cause of death, as the rules did not specify the manner of death.
Headnote:
Compassionate Ground - Appointment of Dependants of Government Servant - U. P. Recruitment of Dependants of Government Servant (Dying-in-Harness) Rules, 1974 - Section 108 of the Indian Evidence Act, 1872
Fact of the Case:
The petitioner sought appointment on compassionate ground under the U. P. Recruitment of Dependants of Government Servant (Dying-in-Harness) Rules, 1974, as her husband, a constable, had been missing since 1988 and was presumed dead under Section 108 of the Indian Evidence Act, 1872.
Finding of the Court:
The court found that the rules 1974 did not specify the manner of death, and thus, the death caused by any possible manner had to be considered for the purpose of extending benefits for giving employment to the dependent of a person who died in service.
Issues: The main issue was whether the petitioner was entitled to appointment on compassionate ground under the rules 1974, given the presumption of her husband's death under Section 108 of the Indian Evidence Act, 1872.
Ratio Decidendi: The court held that the benefit of giving appointment on compassionate ground had to be extended to the dependent of a person who died in service, and the manner and cause of death could be any, as the rules did not specify the manner of death.
Final Decision: The writ petition was allowed, and the respondents were directed to consider giving employment to the petitioner within six weeks.
( 1 ) THE petitioner has filed this writ petition seeking direction to give appointment on compassionate ground under the U. P. Recruitment of Dependants of Government Servant (Dying-in-Hamess) Rules, 1974 (known as "rule 1974" hereinafter) in place of her husband treating to have been died in the course of service.
( 2 ) HEARD learned counsel for the petitioner as well as learned standing counsel for the State.
( 3 ) THE relevant facts necessary for adjudication of this writ petition are that the husband of the petitioner whose date of birth was 12. 10. 1966, was appointed as Constable in Civil Police, Jhansi in 1988. He took casual leave on 29. 10. 1988 for three days but he did not return thereafter. An f. I. R. was lodged on 17. 3. 1989 on behalf of the father-in-law of the petitioner and after investigation, a final report was submitted on 26. 12. 1990 wherein the petitioners husband balendra Prasad Mishra had been declared missing. The petitioner was legally dependent being wife of Sri Balendra Prasad Mishra. The petitioner gave a representation to be appointed under rule 1974 to the Senior Superintendent of Police, Jhansi and the Senior Superintendent of police, Jhansi had also notified through news papers seeking objections, if any. from the public regarding missing Constable Sri Balendra Prasad Mishra but till date whereabouts of the husband of the petitioner is not known. The petitioner claims to have passed Intermediate examination and sought appointment on compassionate ground in the Ministerial Cadre. On the application of the petitioner, the Senior Superintendent of Police, Jhansi had recommended the deputy Inspector General (Karmik) Police Head Quarter, U. P. , Allahabad, by his letter dated 4. 11. 1996 for giving employment to the petitioner and to allocate the pensionary benefit to her. The other Police Officer, e. g. , the Additional Superintendent of Police, Department of Police (Karmik) Police Head Quarter, Lucknow, on 27. 9. 1997 had also requested to the Joint Secretary, home (Police) Section 10, U. P. Government, Lucknow (Annexure-6 to the writ petition), to give appointment to the petitioner under rules, 1974 treating the husband of the petitioner to have died during the course of employment.
( 4 ) LEARNED counsel for the petitioner has referred Section 108 of the Indian Evidence Act. 1872. The Section 108 is given as below :
"108. Burden of proving that person is alive who has not been heard of for seven years.-- (Provided that when) the question is whether a man is alive or dead, and tt is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is on the person who affirms it. "
( 5 ) IT has been submitted that the husband of the petitioner was missing from 29. 10. 1988 and has not yet been traceable in reference to the provisions of Section 108 of Evidence Act, therefore, it is to be presumed that the person has been dead in the eyes of law after the lapse of seven years and once the husband has been acknowledged to be dead during the course of service hence, the petitioner being the dependent should be given employment on compassionate ground under rules 1974. It has also been submitted that paras 8 and 9 of the rules 1974 also provide in detail the relaxation of age and other qualifications.
( 6 ) THE counter-affidavit has been filed on 4th January, 1999, and in para 4 of the counter-affidavit, it has been indicated that as per Government order dated 20. 3. 1987, the dependent of the missing person has to file a bond that in case the missing employee is present, all the payments made to the family would be adjusted. Such bond on demand from the respondents was submitted on 1. 12. 1997 and petitioner was given benefit of leave encashment on 18. 10. 1997. The family pension and gratuity have already been paid to the petitioner and steps were to be taken regarding the Provident Fund a
