# District Judge Hardoi 6215(S/S) 2009 v. Saurabh Kumar

- **Citation:** (2014) 2 ILRA 796
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-07-21
- **Case number:** Special Appeal No. 767 of 2012
- **Bench:** Devi Prasad Singh, Arvind Kumar Tripathi (Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/district-judge-hardoi-6215-s-s-2009-v-saurabh-kumar-42981
- **Pages:** 7

## Headnote

Sri M.S. Rathore
U.P.
Recruitment
of
Dependents
of
Government Servant (Dying in Harness) Rules
1974-Rule-5 readwith evidence Act, Section
107,
108-Compassionate
appointmentclaim on based on presumptions of deathdecree by Civil Court became final-father of
petitioner /respondent class IV employeeon election duty in the year 1996-not
turned up-declaration made by Civil Court
on 31.05.2008 got finally-Single Judge
rightly
directed
for
compassionate
appointment-within two month preferablyappeal dismissed.

Held: Para-35
For the reasons discussed hereinabove,
the presumption drawn by the Hon'ble
Single Judge with regard to death of Om
Prakash, seems to be not incorrect.
Rather, it is based on sound principles of
law.
Accordingly,
the
impugned
judgment and order passed by the
Hon'ble Single Judge does not seem to
suffer from any infirmity or illegality.

Case Law discussed:
(1951) 2 ALL.E.R. 587; (1881) 17 CHD 746;
AIR 1953 SC 244; AIR 1955 SC 661; AIR 1959
SC 352; AIR 1966 SC 719; AIR 1975 SC 164;
AIR 1973 SC 1056; AIR 1978 SC 1099; (1985)
2 SCC 321; (1995) 1 SCC 537; (1997) 1 SCC
650; (1999) 6 SCC 275; (2000) 2 SCC 699; JT
(2003) 9 SC 477; (2004) 6 SCC 59; (2005) 3
SCC 161; (2008) 5 SCC 257; [(1998) 2
UPLBEC 1'1'83]; 2011(4) ALJ 234.

## Text

796 INDIAN LAW REPORTS ALLAHABAD SERIES
authorities have given such appointment to
the writ-petitioner, the same cannot be downgraded to that of a work charge or temporary
employee on the ground that the initial
appointment was incorrectly provided. If the
writ-petitioner was not entitled to the
appointment under the Dying in Harness
Rules because of her husband being a work
charge employee, the option available to the
State was not to place her as a work charge
employee as there is no provision in law for
appointment as a work charge employee
under the Dying in Harness Rules. Any
appointment made under the Dying in
Harness Rules can only be on a permanent
post and not on temporary or work charge
post. That being the position, the option
exercised by the State in down-grading the
appointment of the petitioner from that of a
permanent class IV employee to a work
charge employee and also a direction for
recovery of the excess amount paid to the
writ-petitioner cannot be justified in law.

6. As such, this appeal stands
dismissed. No order as to cost.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.07.2014

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
HON'BLE ARVIND KUMAR TRIPATHI (II), J.

Special Appeal No. 767 of 2012

District Judge Hardoi 6215(S/S) 2009
 ...Appellant
Versus
Saurabh Kumar ...Respondent

Counsel for the Petitioner:
Sri Manish Kumar

Counsel for the Respondents:
Sri M.S. Rathore
U.P.
Recruitment
of
Dependents
of
Government Servant (Dying in Harness) Rules
1974-Rule-5 readwith evidence Act, Section
107,
108-Compassionate
appointmentclaim on based on presumptions of deathdecree by Civil Court became final-father of
petitioner /respondent class IV employeeon election duty in the year 1996-not
turned up-declaration made by Civil Court
on 31.05.2008 got finally-Single Judge
rightly
directed
for
compassionate
appointment-within two month preferablyappeal dismissed.

Held: Para-35
For the reasons discussed hereinabove,
the presumption drawn by the Hon'ble
Single Judge with regard to death of Om
Prakash, seems to be not incorrect.
Rather, it is based on sound principles of
law.
Accordingly,
the
impugned
judgment and order passed by the
Hon'ble Single Judge does not seem to
suffer from any infirmity or illegality.

Case Law discussed:
(1951) 2 ALL.E.R. 587; (1881) 17 CHD 746;
AIR 1953 SC 244; AIR 1955 SC 661; AIR 1959
SC 352; AIR 1966 SC 719; AIR 1975 SC 164;
AIR 1973 SC 1056; AIR 1978 SC 1099; (1985)
2 SCC 321; (1995) 1 SCC 537; (1997) 1 SCC
650; (1999) 6 SCC 275; (2000) 2 SCC 699; JT
(2003) 9 SC 477; (2004) 6 SCC 59; (2005) 3
SCC 161; (2008) 5 SCC 257; [(1998) 2
UPLBEC 1'1'83]; 2011(4) ALJ 234.

