# Km. Gyanti v. State of U.P. & others

- **Citation:** (2012) 1 ILRA 71
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-18
- **Case number:** Civil Misc. Writ Petition No. 6551 of 2008
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-gyanti-v-state-of-u-p-others-42257
- **Pages:** 6

## Headnote

Servants) Dying in Harness Rule, 1974Rule-2
(b)-readwith
Section-108
of
Evidence
Act-Compassionate
Appointment-Petitioner's father working
as
Police
Constable-abducted
during
duty hours-F.I.R. Lodged by S.I. On
09.03.1998-claim
for
appointment
although processed but subsequently in
view of G.O. 27.08.2007-refused-heldcase of civil death more bonafide than
natural death-as the deceased family
suffers mental , physical agony apart
from
financial
crisis-entitled
for
appointment.

Held: Para 17

In view of foregoing discussions, I am of
the view that if a dependant of deceased
on
account
of
civil
death
claims
appointment under the provisions of
1974, he/she is entitled to be considered
under the Rules and no distinction can
be drawn in between the civil death or
death otherwise.
Case law discussed:
(1984) 2 SCC 50; 2002 (2) ESC 37; 2005 (1)
ESC 807; 2005 (3) AWC 2724; 2009 (4) ESC
2511
72 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

## Text

1 All] Km. Gyanti V. State of U.P. & others
71
approval under Regulation 26, the age of
superannuation continued to be 58 years,
the petitioners are liable to retire on
attaining the age of 58 years. Moreover,
even
under
Regulation
4,
before
amending the Regulation, a procedure
has been prescribed which has to be
followed by UPSAICL and it is nobody's
case that the said procedure has been
followed having the effect of amending
Regulation 26 in any manner. In view
thereof,
the
petitioners,
who
are
employees of UPSAICL are also not
entitled to continue beyond 58 years
merely on the basis of a resolution passed
by the Board of Directors for increasing
the age of retirement from 58 to 60 years.

However, it is made clear that in
case, any employee has continued beyond
58 years under interim order passed by
this Court and has been paid salary, it
would not be equitable to recover the
same from such employee and, therefore,
respondent shall not make any recovery
from any of the petitioners, but it is also
made clear simultaneously that for all
other purposes, the petitioners shall be
deemed to have been retired on attaining
the age of 58 years and their continuance,
if any, beyond 58 years pursuant to the
interim order of this Court would not
confer any benefit upon them."

16. Since the impugned order of
retirement has been passed strictly in
accordance with statutory Regulations
existing and operating on the date, the
same cannot be faulted, legally or
otherwise, and it warrants no interference.

17. The writ petition lacks merit.
Dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH,J. )

Civil Misc. Writ Petition No. 6551 of 2008

Km. Gyanti

 ...Petitioner
Versus
State of U.P. & others
 ...Respondents

Counsel for the Petitioner:
Sri Ajay Kumar Srivastava

Counsel for the Respondents:
C.S.C.

U.P. Recruitment of Dependants of Govt.
Servants) Dying in Harness Rule, 1974Rule-2
(b)-readwith
Section-108
of
Evidence
Act-Compassionate
Appointment-Petitioner's father working
as
Police
Constable-abducted
during
duty hours-F.I.R. Lodged by S.I. On
09.03.1998-claim
for
appointment
although processed but subsequently in
view of G.O. 27.08.2007-refused-heldcase of civil death more bonafide than
natural death-as the deceased family
suffers mental , physical agony apart
from
financial
crisis-entitled
for
appointment.

