Allahabad High Court
Commandant, 8Th Bn.P.A.C., Bareilly ... vs Smt. Vimlesh Devi on 13 January, 2015
Bench: Rakesh Tiwari, Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 37 A.F.R. Case :- SPECIAL APPEAL No. - 90 of 2006 Appellant :- Commandant, 8th Bn. P.A.C., Bareilly and others Respondent :- Smt. Vimlesh Devi Counsel for Appellant :- S.C. Counsel for Respondent :- Shiv Nath Singh, R.B.Sharma, R.S. Maurya, Ram Sheel Sharma Hon'ble Rakesh Tiwari,J.
Hon'ble Mrs. Vijay Lakshmi,J.
(By Hon'ble Mrs. Vijay Lakshmi, J.) By means of this intra court appeal, the appellant i.e. Commandant, 8th Battalion, P.A.C., Bareilly has challenged the validity and correctness of the judgment dated 7.8.2000 passed in Civil Misc. Writ Petition No. 42740 of 1999, directing the appellant (who was respondent no. 1 in the writ petition) to allow the writ petitioner to work and to pay her salary.
We have heard Sri Bhola Nath Yadav representing the appellant and Sri Ram Sheel Sharma appearing for respondent/ writ petitioner.
Some brief facts giving rise to this appeal are that the writ petitioner Smt. Vimlesh Devi's husband, Sri Pratap Singh was working on the post of Constable at 8th Battalian, P.A.C., Bareilly, as a permanent employee. Due to some mental disorder, he was admitted in the Mental Hospital, Bareilly and was remained there under treatment from 20.3.1995 to 31.5.1995. After his discharge, the C.M.S., Mental Hospital recommended to take him on duty but without arms. On 26.7.1996 the husband of the writ petitioner Constable Pratap Singh disappeared. In respect of his missing, an F.I.R. was lodged on 30.8.1996 by the then Commandant of P.A.C. The petitioner/respondent also lodged an F.I.R. for the same on 15.10.1998. When despite search and investigation, he could not be traced out, he was declared dead by respondent authorities and his widow i.e. the petitioner/respondent Vimlesh Devi was served with letters dated 18.12.1998 and 21.12.1998 making some inquiries for the purposes of grant of earned leave encashment, gratuity and family pension etc. and also with a view to provide her some employment. Thereafter, Vimlesh Devi was appointed on the post of a cook on temporary basis for a short period and she was time and again employed on temporary basis in leave vacancies of various class IV employees. She was also provided a government accommodation in 73, New Block, Family Line, 8th Battalion, P.A.C., where she is still residing.
Vimlesh Devi applied for some permanent appointment under the Dying in Harness Rules, 1974 on the ground that as her husband was declared dead after his disappearance, she was entitled to be appointed as Class IV employee in her husband's place under Dying in Harness Rules, 1974. Although she was provided pensionary benefits, gratuity, accommodation, leave encashment etc. and temporary job by the appellant authorities, her claim for a permanent appointment under Dying in Harness Rules, 1974 was rejected by the authorities vide order dated 5.3.1999, on the ground that a missing person even being declared dead, was not covered under Dying in Harness Rules, 1974.
Being aggrieved by the aforesaid order, Vimlesh Devi filed Civil Misc. Writ Petition No. 42740 of 1999 seeking the following reliefs :
1.to issue any writ, order or direction in the nature of mandamus commanding the respondent to pay the petitioner entire amount of G.P.F., Pension and all other benefit accrued to her after the death of her husband at an earlier opportunity.