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Heard Sri Manish Kumar, learned
counsel for the appellant and Sri Krishna
Kumar Singh, holding brief of Sri M.S.
Rathore Advocate.

2. Late Om Prakash, father of the
respondent, while working as Class-III
employee in Civil Court district Hardoi, was
assigned duty in Election of the year 1996.
It appears that late Om Prakash had gone to
attend Election duty on 3.10.1996 but he did
not turn up. Thus, he is missing since 1996.
2 All] District Judge Hardoi 6215 (S/S) 2009 Vs. Saurabh Kumar
797

3. A Regular Suit No.56 of 2008
was filed by the wife of Om Prakash in
the Court of Civil Judge (Jr. Div.) West,
Hardoi, to declare Om Prakash her
husband, as dead. The suit was decreed by
the learned Civil Judge (Jr. Div.), West
Hardoi on 31.5.2008. The operative
portion of the judgment and decree dated
31.5.2008 is reproduced as under:

"nkok ;kphx.k fo:) izfroknh lO;; fMdzh
fd;k tkrk gSA tfj;s fMdzh ?kks'k.kkRed vkse izdk"k
iq= Lo0 fjnkj flag fuoklh xzke HkViqjok etjk
Qjhnkiqj ijxuk caxj Fkkuk ljqlk rglhy o ftyk
gjnksbZ dks e`r ?kksf'kr fd;k tkrk gSA"

4. From the aforesaid declaration, it
is evident from the record that by decree
and order dated 31.5.2008, Om Prakash,
husband of Savitri Devi, resident of
village Bhatpurwa, Majra Faridapur,
Pargana Bangar, Police Station Sursa,
Tahsil and district Hardoi, was declared
as dead by the Civil Court.

5. In spite of declaration by the Civil
Court no compassionate appointment was
made by the District Judge, Hardoi.
Hence the respondent Saurabh Kumar son
of late Om Prakash, preferred Writ
Petition No.6215 (S/S) of 2009. The writ
petition was allowed by Hon'ble Single
Judge of this Court with the finding that
with
regard
to
appointment
on
compassionate ground, the judgment and
decree passed by the Civil Court, should
have been taken into account. Feeling
aggrieved, the present special appeal has
been preferred.

6. Sri Manish Kumar, learned
counsel for the petitioner while assailing
the impugned order passed by Honble
Single Judge, submits that under Rule 5 of
the
Uttar
Pradesh
Recruitment
of
Dependants of Government Servants
(Dying in Harness) Rules, 1974 (in short,
"the Rules"), it has been provided that
death means actual death and not death
arising out of presumption. Attention has
been invited to Rule 5 of the Rules. For
convenience, Rule 5 of the Rules, is
reproduced as under:

"5. Recruitment of a member of the
family of the deceased. - (1) 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 shall, on making an
application for the purposes, be given a
suitable employment in Government
service on a post except the post which is
within the purview of the Uttar Pradesh
Public Service Commission, in relaxation
of the normal recruitment rules if such
person -

(i)
fulfils
the
educational
qualifications prescribed for the post,

(ii)
is
otherwise
qualified
for
Government service, and

(iii) makes the application for
employment within five years from the
date of the death of the Government
servant :

Provided
that
where
the
State
Government is satisfied that the time-limit
fixed for making the application for
employment causes undue hardship in any
798 INDIAN LAW REPORTS ALLAHABAD SERIES
particular case, it may dispense with or
relax the requirement as it may consider
necessary for dealing with the case in a
just and equitable manner."

7. Submission is that in sub-rule (1)
of Rule 5 of the Rules, the word used by
the Legislature is 'death' hence, death by
presumption could not be taken into
account
for
appointment
on
compassionate ground. The argument
advanced by the learned counsel for the
appellant seems to be misconceived.
Legislature to their wisdom, has used the
word, 'dies' and not the word, 'actual
death', as argued.

8. Section 56 of the Indian Evidence
Act, 1872 provides that no fact of which
the Court will take judicial notice need to
be proved. For convenience, Section 56 of
the Indian Evidence Act is reproduced as
under:

"56. Fact judicially noticeable need
not be proved.--No fact of which the
Court will take judicial notice need to be
proved."

