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ALLAHABAD HIGH COURT
Ran Vijai Singh, J.
Gyanti -Appellant
Versus
State of U.P.and Others -Respondent
Civil Misc.Writ Petition No. 6551 of 2008
Decided On : 18-01-2012
Compassionate Appointment - Civil Death - Indian Evidence Act, 1872, Section 108 - Rules of 1974 - The court discussed the provisions of the Rules of 1974 and the Indian Evidence Act, particularly Section 108, and their interpretation in the context of compassionate appointment. The court highlighted the overriding effect of the rules and the legal implications of civil death, ultimately ruling in favor of the petitioner.
Fact of the Case:
The petitioner, an unmarried daughter of a deceased constable, sought compassionate appointment. The appointment was refused based on a Government Order and Circular, citing civil death under Section 108 of the Indian Evidence Act.
Finding of the Court:
The court found that the petitioner was entitled to be considered for appointment under the Rules of 1974, and the distinction drawn by the State government based on civil death was contrary to the object of the rules.
Issues: The issues revolved around the interpretation of the Rules of 1974, the legal implications of civil death under Section 108 of the Indian Evidence Act, and the validity of the Government Order and Circular in refusing the compassionate appointment.
Ratio Decidendi: The court held that the petitioner, as a dependent on account of civil death, is entitled to be considered under the Rules of 1974, and no distinction can be drawn between civil death and death otherwise.
Final Decision: The writ petition succeeded, and the Government Order and Circular were quashed. The Police Headquarter was directed to consider the petitioner's case for appointment on compassionate grounds within two months.
The petitioner, claiming herself to be unmarried daughter of late Ram Jhalak, who was appointed as Constable in U.P. Civil Police, approached this Court under Article 226 of the Constitution of India for redressal of her grievance with regard to the compassionate appointment. It is stated in the writ petition that the petitioner's father was constable in Civil Police and he was abducted while he was in the service. Consequently an F.I.R. was lodged by one Sub-Inspector namely Sri Chandra Dev Singh, which was registered as Case Crime No. 37/1998, under Section 364 I.P.C on 9.3.1998. In the aforesaid case, a final report was submitted to the effect that his whereabouts was not known.
2. It appears taking shelter of Section 108 of Indian Evidence Act, the petitioner filed an application for compassionate appointment in the year 2004 to be more specific 31.12.2004 claiming civil death of her father. At one point of time, the department has initiated proceedings for offering appointment on compassionate ground but later on taking note of the Government Order dated 9th December, 1998 and Circular of the Police Headquarter dated 27th August, 2007, the appointment was refused.
3. A counter affidavit has been filed by the State respondents in which the factum of lodging an F.I.R. under Section 364 I.P.C. on 9.3.1998, the submission of final report, the acceptance of the same by the Court and the petitioner's application seeking appointment on compassionate appointment in view of the provisions contained under Section 108 has not been disputed. What has been stated in the counter affidavit is that in view of the Government Order dated 9th December, 1998 and the Circular of the Police Headquarter dated 27th August, 2007, the dependent of the deceased on account of presumption of civil death are not entitled to get benefit of U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (herein after referred to as Rules)
4. A rejoinder affidavit has also been filed stating therein that the petitioner falls in the ambit of the Rules of 1974 and the Government Order/Circular issued by the State Government or the Police Headquarter are ultravires to the Rules of 1974.
5. I have heard learned counsel for the petitioner and learned Standing Counsel.
6. For appreciating the controversy, the various provisions contained in the Rules are required to be looked into. The rule 2 (b) of the aforesaid Rules provides "deceased Government servant" means a Government servant who dies while in service. " Sub-rule (c) of Rule 2 provides the definition of family which shall include (i) wife or husband (ii) sons, and (iii) unmarried and widowed daughters. Rule 3 talks about the application of the rules according to which these rules shall apply to recruitment of dependants of the deceased Government servants to public services and posts in connection with the affairs of State of Uttar Pradesh, except services and posts which are within the purview of the Uttar Pradesh Public Service Commission. Rule 4 talks about the overriding effect of the rules notwithstanding anything to the contrary contained in any rules, regulations or orders in force at the commencement of the rules. Rule 5 of the aforesaid Rule provides recruitment of a member of the family of the deceased which is reproduced below :-
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 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 suitab
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