2.To issue any writ, order or direction in the nature of mandamus commanding the respondents to appoint the petitioner under Dying in Harness Rules on the post of 4th Class employee;
3.to issue any writ, order or direction in the nature of certiorari quashing the notice dated 18.8.1999 for eviction of the petitioner from the allotted accommodation to her (Annexure - 10) to the writ petition
4.to issue a writ, order or direction in the nature of mandamus commanding the respondents not to evict the petitioner from the allotted accommodation in 73, New Block Family Line, 8th Battalion, P.A.C., Bareilly and permit the petitioner to remain therein till the disposal of her application for appointing her under the Dying in Harness Rule;
5.to grant any other appropriate relief which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case;
The respondent/appellant P.A.C. Commandant filed counter affidavit stating therein that Dying in Harness Rules, 1974 is not applicable to the persons found missing and consequently declared dead. However, the P.A.C. Commandant, on sympathetic grounds and looking into the hardships faced by the petitioner, granted short term employment to her from time to time in vacancies caused due to leave/transfer etc., of any employee. The petitioner's application was referred to the higher authorities for consideration of her request to give her appointment under Dying in Harness Rules which was rejected vide letter dated 5.3.1999. The aforesaid letter dated 5.3.1999 was annexed as Annexure C.A. -4 to the counter affidavit which is quoted below :
lsok esa] lsukuk;d] 8oha okfguh] ih,lh] cjsyh d`i;k vius i= la[;k Hk&50@99 fnukad 23-2-99 dk lanHkZ xzg.k djus dk d"V djsa tks ykirk vkj{kh izrki flag dh iRuh Jherh foeys'k nsoh dks prqFkZ Js.kh ds in ij lsok;kstu ds lEcU/k esa gSA 2& funs'kkuqlkj voxr djkuk gS fd 'kklukns'k la[;k 2439@6&iq&10&98&1200¼4½96 fnukad 09-12-98 esa fn;s x;s funsZ'kksa ds vuqlkj mDr ykirk dkUl0 ds vkfJrksa dks fu;ekoyh ds vk/kkj ij lsok;kstu dk ykHk vuqeU; ugha gSA d`i;k rn~uqlkj lEcfU/kr dks lwfpr djus dh d`ik djsA g0 viBuh;
08-3-99 ¼ih0ds0feJk½ vij iqfyl v/kh{kd] fu0 iqfyl egkfujh{kd ih,lh] m0iz0 y[kuÅ It was further averred in counter affidavit that funds admissible to the petitioner after the death of the employee such as G.P.F., Earned Leave Encashment and other benefits have already been paid to her and she is regularly receiving provisional pension. In proof of aforesaid facts, copies of the several receipts were annexed with the counter affidavit as Annexure nos. C.A. 6 to C.A. 14.
The writ court on 7.8.2000 after hearing both the parties, passed the impugned order which is reproduced below :
"The petitioner through this petition has challenged for issue of a writ of mandamus to command the respondents to pay the salary. Learned counsel for the petitioner submitted that though she was appointed under Dying-in-Harness Rules but she is not being treated to be appointed under Dying-in-Harness Rules as in her appointment letter it was not mentioned. This Court vide order dated 18.4.2000 passed the following orders :- 'Heard learned counsel for the parties. Learned counsel for the petitioner submits that the petitioner was appointed vide order dated 7.8.1998. In case the petitioner was appointed in dying-in-harness rules, the petitioner shall be allowed to continue and be paid salary.' Learned counsel for petitioner submits that the petitioner has been appointed under Dying-in-Harness Rules . Learned counsel for the petitioner submitted that the respondents are not permitting the petitioner to work at the post she was working and the petitioner is entitled under Dying-in-Harness Rules. Since the petitioner has been engaged several times and was paid salary. She further submitted that the work is available. Therefore, the opposite parties are directed to allow the petitioner to work and pay salary. With the aforesaid direction, the petition is disposed of finally.
Dt. 7.8.2000"
The legality and correctness of the aforesaid order has been challenged in this special appeal mainly on the ground that the learned writ court has not considered the facts mentioned in the counter affidavit wherein the reasons for not giving appointment to the writ petitioner under the Dying-in-Harness Rules, 1974, were clearly mentioned. The appellant in support of his averments had given details of period during which the petitioner--respondent was given temporary appointment and had annexed relevant government orders but the learned Single Judge, without taking into consideration the averments made in counter affidavit has passed the impugned order, which is liable to be set aside.