Held: Para 17

In view of foregoing discussions, I am of
the view that if a dependant of deceased
on
account
of
civil
death
claims
appointment under the provisions of
1974, he/she is entitled to be considered
under the Rules and no distinction can
be drawn in between the civil death or
death otherwise.
Case law discussed:
(1984) 2 SCC 50; 2002 (2) ESC 37; 2005 (1)
ESC 807; 2005 (3) AWC 2724; 2009 (4) ESC
2511
72 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
(Delivered by Hon'ble Ran Vijai Singh,J. )

1. The petitioner, claiming herself to
be unmarried daughter of late Ram
Jhalak, who was appointed as Constable
in U.P. Civil Police, approached this
Court
under
Article
226
of
the
Constitution of India for redressal of her
grievance
with
regard
to
the
compassionate appointment. It is stated in
the writ petition that the petitioner's father
was constable in Civil Police and he was
abducted while he was in the service.
Consequently an F.I.R. was lodged by one
Sub-Inspector namely Sri Chandra Dev
Singh, which was registered as Case
Crime No. 37/1998, under Section 364
I.P.C on 9.3.1998. In the aforesaid case, a
final report was submitted to the effect
that his whereabouts was not known.

2. It appears taking shelter of
Section 108 of Indian Evidence Act, the
petitioner
filed
an
application
for
compassionate appointment in the year
2004 to be more specific 31.12.2004
claiming civil death of her father. At one
point of time, the department has initiated
proceedings for offering appointment on
compassionate ground but later on taking
note of the Government Order dated 9th
December, 1998 and Circular of the
Police Headquarter dated 27th August,
2007, the appointment was refused.

3. A counter affidavit has been filed
by the State respondents in which the
factum of lodging an F.I.R. under Section
364 I.P.C. on 9.3.1998, the submission of
final report, the acceptance of the same by
the Court and the petitioner's application
seeking appointment on compassionate
appointment in view of the provisions
contained under Section 108 has not been
disputed. What has been stated in the
counter affidavit is that in view of the
Government Order dated 9th December,
1998 and the Circular of the Police
Headquarter dated 27th August, 2007, the
dependent of the deceased on account of
presumption of civil death are not entitled
to get benefit of U.P. Recruitment of
Dependents of Government Servants
Dying in Harness Rules, 1974 (herein
after referred to as Rules)

4. A rejoinder affidavit has also been
filed stating therein that the petitioner
falls in the ambit of the Rules of 1974 and
the Government Order/Circular issued by
the State Government or the Police
Headquarter are ultravires to the Rules of
1974.

5. I have heard learned counsel for
the petitioner and learned Standing
Counsel.

6. For appreciating the controversy,
the various provisions contained in the
Rules are required to be looked into. The
rule 2 (b) of the aforesaid Rules provides
"deceased Government servant" means a
Government servant who dies while in
service. " Sub-rule (c) of Rule 2 provides
the definition of family which shall
include (i) wife or husband (ii) sons, and
(iii) unmarried and widowed daughters.
Rule 3 talks about the application of the
rules according to which these rules shall
apply to recruitment of dependants of the
deceased Government servants to public
services and posts in connection with the
affairs of State of Uttar Pradesh, except
services and posts which are within the
purview of the Uttar Pradesh Public
Service Commission. Rule 4 talks about
the overriding effect of the rules
notwithstanding anything to the contrary
contained in any rules, regulations or
1 All] Km. Gyanti V. State of U.P. & others
73
orders in force at the commencement of
the rules. Rule 5 of the aforesaid Rule
provides recruitment of a member of the
family
of
the
deceased
which
is
reproduced below :-

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 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 qualifier 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 times
limit fixed for making the application for
employment causes undue hardship in any
particular case, it may dispense such or
relax the requirement as it may consider
necessary for dealing with the case in a
just and equitable manner.

(2) As far as possible, such an
employment should be given in the same
department
in
which
the
deceased
Government servant was employed prior
to his death.

7. From the bare reading of the
aforesaid Rule, it transpires that if a
government servant dies in harness, one
of his/her dependent of his family as
given in Sub-Rule 2 (c) shall be entitled to
be considered for employment subject to
condition given in Rule 5.

8. Here in this case, the appointment
has not been offered to the petitioner for
the reason that in view of the Government
order dated 9th December, 1998 and the
Circular dated 27th August, 2007 the
dependents of those government servants,
whose death is presumed to be civil death,
under Section 108 of the Evidence Act
would not fall in the ambit of Rules of
1974.