9. In view of the above, keeping in
view the provisions contained in Section
56 of the Indian Evidence Act, it was
incumbent on the authorities to take note
of the judgment and decree whereby, Om
Prakash has been declared dead. No court
or authority have right to take a decision
contrary to the judgment and decree of the
Court which admittedly attained finality
(supra).

10. Apart from the above, Section
107 of the Indian Evidence Act provides
that whether a man is alive or dead, and
he was alive within thirty years, then the
burden of proving dead is on the person
who affirms it. Section 108 of Indian
Evidence Act further provides that where
a person is alive or dead and it is shown
that he has not been heard of for seven
years by those who would naturally have
heard of him of he had been alive, the
burden of proving him dead, is restricted
to the person who affirms it. For
convenience, Section 107 and 108 are
reproduced as under:-

"107. Burden of proving death of
person known to have been alive within
thirty years.--When the question is
whether a man is alive or dead, and it is
shown that he was alive within thirty
years, the burden of proving that he is
dead is on the person who affirms it.

108. Burden of proving that person is
alive who has not been heard of for seven
years.--[Provided 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."

11. In view of the above, burden to
prove that the person is alive, comes on
the State Government but the State
Government has not preferred appeal
against the judgment and decree. In view
of Section 56 of the Indian Evidence Act,
it shall be incumbent on the State
Government to take note of the judgment
and decree of the Civil Court whereby
Om Prakash has been declared to be dead.

12. One of the argument advanced
by the learned counsel for the appellant is
with regard to using the word, 'death', in
the
Rules
(supra).
Argument
of
petitioner's counsel is not sustainable for
the reason that by fiction of law, Om
2 All] District Judge Hardoi 6215 (S/S) 2009 Vs. Saurabh Kumar
799
Prakash shall be deemed to be dead that
too, followed by a decree of the
competent court of law. It means, after
declaration by Civil Court that Om
Prakash is dead, he shall be deemed to be
dead and shall mean to substitute the
provisions contained in the Rules in case
dispute arises with regard to death or
aliveness of Om Prakash.

13. In the case reported in (1951) 2
All.E.R 587: East and Dwellings Co. Ltd.
Vs. Finsbury Borough Council, Lord
Asquith J. stated that the law relating to
legal fiction in the following manner:

"if you are bidden to treat an
imaginary state of affairs as real you must
surely, unless prohibited from doing so,
also imagine as real the consequences and
incidents which if the putative state of
affairs had in fact existed, must inevitably
have flowed from or accompanied it." The
statute says that you must imagine a
certain state of affairs; it does not say that
having done so, you must cause or permit
your imagination to boggle when it comes
to the inevitable corollaries of that state of
affairs.

14. In the case reported in (1881) 17
CHD 746: Exparte Walten, In Re Levy, it
was observed by James L.J. "when a
statute enacts that some thing shall be
deemed to have been done, which infact
and in truth was not done, the court is
entitled and bound to ascertain for what
purpose and between what persons the
statutory fiction is to be resorted to."

15. In AIR 1953 SC 244: State of
Bombay vs. Pandurang Vinayak, Hon'ble
Supreme court has held that, when a
statute enacts that something shall be
deemed to have been done, which in fact
and truth was not done, the court is
entitled and bound to ascertain for what
purposes and between what persons the
statutory fiction is to be resorted to and
full effect must be given to the statutory
fiction and it should be carried to its
logical conclusion. (Para5).

16. In AIR 1955 SC 661 : Bengal
Immunity Co. Ltd. vs. State of Bihar, the
Apex court has held that, legal fictions are
created only for some definite purpose
and it is to be limited to the purpose for
which it was created and should not be
extended beyond that legitimate field.

17. In AIR 1959 SC 352 : CIT vs. S.
Teja Singh, Hon'ble Supreme Court has
held that, it is a rule of interpretation well
settled that in construing the scope of legal
fiction it would be proper and even
necessary to assume all those facts on which
alone the fiction can operate. (Para 6).

18. In AIR 1966 SC 719: CIT vs.
Shakuntala, Hon'ble Supreme Court has
held that the fiction created by the
legislature must be restricted by the plain
terms of statue. The principle that a legal
fiction must be carried to its logical
conclusion does not require the court to
travel beyond the terms of the section or
give the expression a meaning which it
does not obviously bear.(para 6).

19. In AIR 1975 SC 164: Boucher
Pierre Andre vs. Supdt. Central Jail,
Hon'ble Supreme Court has held that,
where a legal fiction is created, full effect
must be given to it and it should be
carried to its logical conclusion.