Referring to the Government Order dated 20.3.1987, on the basis of which the then P.A.C. Commandant passed the order dated 18.12.1998, whereby declaring the husband of Vimlesh Devi, dead, learned Standing Counsel, Sri Bhola Nath Yadav, has submitted that this order dated 18.12.1998 was passed only for the purpose of payment of retiral dues to her and not for giving her compassionate appointment, to which she was not entitled at that time. Learned Standing Counsel has submitted that although by way of 9th Amendment Rule, 2011, Dying in Harness Rules, 1974 have been amended and now missing government employees have also been included but the condition is that they must have been declared dead by some competent Court after expiry of seven years from the date of their disappearance as provided under Section 108 of Indian Evidence Act, whereas in the case of petitioner, there is no such declaration. If the then Commandant, in his order dated 18.12.1998 has wrongly declared him dead, without expiry of seven years from his disappearance, that wrong cannot be permitted to perpetuate. Moreover the Amended Rule of 2011 can not be applied retrospectively. Learned Standing Counsel has argued that on the basis of a patently illegal order of the then P.A.C. Commandant, the requirement as provided in the 9th Amendment Rule 2011 are not fulfilled and unless a declaration about the death is obtained by a competent court, the claim of respondent does not deserve to be considered. More so, the petitioner- respondent has never challenged the order dated 8.3.1999 by which her claim for compassionate appointment was rejected by the higher authorities, which she ought to have.
After having heard learned counsel for both sides, the factual and legal position, which has emerged is as follows :-
1.The writ petitioner/respondent Vimlesh Devi's application for compassionate appointment under Dying in Harness Rules, 1974 was rejected vide order dated 5.3.1999 due to the reason that at that time, there was no such provision in Dying in Harness Rules, 1974 to include the claims for compassionate appointment of the dependants of missing persons, who were declared dead due to their being unheard or unseen for more than seven years.
2.The U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 was amended in 2011 vide G.O. No. 6-12-73-Ka-2/2011 T.C.-IV dated 22.12.2011 whereby missing government servants, who have been declared dead by a competent court have also been included. However, the aforesaid amendment has not been given retrospective effect.
3.Vimlesh Devi is still residing in the same Government accommodation which was allotted to her in the year 1997 when her husband disappeared which fact is evident from the address given by her in the counter affidavit filed by her in this special appeal.
4.Although the petitioner was not entitled for appointment under the Dying in Harness Rules but the authorities, taking a sympathetic view towards her, have given appointments to her from time to time but for a fixed period. The details of her appointment have been filed by the appellant/respondent which are as under :-
On 23.7.97 for 29 days as Temporary Cook On 28.8.97 for 44 days as Temporary Peon On 23.10.97 for 40 days as Temporary Sweeper On 28.1..98 for 15 days as Temporary Cook On 15.2.98 for 43 days as Temporary Cook On 2.4.98 for 45 days as Temporary Cook On 5.7.98 for 30 days as Temporary Cook On 6.8.98 for 15 days as Temporary Cook On 7.8.98 for .... days as Temporary Cook On 28.8.98 for 20 days as Temporary Sweeper On 20.9.98 for 45 days as Temporary Cook On 7.11.98 for 10 days as Temporary Cook On 9.12.98 for 10 days as Temporary Cook On 19.12.98 for 29 days as Temporary Cook On 3.2.99 for 35 days as Temporary Cook"
5.In the counter affidavit filed by her she has admitted that she has not challenged the order dated 8.3.1999 by which her claim for compassionate appointment was rejected.
6.She has also admitted that the appellant in compliance of order of this court has permitted her to work as daily wager but has stated that they have not provided her any job on permanent basis despite the fact that her husband was declared missing person dead since 26.7.1996 by the order dated 18.12.1998 passed by the then Commandant.
The learned counsel for the petitioner/respondent has repeatedly laid stress on the point that once the husband of petitioner was declared dead, she should have been given compassionate appointment. The aforesaid argument advanced by learned counsel for the respondent appears to have no force. A perusal of the order dated 18.12.1998 shows that this order has been passed after expiry of only about two and half year, from the date of disappearance of petitioner's husband and thus in the teeth of Section 108 of Evidence Act.
The law relating to a person found missing since more than seven years is provided in Section 108 of Indian Evidence Act, 1872 which makes a presumption of death of a person who has not been heard of for seven years. So far as the facts of case in hand are concerned; admittedly the husband of Vimlesh Devi disappeared on 27.7.1996. The then P.A.C. Commandant declared him as dead on 18.12.1998 i.e. only after expiry of about two and a half years. As such the husband of respondent-petitioner could not have been legally declared as dead before expiry of seven years as per the mandates of Section 108 of Evidence Act. Hence if any authority has declared him so, that order would naturally be illegal, having no force of law.
