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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Rajan Roy, Om Prakash Shukla, JJ.
Amardeep Kashyap – Appellant
Versus
State Of U.P. Thru. Addl. Chief Secy. Msme Lko. And Others – Respondent
Special Appeal Defective No. - 436 of 2024
Decided On : 24-10-2024
(A) Indian Evidence Act, 1872 - Sections 107 and 108 - Compassionate appointment - Claim for compassionate appointment rejected as the father of the appellant was presumed to have died only after the civil death declaration on 16.10.2019, post superannuation age of 60 years on 30.11.2013 - The court emphasized that the presumption of death under Section 108 arises only after seven years and does not allow for retrospective effect. (Paras 11, 13, 24)
(B) Compassionate Appointment - Eligibility - The court ruled that compassionate appointment can only be granted if the employee died in harness, which was not established in this case. (Paras 11, 24)
Facts of the case:
The appellant's father went missing on 25.06.2012 and was declared civilly dead on 22.04.2022. The appellant sought compassionate appointment based on this declaration, but the court found he had already superannuated by the time of the declaration.
Findings of Court:
The court upheld the rejection of the compassionate appointment claim, stating the father could not be presumed dead before the civil declaration and had already reached retirement age.
Issues: The main issue was whether the date of presumed death for compassionate appointment could be earlier than the civil death declaration.
Ratio Decidendi: The court held that the presumption of death under Section 108 does not allow for a presumption of death prior to the expiration of seven years and emphasized the need for evidence to establish a specific date of death.
Result: Special Appeal dismissed.
JUDGMENT :
Om Prakash Shukla, J.
1. Heard Sri Om Prakash Mani Tripathi, learned counsel for the appellant and Sri Gopal Kumar Srivastava, learned Standing Counsel for State-respondents.
2. The present Special Appeal stems out of an order dated 05.04.2024 and dated 12.07.2024 ('Impugned orders') passed by learned Single Judge of this Court in Writ A No.2731 of 2024 (Amardeep Kashyap Vs. State of U.P. and Others) and Civil Misc. Review Application Defective No.117 of 2024 respectively. Apparently, vide the said impugned order, the learned Single Judge did not find any illegality in the order dated 03.02.2023 passed by the Deputy Commissioner, Industries, Gonda wherein the claim of the appellant for compassionate appointment was rejected by the Deputy Commissioner.
3. The factual matrix of the case lies in a narrow compass. The appellant's father, Sri Ghanshyam Kashyap was working as a peon/Anuchar at Jila Udyog Kendra, Gonda, Uttar Pradesh and went missing on 25.06.2012, which although was reported by his family on the same day, however a formal missing complaint came to be filed on 27.06.2012. Apparently, despite extensive efforts to trace Sri Ghanshyam Kashyap they were futile. In the intervening period, since record reveal that the date of birth of the appellant's father Sri Ghanshyam was 08.11.1953, he attained the age of 60 years on 30.11.2013. No retirement benefits were extended by the respondent-Zila Udyog Kendra, Gonda in the absence of clarity of status of Sri Ghanshyam as confirmed by them vide letter dated 19.12.2019 wherein the representation of the mother of the appellant was rejected for providing of any financial help or compassionate appointment before the completion of seven years from the date of missing.
4. Subsequently, after a lapse of period of seven years, the family of the appellant filed a suit on 16.10.2019, seeking a declaration of Sri Ghanshyam's civil death, which came to be allowed by the learned Civil Judge, Senior Division, Gonda vide a judgment dated 22.04.2022 and during the pendency of the said suit, the mother of the appellant, Mrs. Urmila Devi also died on 07.05.2021.
5. It is claimed by the appellant that after declaration of civil death by the court, he received an appointment letter dated 28.05.2022 for the position of chowkidar from the Deputy Commissioner, Zila Udyog and Protsahan Kendra, Gonda. However, when he went to join on the said position, he was not allowed to join for extraneous reasons and even his original appointment letter was taken away by the said respondent and was directed to produce death certificate of his father. The appellant thereafter obtained a death certificate issued by the Registrar of Birth and Death, which mentioned the date of death of the appellant's father to be 16.10.2019.
6. Thus, being aggrieved, the appellant filed Writ A No.6138 of 2022 for payment of dues and emoluments of late Sri Ghanshyam to his family as well as for seeking compassionate appointment for the appellant. However, the said Writ was disposed of vide an order dated 20.09.2022, directing the appellant to file a detailed representation raising all his grievance and correspondingly the respondent was directed to dispose the said representation within a time bound manner by a reasoned and speaking order.
7. However, the said representation was rejected on 03.02.2023 by the respondent authority, which came to be challenged by the appellant vide Writ A No.2731 of 2024 seeking quashing/setting aside of the order dated 03.02.2023 and praying for appointment to the appellant on the compassionate ground under the Dying in Harness Rules, 1974. The learned Single Judge after hearing the appellant, while dismissing the Writ Petition vide order dated 05.04.2024 came to observe as herein below:-
The presumption of death under Section 108 of the Indian Evidence Act arises only after seven years, and compassionate appointment requires proof of death during service, not merely a civil declarati....
The presumption of death under Section 108 of the Evidence Act is strictly limited to the fact of death, while the exact date of death must be proven by credible evidence.
[The court established that compassionate appointment claims must adhere to the rules in effect at the time of application, and that the presumption of civil death does not negate prior dismissals or....
The presumption of death under Sections 107 and 108 of the Indian Evidence Act arises only when a legal question regarding a person's status is presented in court.
Point of Law - The principle enunciated in the provisions of the Evidence Act, the Specific Relief Act and the precedents relied on would make it clear that the judgment is one rendered in the facts ....
Compassionate appointment applications by minor dependents must be made within prescribed scheme time-limits; failure to adhere bars consideration post-attainment of majority.
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