For appreciation, Section 108 of the
Evidence Act, 1872 is reproduced below
:-

S.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 hard of him if he
had been alive, the burden of proving that
he is alive is shifted to the person who
affirms it.

9. From going through the aforesaid
Rules, now it is clear in view of the
lodging of an F.I.R. and filing of the final
report,
no
information
about
his
whereabout for more than seven years and
74 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
its acceptance by the Court, further the
father of the petitioner shall be treated to
be dead which in legal terminology would
be mentioned as civil death.

The word 'Death' in The New
Lexicon Webster's Dictionary of the
English Language has been defined as
under :-

Death means 'the end of life' and
'destruction'.

The word "Death" has been defined
in The law Lexicon the Encyclopaedic
Law Dictionary as below :

"Death" has been mentioned as "the
end or termination of life".

The word "Death" as defined in The
Concise Oxford English Dictionary,
means " the action or fact of dying or
being killed," "the state of being
dead",and "the end of something" : the
death of hopes".

10. From the bare reading of the
meaning of word 'death' it would transpire
that it means the end of life, termination
of life meaning thereby the consequence
of death is death of hopes of anything
from that bodily entity.

11. In this rule, no exception has
been carved out with respect to natural
death, death otherwise or civil death. The
word used in the aforesaid rules do not
restrict that only on a particular type of
death,
a
person
shall
be
offered
appointment. The death may be due to
any reason, may be by illness, by an
accident, in a natural calamity or under
general law (the Evidence Act). The
Government Order and the Circular have
tried to draw a line of distinction in
between the civil death and the death
falling under other categories. Now the
question would be as to whether this line
of distinction is a legal line drawn on the
basis of some statutory basis or it is
merely an outcome of abrupt imagination
of the State authorities particularly in the
circumstances when the Government
itself has issued a Government Order No.
Sa-3-G-I- 88/ten-909-97 extending the
benefit for payment of post retiral dues
taking note of Section 108 of the
Evidence Act.

12.

For
appreciating
this
controversy, the language used in the
Rule 4 of the Rules would also be
required to be looked into, which is
reproduced below :-

Overriding effect of these rules :-
These rules and any orders issued
thereunder
shall,
have
effect
notwithstanding anything to the contrary
contained in any rules, regulations or
orders in force at the commencement of
these rules

13. From the perusal of aforesaid
Rule, it would transpire that this rule will
have overriding effect notwithstanding
anything to the contrary contained in any
rules, regulations or orders in force.

14. It is not in dispute that this rule
has been framed under Article 309 of the
Constitution of India, therefore any
Government Order which is in consistent
with the provisions of these rules will be
of no avail.

15. From the perusal of the
Government Order which has been
brought on record of the counter affidavit
1 All] Km. Gyanti V. State of U.P. & others
75
it
do
not transpire that
the
said
Government Order has been issued while
invoking power either under Article 162
of the Constitution of India or under any
other statutory provision, therefore it
cannot be said to be a statutory
Government Order and even if it be so,
the rules framed under Article 309 will
have
overriding
effect
over
the
Government Order dated 9th December,
1998 and the Circular of the Police
Headquarter dated 27th August, 2007. It
is well settled that if there is any conflict
in between the statutory rules and the
government order it is the rule which shall
prevail over the Government order.

16. The view taken by me find
support from the judgment of the Apex
Court in Babaji Kondaji Garad Vs. Nasik
Merchants Coop. Bank Ltd. (1984) 2
SCC 50.

17. The matter may be examined
from another angle also the purpose of
framing of the rules is to save out the
family of the deceased employee from the
financial crunch which has fallen upon the
family after the death of an employee.
The hardship which has fallen upon the
family is to be mitigated at the earliest.
The end of life or termination of life
either because of the natural death or
accidental death or death otherwise would
result into the recurring financial loss to
the family of the employee. It cannot be
said that the death within the meaning of
Section 108 in any way differentiable than
the death otherwise where, whereabout of
an employee for more than seven years is
not known. In my considered opinion in
the case of civil death the consequences
would be more serious as here the family
shall make its all endeavour to search out
the person who has been disassociated
from the family either because of his
abduction or otherwise and naturally that
would involve the finance and if after the
continuance efforts of seven years the
persons availability is not known, the
family would not only suffer financial
loss but otherwise also there would be
mental distress and agony. Therefore also
the distinction drawn by the State
government is contrary to the object of
the rules.