A perusal of the order dated 18.12.1998 clearly shows that it has been passed, only with a view to provide the petitioner-respondents, the benefits of Government Order dated 20.3.1987. On a coinjoint reading of the order dated 18.12.1998 and Government Order dated 20.3.1987, both reproduced below, we have no doubt that the then P.A.C. Commandant had passed the order dated 18.12.1998 only with a view to implement the government order dated 20.3.1987, however, he had made some mistake in chosing the right word and wrongly used the words "e`r ?kksf"kr djus ds QyLo:i". The aforesaid order dated 18.12.1998 is as follows: " vkns'k%& vkj{kh 10636 izrki flag fnukWd 25&7&95 ls ykirk gks x;k Fkk ftldh xqe'kqnxh fnukWd 30&8&95 dks lsukuk;d 8 oha okfguh ih0,0lh0 cjsyh }kjk rFkk fnukWd 15&10&98 dks mDr vkj{kh dh iRuh Jherh foeys'k nsoh }kjk Fkkuk dsUV tuin cjsyh ij ntZ djkbZ x;h FkhA 2%& ofj"B iqfyl v/kh{kd cjsyh ds vius i= la[;k& ,l0Vh0& ,l0 ,l0ih0&39@ @98 fnukWd 10&12&98 ds vuqlkj lwfpr fd;k gS fd bl vkj{kh izrki flag dh ryk'k dh x;h fdUrq og vHkh rd ugh feyk gS vkSj u gh mldk irk py ldk gSA 3%& vr% 'kklukns'k la[;k&lk0&3 th0vkbZ0&88@nl &909&87 fnukWd 20&3&87 esa fufgr izkfo/kkuksa ds vuqlkj xqe'kqnk vkj{kh 0635 izfriky flg ds fnukWd 26&7&95 ds e`r ?kksf"kr djus ds QyLo:i xq'k'kqnk gksus dh frfFk esa 98 fnol mikftZr vodk'k iw.kZ osru ij ns; gksus ij 'kklukns'k la[;k&lkekU; 4@1327@nl &200&77 fnukWd 28&5&79 esa fufgr izkfo/kkuksa ds vuqlkj ykirk@e`r ?kksf"kr izrki flag dh iRuh dks 98 fnol dh Lohd`fr mDr }kjk iznku dh tkrh gS vkSj bl mikftZr vodk'k ds cnys dh /kujkf'k dk Hkqxrku ,deq'r mDr ykirk e`rd dh iRuh dks fd;k tk;sxkA la[;k&3&145@95 ¼oh0oh0 cD'kh½ fnukWd fnlEcj 18] 1998 lsukuk;d 8oha okfguh ih0,0lh0 cjsyhA"
The Government Order dated 20.3.1987 is as under:-
"la[;k&lk0&3 th0vkbZ088@ml&909&87 izs"kd] Jh lksenRr R;kxh fo'ks"k lfpo mRrj izns'k 'kklu lsok esa] leLr foHkkxk/;{k@izeq[k dk;kZy;k/;{k mRrj izns'k 'kklu y[kuÅ fnukWd 20 ekpZ 1987 fo"k;%& ykirk ljdkjh lsodksa dks e`r ekurs gq;s muds ifjokjksa dks muds lsok uso`fRRkd ykHkksa rFkk vU; vo'ks"kksa dk Hkqxrku egksn;] ;nkdnk 'kklu ds le{k ,sls ekeys vkrs gSa ftuea ljdkjh lsod vius lsok dky esa gh vpkud xqe gks tkrs gSa vkSj ftudk dksbZ irk fBdkuk ¿ ekyqe ugh gksrk Hkkjrh; lk{; vf/kfu;e dh /kkjk&108 ij vk/kkfjr fl)kUr ds vuqlkj tc rd fldh deZpkjh ds xqe gks tkus dh frfFk ls tkrrky dh vof/k O;rhr ugha gksrh rc rd mls e`r ugha le>k tk ldrk vkSj mlds ifjokj dks lsok uSo`fRrd izlqfo/kkvksa dk Hkqxrku ugh fd;k tk ldrkA ,slh fLFkfr esa Li"V gS fd lacaf/kr ljdkjh lsod ds ifjokj dks dfBu vkfFkZd [;kfr dk lkeuk djuk iM+rk gSA ,slh fLFkfr esa jkT;iky egksn; us bl foUnq ij lE;d fopkjksijkUr ;g vkns'k nsus dh d`ik dh gS fd ¼1½ tc dksb deZpkjh ifjokj dks NksM+dj xqe gks tkrk gS rks mlds }kjk fd;s x;s ukferhdj.k ds vk/kkj ij 'kq: esa mlds ifjokj dks mls ns; vo'ks"k osru ns; vodk'k dk udnhdj.k rFkk Hkfo"; fuf/k esa miyC/k /kujkf'k dk Hkqxrku fd;k tk ldrk gS ¼2½ ,d lky dh vof/k O;rhr gksus ij mlds ifjokj dh