20. In AIR 1973 SC 1056: CIT vs.
Maharaj Kumar Kamal Singh, Hon'be
apex court held that, it is true that a legal
800 INDIAN LAW REPORTS ALLAHABAD SERIES
fiction should not be extended beyond the
purpose for which it is created; but it does
not mean that the court should not give
full effect to that fiction.(Para 7).

21. In the case reported in AIR 1978
SC 1099 : Cambay Electric Supply
Industrial Co. vs. CIT, the apex court held
that legal fictions are created for a definite
purpose and they should be limited to the
purpose for which they were created and
should not be extended beyond the
legitimate field.(Para 8).

22. In the case reported in (1985)2
SCC 321: State of Maharashtra vs. Narayan
Rao, Hon'ble Supreme Court has held that,
a legal fiction should ordinarily be carried
out to its logical conclusion and to carry out
the purposes for which it is created but it
can not be carried beyond that.

23. In the case reported in (1995) 1
SCC 537: Harish Tandon vs. ADM,
Hon'ble Supreme Court has held that,
when a statute creates a legal fiction
saying that something shall be deemed to
have been done which in fact and truth
has not been done, the court has to
examine and ascertain as to for what
purpose and between what persons such a
statutory fiction is to be resorted to.
Thereafter full effect has to be given to
such statutory fiction and it has to be
carried to its logical conclusion.(Para 13).

24. In the case reported in (1997) 1
SCC 650: Gajraj Singh vs. STAT, Hon'ble
Supreme court has held that a legal fiction
is one which is not an actual reality and
which the law recognizes and the court
accepts as a reality. Therefore in case of
legal fiction the court believes something
to exist which in reality does not exist. It
is nothing but a presumption of the
existence of the state of affairs which in
reality is non-existent. The effect of such
a legal fiction is that a position which
otherwise would not obtain is deemed to
obtain under the circumstances. (Para 22).

25. In the case reported in (1999) 6
SCC 275: Lokmat Newspapers (P)Ltd. Vs.
Shankarprasad, It was observed by the
Hon'ble Supreme court that, while giving
effect to the legal fiction for the purpose for
which it is created by legislature, it has to be
given fully play for fructifying the said
legislative intention.(Para 27&29).

26. In the case reported in (2000)2
SCC 699: State of Maharashtra vs. Laljit
Rajshi Shah, Hon'ble Supreme court has
held that it is the well settled principle of
construction
that
in
interpreting
a
provision creating legal fiction, the court
is to ascertain for what purpose the fiction
is to be created, and after ascertaining it,
the court is to assume all those facts and
circumstances which are incidental or
inevitable corollaries to giving effect to
the fiction. But in so construing the fiction
it is not to be extended beyond the
purpose for which it is created or beyond
the language of the section by which it is
created. A legal fiction in terms enacted
for the purpose of one act is normally
restricted to that act and can not be
extended to cover another act. (Para 6).

27. In the case reported in JT(2003)
9 SC 477 : Prafulla Kumar Das and others
vs. State of Orissa, Hon'ble Supreme court
has held that, the purpose and object of
creating legal fiction in the statute is wellknown, when a legal fiction is created, it
must be given full effect.(para39).

28. In the case reported in (2004) 6
SCC 59: State of W.B. vs. Sadan K.
2 All] District Judge Hardoi 6215 (S/S) 2009 Vs. Saurabh Kumar
801
Bormal , Hon'ble Supreme court has held
that so far as interpretation of legal fiction is
concerned, it is trite that the court must
ascertain the purpose for which the fiction is
created and having done so must assume all
those facts and consequences which are
incidental or inevitable corollaries to giving
effect to the fiction.(Para 25).

29. In the case reported in (2005) 3
SCC 161: State of A.P vs. Pensioner's
Association, Hon'ble Supreme court has
held that if the provision it self provides a
limitation to operation of legal fiction
created by it, consequences flowing from
the legal fiction have to be understood in the
light of limitations imposed.(Para 28&30).

30 In the case reported in (2008) 5
SCC 257: UCO Bank vs. Rajinder Lal
Kapoor, it has been held by the Apex
court that, when a legal fiction is created ,
although it is required to be taken to
logical conclusion, but the same would
not mean that the effect thereof would be
extended so as to transgress the scope and
purport for which it is created.(Para 23).

31. In view of the above and
keeping in view the decree of competent
court (supra), Om Prakash shall be
deemed to be dead and his dependants
shall be entitled for appointment on
compassionate ground. The provision
contained in the Rules, shall be deemed to
be encompass such cases where a decretal
order has been passed by the Civil Court
pronouncing death of a person. In such a
situation, it shall be incumbent on the
competent authority to consider and
appoint the dependant of the deceased
employee on compassionate ground.

