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2010 Supreme(UK) 485
2011 (1) UAD 69
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice V.K. Bist
Writ Petition No. 1715 of 2005 (S/S)
SMT. VINITA KOTNALA – Petitioner
Versus
STATE OF UTTARANCHAL & ORS. – Respondents
Decided on : 30.07.2010
For the Petitioner:Mr. M.C. Kandpal, Sr. Advocate, assisted by Mr. S.S. Chaudhary, Advocate
For the Respondents: Mr. M.C. Tiwari, Addl. Chief Standing Counsel
Headnote:Indian Evidence Act, 1872, Sec. 108 and U.P. Recruitment of Dependants of Government Servants Dying-in-Harness Rules, 1974, R. 5 — Compassionate appointment — Dying in harness rules — Basis of — Held that one member of Government servant, who dies while in service, is entitled for suitable employment in Government service — In the present case, husband of the petitioner was not heard of for 7 years by those who would naturally have heard of him if he had been alive — In such circumstances the husband of the petitioner, treated to be dead for the purpose of grant of benefit under Dying-in-Harness Rules — Respondent authorities cannot deny the benefit to petitioner — Respondents directed to reconsider the application of the petitioner for compassionate appointment under Dying-in-Harness Rules u/S 2(b) of Rules. (Paras 7 to 10)
Hkkjrh; lk{; vf/kfu;e] 1872] /kkjk 108 vkSj mRrj izns'k jkT; deZpkjh e`rd vkfJr vuqdEik fu;qfDr fu;ekoyh] 1974] fu;e 5 & vuqdEik fu;qfDr ds ekeys esa e`rd vkfJr fu;ekoyh ,d vk/kkj gS & fu.kZ; esa dgk x;k fd lfoZl esa jgrs gq, tc ,d jkT; deZpkjh dh e`R;q gks tkrh gS rks mlds ifjokj dk ,d lnL; ljdkjh lsok esa ,d ;ksX; fu;qfDr dk vf/kdkjh cu tkrk gS & izLrqr dsl esa ;kph ds ifr dks 7 o"kZ rd mu yksxksa }kjk tks izkdfrd :i ls mls feyk djrs Fks ;fn og thfor gksrk ugha ns[kk x;k Fkk & ,slh ifjfLFkfr;ksa esa ;kpuh ds ifr dks vuqdEik fu;qfDr dk ykHk Lohdr djus gsrq e`rd ?kksf"kr fd;k x;k & mRrjnkrk vf/kdkjhx.k ;kpuh ds ykHk dks vLohdkj ugha dj ldrs & mRrjnkrkvksa dks ;kpuh ds izkFkZuk i= ij iqufoZpkj djrs gq, jkT; deZpkjh e`rd vkfJr vuqdEik fu;qfDr fu;ekoyh ds fu;e 2(b) ds vUrxZr dk;Zokgh fd;s tkus ds funsZ'k fn;s x;sA ¼izLrj 7 ls 10½
Present writ petition has been filed by the petitioner for quashing the order dated 05.10.2005 passed by the Superintendent of Police, Uttarkashi. Further prayer has been made for a direction to the respondents authorities to appoint the petitioner against Class IV post in the Department on the basis of U.P. Recruitment of Dependants of Government Servants Dying-in-Harness Rules, 1974 (hereinafter referred to as Dying-in-Harness Rules).
2. Brief facts of the case, as narrated in the petition, are that husband of the petitioner Durga Prasad joined Police Department in the year 1992. He got married with the petitioner in the year 1993 and out of wedlock one son and two daughters were born. The husband of the petitioner disappeared on 09.05.2003 and is missing from that day. The petitioner made representation before the Superintendent of Police, Uttarkashi, who on the basis of Government order dated 20.03.1987 completed all formalities and sent a letter to Director, Lekha Evam Haqdari, Uttaranchal and requested him to pass payment order in favour of the petitioner regarding family pension and gratuity. According to learned counsel for the petitioner this amount was sanctioned. Thereafter, the petitioner submitted several representations before the respondents authorities to appoint the petitioner in the Department on the basis of Dying-in-Harness Rules and also filed an application on 23.01.2005 for the physical measurement as well as medical for the purpose of appointment in the Department. On 06.02.2005 the Superintendent of Police, Pauri Garhwal directed the range Inspector to get the measurement as well as medical done and record the same in prescribed performa. The Superintendent of Police, Uttarkashi also forwarded the application of the petitioner to the Inspector General of Police (Karmic), Uttarakhand, Police Head Quarter, Dehradun for compassionate appointment and sought his guidance in the matter. After considering that the husband of the petitioner is not traceable for several years, the authorities considered the case of the petitioner and paid all the pensionary benefits and gratuity to the petitioner, but they refused to appoint the petitioner on the basis of Dying-in-Harness Rules. On 18.10.2005, the petitioner wrote to the Inspector general of Police (Karmic), Uttarakhand, Police Head Quarter, Dehradun stating therein that she has received all the payments but her appointment under Dying-in-Harness Rules has not been made. By this letter she requested for compassionate appointment. The Superintendent of Police, Uttarkashi vide letter dated 05.10.2005 informed the petitioner that case of missing person is not covered under Dying-in-Harness Rules. The case of the petitioner is that since her husband is not traceable for more than seven years, she is covered under Dying-in-Harness Rules and is entitled for compassionate appointment.
3. The respondents filed counter affidavit and submitted that on the basis of Dying-in-Harness Rules, all the pensionary benefits and gratuity had already been released in favour of the petitioner but the claim of the petitioner for compassionate appointment on the basis of Dying-in-Harness Rules is not admitted. The representation of the petitioner for compassionate appointment under the Dying-in-Harness Rules was referred to Police Headquarter, Dehradun. The Additional Inspector General of Police (Administrative), Police Headquarter, Dehradun vide letter dated 08.09.2005 clarified that the claim of the petitioner regarding compassionate appointment is not covered under Dying-in-Harness Rules, 1974.
4. I have heard Shri M.C. Kandpal, learned Senior Advocate assisted by Shri S.S. Chaudhary, learned counsel for the petitioner and Shri M.C. Tiwari, Additional Chief Standing Counsel for the State/respondents and perused the record.
5. Learned counsel for the petitioner submitted that once the case of the petitioner is considered under Dying-in-Harness Rules for payment of pensionar