vU; izlqfo/kk;sa tSls ikfjokfjd isa'ku@lsok ,oa e`R;q vkuqrksf"kd dk Hkqxrku Hkh vkxkeh izLrjksa esa fu/kkZfjr 'krksZ ds iwjk djus ij fopkj fd;k tk ldrk gSA 2%& mijksDr izlqfo/kk;sa dsoy fuEu vkSipkfjdrkvksa ds iw.kZ djus ij gh vuqeU; dh tk ldrh gS%& ¼1½%& lacaf/kr ljdkjh lsod ds ifjokj us lacaf/kr iqfyl Fkkus esa xqe'kqnxh dh fjiskVZ ntZ djk nh gks vkSj iqfyl }kjk bl vk'k; dk izek.k&i= ns fn;k x;k gks fd iqfyl }kjk lHkh iz;kl fd;s tkus ds ckn lacaf/kr deZpkjh dks ugh 2%& lacaf/kr deZpkjh ds ukferh@vkfJrksa }kjk bl vk'k; dk {kfriwfrZ oa'k i= ¼bUMksfefuVh ckaM½ ns fn;k x;k gks fd ;fn xqe'kqnk deZpkjh mifLFkfr gks tk;sxk vkSj nkok djsxk rks deZpkjh ds ns; Hkqxrkuksa esa ls mlds ifjokj dks fn;s x;s Hkqxrkuksa dk lek;kstu dj fy;k tk;sxkA 3%& lacaf/kr foHkkxk/;{k@dk;kZy;k/;{k lacaf/kr ljdkjh lsod ds fo:) fudy jgs 'kkldh; ns;ksa dk vkxeu dj ysxs vkSj ifjokj ds ns; vo'ks"k lsok usSo`fRr ds ykHkksa esa ls fu;ekuqlkj mldh olwyh djsaxsA 4%& ikfjokfjd isa'ku ,oa lsok ,oa e`R;q vkuqrksf"kd dh Lohd`fr ds laca/k esa lgh izfdz;k viukbZ tk;sxh tSlh mDr izdkj ds lkekU; ekeyksa esa viukbZ tkrh gSA vU; vo'ks"kksa ds Hkqxrku ds laca/k esa lkekU; izfdz;k gh viuk;h tk;sxhA fnukWd 20 ekpZ 1987 Hkonh;] g0 ¼lksenRr R;kxh½ fo'ks"k lfpo"
Admittedly Vimlesh Devi has received all other benefits to which she was entitled vide G.O. dated 20.3.1987. So far as her claim for compassionate appointment is concerned, it was not legally maintainable at that time because before the amendment in 2011 in the Rules, missing persons declared dead were not covered under Dying in Harness Rules, 1974. Those persons have been so covered after the amendment of Rules in 2011 which necessarily provides for a declaration by some competent court in accordance with Section 108 of Evidence Act. Admittedly there is no such declaration regarding the civil death of appellant's husband in the present case hence only on the basis of the order dated 18.12.1998 passed by the then Commandant by using incorrect language cannot be assumed that the husband of the petitioner had acquired the status of a dead person after expiry of about two and a half years only from the date of his disappearance.
The amendment 2011 has not been given retrospective effect.
Considering all these facts we are of the firm view that the impugned order dated 7.8.2000 passed by learned Single Judge is apparently a cryptic order. It is bereft of any consideration of facts mentioned in the counter affidavit and also the relevant rules and government orders. Therefore, it is liable to be set aside and the appeal deserves to be allowed.
The appeal is allowed. The impugned order is set aside.
However, taking a sympathetic view towards the respondent and considering that she is an aged widow, the appellant may continue to provide her some work on temporary basis as she was performing earlier, if there is any such temporary vacancy available, so long as she does not attain the age of superannuation.
Dated : 13.01.2015 S.B./Pcl.