32. Attention has been invited by the
learned counsel for the appellant to the
judgment in the case reported in [(1998) 2
UPLBEC 1`1`83]: Ravi Shankar Tewari.
Vs. Police Maha-Nideshak, U.P. and
others. The case of Ravi Shankar Tewari
(supra) deals with different facts and
circumstances of the case where the
employee had not submitted decree of
Civil Court. Further, the provisions
contained in Section 107 and 108 of
Indian Evidence Act, have not been
correctly interpreted by the Hon'ble
Single Judge while deciding the case of
Om Prakash. In view of the above, we are
of the view that the case of Ravi Shankar
Tewari (supra) seems to be dealt with
different facts and circumstances of the
case and is not applicable to the present
controversy.

33. With profound respect, we are in
respectful
disagreement
with
the
judgment and proposition of law dealt
with by the Hon'ble Single Judge in the
case of Ravi Shankar Tewari (supra). The
doubt expressed by the Hon'ble Single
Judge in the case of Ravi Shankar Tewari
(supra) seems to be not correct. The doubt
has been raised in para 12 of the judgment
that in case a person comes back being
alive after seven years, the situation will
be anomalous. Respectfully, we would
like to express our opinion that it is not
for the Court to raise a presumption on
unfounded ground. Provisions contained
in Section 107 and 108 read with Section
56 of Indian Evidence Act dealt with the
public interest and for welfare of people.
Any presumption drawn, which go against
the spirit of Section 107 and 108 of Indian
Evidence Act, shall not be correct.
Ordinarily, in case it is found that a
person is missing for more than seven
years, then the statutory provisions under
Section 107 and 108 should be given
effect. The right flowing from statutory
802 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions may not be taken away on a
presumption based on unfounded ground.
What will happen in due course of time in
case statutory provision is implemented
affects adversely should be looked into by
the Legislature and not by the Courts.

34. Learned counsel for the
respondent has relied upon a Division
Bench judgment of this Court in the case
reported in 2011 (4) ALJ 234: Ramakant
Singh v. State of U.P. & Ors., wherein it
has been held that even if no suit is filed,
presumption may be drawn with regard to
civil death. For convenience, relevant
portion of para 11 and 12 of the aforesaid
judgment are reproduced as under:

"11. We find that the learned single
Judge did not consider that even if the suit
was not filed, the presumption could be
drawn, if the conditions imperative for
raising the presumption were satisfied.
Once a presumption of civil death is
raised on the satisfaction of the conditions
given in Section 108 of the Indian
Evidence Act, the burden of proof that he
is alive, is then shifted to the person who
affirms that the person reported missing
was seen and is alive.

12. In Ajay Kumar Tewari v. Dy.
Inspector
General
of
Police
(Establishment) Police Headquarter, U.P.,
Allahabad, and others [2005 ESC (Alld)
671) [delivered by one of us (Hon'ble
Sunil Ambwani, J)], it has been held that
the provision of Section 108 of Evidence
Act would be applied for claiming
compassionate appointment."

35. For the reasons discussed
hereinabove, the presumption drawn by
the Hon'ble Single Judge with regard to
death of Om Prakash, seems to be not
incorrect. Rather, it is based on sound
principles of law. Accordingly, the
impugned judgment and order passed by
the Hon'ble Single Judge does not seem to
suffer from any infirmity or illegality.

36. In view of the above, the
appellant shall appoint the respondent on
compassionate ground expeditiously say,
within a period of two months from the
date of receipt of a certified copy of the
present judgment with all consequential
benefits.

37. The impugned judgment and
order passed by the learned Single Judge
is affirmed accordingly and subject to
above, the appeal is decided finally.

No orders as to costs.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.07.2014

BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE AKHTAR HUSAIN KHAN, J.

Criminal Appeal No. 1047 of 1989

Rashid & Ors. ...Petitioners
Versus
State of U.P. ...Respondent

Counsel for the Petitioners:
Sr Preetpal Singh Rathore, Sri R.C. Kandpal,
Sri M. Islam, Sri G.S. Hazela

Counsel for the Respondent:
A.G.A., Smt. Raj Laxmi Sinha

Criminal
Appeal-Conviction
of
life
imprisonment
under
Section
302,
323/34 IPC and one month rigorous
imprisonment under section 323/34 IPCon ground of minor discrepancies in
statement of prosecution witness-place