Allahabad High Court
Mori Permila Lal vs State Of U.P. Thru ... on 15 December, 2015
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?AFR
Court No. - 10
Case :- SERVICE SINGLE No. - 7110 of 2015
Petitioner :- Mori Permila Lal
Respondent :- State Of U.P. Thru Prin.Secy.Deptt.Of Rural Development &Ors
Counsel for Petitioner :- Vidhu Bhushan Kalia,Rajat Rajan Singh
Counsel for Respondent :- C.S.C.
Hon'ble Rajan Roy,J.
Heard learned counsel for the parties.
The petitioner herein is the daughter of Late Shri Manohar Lal who was a government servant.
Shri Mahohar Lal is said to have gone missing on 20th December, 2005. The petitioner and other family members made serious efforts to search him out and even issued advertisement mentioning his missing status. Ultimately a civil suit being Regular Suit No. 1547 of 2013 was filed seeking a declaration of civil death considering the lapse of 7 years from the date he went missing. A missing report had earlier been filed with the police. The aforesaid suit was decreed on 27.03.2015 and a declaration was made regarding the civil death of Manohar Lal the alleged father of the petitioner. Now the daughter has come forward seeking compassionate appointment in his place in accordance with the U.P. Recruitment of Dependent of Government Servant (Dying in Harness) Rules, 1974.
The case at hand presents a peculiar factual scenario. It is not a case of natural death of the father but civil death. Section 108 of the Indian Evidence Act provides that when the question is whether a man is alive or dead, and it 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 (shifted to) the person who affirms it.
There is a decree of the Civil Court declaring the civil death of Manohar Lal in terms of Section 107 and 108 of the Indian Evidence Act. It is not known as to whether any appeal was preferred against the said judgment and decree or not. The petitioner denies having knowledge of any such appeal or notice thereof through her counsel though she has not pleaded so in this writ petition. The petitioner relies upon judgments of the Division Bench of this Court reported in 2014 (8) ADJ 11, District Judge Vs. Saurabh Kumar; 2011 (4) ADJ 874, Ramakant Singh Vs. State of U.P. and Ors. and a judgment of the single Judge reported in 2005 (1) AWC 909 All., Ajay Kumar Shukla Vs. State of U.P. and Ors.
Normally an application for compassionate appointment under the Rules of 1974 is required to be given within 5 years from the date of death of the deceased employee who had died in harness but considering the peculiar facts of the present case where the civil death of Mahohar Lal could neither be declared nor presumed until a lapse of 7 years in terms of Section 108 of the Indian Evidence Act, no such application could have been submitted. The said application was in fact submitted on 22.12.2012 i.e. after expiry of 7 years. The declaring decree itself has been passed by the Civil Court on 27.03.2015.
In these circumstances, the delay is not a factor to be considered herein as the petitioner could not have approached the authority nor this Court earlier and has in fact done so within a reasonable period after obtaining the decree from the Civil Court.
In these circumstances, the civil death of Manohar Lal before attaining the age of superannuation is to be treated as a death in harness attracting the Rules of 1974 specially in view of the pronouncements relied upon by the petitioner.
The District Development Officer, Bahraich has recommended the case of the petitioner for compassionate appointment and sought approval of the Commissioner, Rural Development, U.P., Lucknow in this regard.
Considering the facts of the case, the writ petition is disposed of with a direction to the opposite parties to consider the case of the petitioner for compassionate appointment in accordance with the provisions of the Rules, 1974 but the same shall not be rejected on the ground of delay. The matter shall be considered within a period of two months from the date of production of a certified copy of this order.
With the aforesaid observations, the writ petition is disposed of.
Order Date :- 15.12.2015
R.K.P.
