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2006 Supreme(All) 1683
ALLAHABAD HIGH COURT
M.M.Ghildiyal
PITAMBER LAL
Versus
STATE OF UTTARANCHAL
Decided On : 21 June 2006
Writ Petition No. 1339 of 2005
G.S.BHATT, Lokendra Dobhal,
The main legal point established in the judgment is the application of the presumption of death under Section 108 of the Indian Evidence Act and the conditions for compassionate appointment of a missing government servant as per the Office Memorandum in determining the entitlement for appointment under Dying in Harness Rules, 1974.
Headnote:
Mandamus - Appointment under Dying in Harness Rules - Indian Evidence Act, 1872, Section 108 - U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 - Compassionate appointment - Missing Government Servant - Office Memorandum of Department of Personnel and Training, Government of India - [SUBJECT] - [Indian Evidence Act, 1872, Section 108, U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974, Office Memorandum of Department of Personnel and Training, Government of India] - The court discussed the provisions of the Indian Evidence Act, 1872, Section 108, U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974, and the Office Memorandum of Department of Personnel and Training, Government of India, to determine the entitlement of the petitioner for appointment under Dying in Harness Rules. The court emphasized the presumption of death under Section 108 of the Indian Evidence Act and the conditions for compassionate appointment of a missing government servant as per the Office Memorandum.
Fact of the Case:
The petitioner sought a writ of mandamus to direct the respondents to make payment of CIS amount with interest to the nominee of a missing government servant and to appoint the petitioner in government service in place of his deceased father. The father of the petitioner disappeared in 1998, and the petitioner's mother sought family pension and appointment for her son under Dying in Harness Rules, 1974.
Finding of the Court:
The court found that the petitioner was entitled to appointment under Dying in Harness Rules, 1974, as the father's disappearance for over 7 years led to the presumption of death under Section 108 of the Indian Evidence Act. The court quashed the order refusing the appointment and directed the respondents to consider the petitioner's case for appointment under the rules.
Issues: The issues involved the entitlement of the petitioner for appointment under Dying in Harness Rules, 1974, in the case of the disappearance of a government servant and the application of the Indian Evidence Act, 1872, Section 108, and the Office Memorandum of Department of Personnel and Training, Government of India.
Ratio Decidendi: The court held that the presumption of death under Section 108 of the Indian Evidence Act applied to the case, and the conditions for compassionate appointment of a missing government servant as per the Office Memorandum were relevant in determining the petitioner's entitlement.
Final Decision: The writ petition was allowed, the order refusing the appointment was quashed, and the respondents were directed to consider the petitioner's case for appointment under Dying in Harness Rules, 1974.
2. By means of this writ petition, the petitioners have prayed for the fol lowing reliefs :
(i) issue a writ, order, or direction in the nature of Mandamus directing the respondents to make payment of CIS amount with interest of Sri Sukhlal to his nominee Smt. Kalawati.
(ii) writ, order, or direction in the nature of Mandamus directing the respondents to appoint Pitamber Lal, petitioner no. 1 in Govern ment Service according to his qualification in place of his de ceased father Sri Sukhlal.
(Hi) any other writ, order or direction that this Honble Court may deem fit in the interest of justice;
(iv) costs.
3. Amendment application was moved by the petitioners on 15-06-2006 to add one more prayer in the writ peti tion, as prayer I (a) for quashing of the order dated 22-07-2005 passed by Joint Secretary, Uttaranchal Administration, Dehradun refusing to give appointment to the petitioner and further to implead the Joint Secretary, Uttaranchal Admin istration, Dehradun as respondent no 5.
4. Amendment application was al lowed and petitioners were permitted to add the aforesaid prayer.
5. The facts of the case are that pe titioner no. 1 is the son of late Sri Sukhlal, his date of birth is 07-09- 1972 and has passed B. Sc. in the year 1995 from Chaudhary Charan Singh Univer sity, Meerut. Father of the petitioner no. 1 late Sri Sukhlal was appointed on 03-09-1979 on the post of Foundry Assist ant in Government Photo Litho Press, Roorkee, District - Haridwar and contin ued to work in the Department till 16-01-1998. Sri Sukhlal disappeared on 1-01 -1998. He was searched in every pos sible places but he could not be found or traced. Consequently, Smt. Kalawati, wife of Sri Sukhlal, petitioner no. 2 lodged FIR on 19-01-1998 with Police Station - Gang Nahar, Roorkee. Direc tor, Government Photo Litho Press, Roorkee was informed on 19-01-1998 about the disappearance of Sri Sukhlal and for necessary action by the Depart ment.
6. In turn, Deputy Director, Govern ment Photo Litho Press, Roorkee in formed Station Officer, Incharge, Police Station - Gang Nahar, Roorkee about disappearance of Sri Sukhlal. On 28-03-1998, Police Station - Gang Nahar, Roorkee, informed the Assistant Direc tor, Government Photo Litho Press, Roorkee that the matter was deeply ex amined and local police made all efforts to trace out Sri Sukhlal but he could not be traced. On 15-04-1999, final report sent by the Police Station - Gang Nahar, Roorkee, to the Assistant Director, Gov ernment Photo Litho Press, Roorkee that in spite of all possible efforts Sri Sukhlal could not be traced.
7. Thereafter, petitioner no. 2 moved an application to Assistant Direc tor, Government Photo Litho Press, Roorkee to make payment of all dues including family pension and also to provide appointment to her son under Dying in Harness Rules, 1974. Assistant Director, Government Photo Litho Press, Roorkee directed petitioner no. 2, who was nominee of Sri Sukhlal, to file in demnity bond so that payment be made to her. Petitioner no. 2 filed indemnity bond along with copy of the FIR before Deputy Director, Government Photo Litho Press, Roorkee. Respondents sanc tioned family pension to Smt. Kalawati vide order dated 26-09-2000. On 28-01-2002 petitioner no. 1 filed application before Deputy Director, Government Photo Litho Press, Roorkee to provide him appointment under Dying in Har ness Rules, 1974.
8. Number of applications were moved by the petitioner no. 1 and ap plication dated 07-03-2005 was also moved by petitioner no. 2 for payment of Insurance amount of Sri Sukhlal and to appoint her son on compassionate ground.
9. Deputy Director, Government Photo Litho Press, Roorkee, wrote let ters dated 11-05-2005 and 07-06- 2005 to the Secretary of Industrial Develop ment, Uttaranchal, Dehradun stating therein that Sri Sukhlal, who was em ployee of Government Photo