18. In view of foregoing discussions,
I am of the view that if a dependant of
deceased on account of civil death claims
appointment under the provisions of 1974,
he/she is entitled to be considered under
the Rules and no distinction can be drawn
in between the civil death or death
otherwise.

19. This Court has also taken the
same view in the case of Sima Devi Vs.
Senior Superintendent of Police, Jhansi
and others, 2002 (2) ESC 37, Ajay
Kumar Shukla Vs. State of U.P. and
others, 2005 (1) ESC 807, Sanjay Kumar
Singh Vs. State of U.P. and others, 2005
(3) AWC 2724 and Amit Sharma Vs.
State of U.P. and others, 2009 (4) ESC
2511.

20. In the result, the writ petition
succeeds and is allowed. The Government
Order dated 9th December, 1998 and the
Circular of the Police Headquarter dated
27th August, 2007 are hereby quashed.
The D.I.G. Karmic Police Headquarter,
Allahabad
is
directed
to
take
an
appropriate decision and consider the
petitioner's case for appointment on
compassionate ground within a period of
two months from the date of receipt of
certified copy of the order of this Court.
---------
76 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2012

BEFORE
THE HON'BLE ARUN TANDON,J.

Civil Misc. Writ Petition No. 8301 of 1987

Smt.Akila & others

...Petitioner
Versus
Nisar Ahmad & others ...Respondents

Counsel for the Petitioner:
Sri Virendra Singh
Sri B. Dayal
Sri Vishnu Sahai

Counsel for the Respondents:
Sri Harish Chandra
Sri A.K.Jaiswal
S.C.

Small Cause Courts Act, Section 25Revision-dismissed
without
considering-question
whether
possession by agent or servant is
possession of owner or possession as
tenant -Trail Court without evidence
wrongly
decided-held-committed
patent illegality-revision to return on
its original number-direction to decide
this issue within time bound periodgiven.

Held: Para 12

In view of the law laid down by the
Supreme Court in the case of Mahabir
Prasad Jain (supra), the order passed
by the revisional authority cannot be
legally sustained. The revisional court
is
duty
bound
to examine
as
to
whether in the facts of the case the
plaintiff has been able to establish that
he was the tenant of the premises in
question or not.
Case law discussed:
1999 (37) ALR 742

(Delivered by Hon'ble Arun Tandon,J. )

1. Small Causes Suit No. 14 of
1982
was
filed
by
the
plaintiffrespondent under Section 6 of the
Specific Relief Act for his possession
being restored over the property in
question. The suit was contested by the
present petitioner.

2. It was admitted to the parties that
the disputed property was owned by one
Sri Abdul Rashid, the father of the
present petitioner and further that Abdul
Rashid had since shifted to Pakistan.

3. According to the petitioner she
was tenant of the premises and illegally
dispossessed, therefore the suit. The
defendant in turn claimed title over the
property on the basis of the gift executed
by her father.

4. The Judge Small Causes framed
7 issues for determination including
issue no. 6; as to whether the plaintiff
was the tenant of the premises or not.
After evidence was led by the parties, the
trial court answered the issue, with
regard the plaintiff being tenant of the
premises as he had established his
possession
and
his
being
illegally
dispossessed, in favour of the plaintiff.
The trial court further held that the
defendant has failed to establish the gift
deed. Accordingly, the suit was decreed
vide order dated 22.08.1983.

5. The plaintiff filed the revision
under Section 25 of the Small Causes
Court's Act, 1987. The revision has also
been
dismissed
under
order
dated
08.04.1987. The findings recorded by the
court below have been found to be based
on appreciation of evidence, which need