# Rajendra Prasad Singh v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 811
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-21
- **Case number:** Writ-A No. 9812 of 2007
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-prasad-singh-v-state-of-u-p-ors-46128
- **Pages:** 8

## Headnote

A. Civil Law - U. P. Recruitment of
Dependents
of
Government
Servants
Dying-in-Harness Rules, 1974 - Indian
Evidence Act, 1872 - Section 108 -
Service law - Compassionate Appointment
- Presumption of death of employee -
Employee was missing since more than
seven years - Held, If a person is missing
for more than 7 years, then the dependent
of
such
person
should
be
given
appointment under the 1974 Rules - The
financial condition of petitioner is such in
which
he
is
fully
entitled
for
compassionate appointment so as to
enable him to meet out the family
expenses, otherwise the family of the
petitioner, which is on the verge of
starvation will be ruined. (Para 16 and 17)
812 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Interpretation of Statute - Principle of
purposeful interpretation - Applicability -
The purpose of Dying-in-Harness Rules is
to provide help to the family of the
deceased of a Government employee by
making appointment on compassionate
ground - After the death of Governmnt
employee in harness or in case the
Government employee is not traceable on
account
of
certain
mishappenings
-
Appointment on compassionate ground of
a dependent may save the family from
dying
on
account
of
starvation
and
financial hardships. (Para 23)
Writ Petition partly allowed. (E-1)
Cases relied on :-

## Text

1 All. Rajendra Prasad Singh Vs. State of U.P. & Ors.
811
by the Single Judge and the Division Bench
of the High Court and dismiss Writ Petition
No.20650(W) of 2013 and other connected
matters. We also hold Sections 8, 10, 11
and 12 of the Commission Act to be valid
and constitutional."

64. In the present case also, we find
that statutory provisions made by the
respondent-authorities
are
even
less
regulatory than the same were in the case
of West Bengal. Here only an element of
open test in the form of written test has bee
introduced, which will determine merit of
the candidates. Further scope of subjective
element of selection, when the selection
was made only on the basis of interview,
has been curtailed to a larger extent. This is
for bringing in transparency, impartiality,
fairness and non arbitrariness in selection
and it is in the interest of public at large,
students' community and national interest.
In
selection
and
appointment
no
Government Authority has any direct role
except that it has to forward papers from
one to another. Even for recruitment i.e.
holding of Screening/Written Test, no
Government Machinery has been given any
power of interference but a private
recruitment agency has to be employed. Its
role is limited as it is only a written
examination conducting body and has to
prepare merit list on the basis of marks
secured in written test and same to forward
through educational authorities to the
Management for holding selection in
accordance with the statute. It is not in
dispute that all the educational institution
before
this
Court
are
100
percent
Government aided minority educational
institutions and therefore, in view of
aforesaid law laid down by Supreme Court,
it cannot be said that statutory provision in
question, in any manner, affects their right
to administer minority institution and it
cannot be said to be violative of Article 30
of the Constitution. We, therefore, find no
merit in these writ petitions.

65. Dismissed accordingly.

66. However, there shall be no order
as to costs.
----------
(2021)01ILR A811
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2020

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Writ-A No. 9812 of 2007

Rajendra Prasad Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri O.N. Tripathi, Sri A.B. Singhal, Sri D.N.
Tripathi

Counsel for the Respondents:
C.S.C., Sri Chandra Shekhar Singh, Sri
Vivek Saran

A. Civil Law - U. P. Recruitment of
Dependents
of
Government
Servants
Dying-in-Harness Rules, 1974 - Indian
Evidence Act, 1872 - Section 108 -
Service law - Compassionate Appointment
- Presumption of death of employee -
Employee was missing since more than
seven years - Held, If a person is missing
for more than 7 years, then the dependent
of
such
person
should
be
given
appointment under the 1974 Rules - The
financial condition of petitioner is such in
which
he
is
fully
entitled
for
compassionate appointment so as to
enable him to meet out the family
expenses, otherwise the family of the
petitioner, which is on the verge of
starvation will be ruined. (Para 16 and 17)
812 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Interpretation of Statute - Principle of
purposeful interpretation - Applicability -
The purpose of Dying-in-Harness Rules is
to provide help to the family of the
deceased of a Government employee by
making appointment on compassionate
ground - After the death of Governmnt
employee in harness or in case the
Government employee is not traceable on
account
of
certain
mishappenings
-
Appointment on compassionate ground of
a dependent may save the family from
dying
on
account
of
starvation
and
financial hardships. (Para 23)
Writ Petition partly allowed. (E-1)
Cases relied on :-
1. Amit Sharma Vs St. of U.P. & ors. , 2009
(4) ESC 2511 (All)
2. Ajay Kumar Shukla Vs St. of U.P. & ors.,
2005(1) ESC 807 (All)
3. Sanjay Kumar Singh Vs St. of U.P. & ors. ,
2005(3) AWC 2724 (LB)
4. Sima Devi Vs Senior Superintendnet of
Police, Jhansi & ors. , 2002 (2) ESC 37 (All)
5. Writ A No. 30612 of 2008, Smt. Rama Devi
& anr. Vs St. of U.P. & ors.

(Delivered by Hon'ble Shamim Ahmed, J.)

1. This writ petition has been filed
by the petitioner with the following
prayers:

"a). Issue a writ, order or direction
in the nature of certiorari quashing the
impugned order dated 16.11.2006 passed
by respondent no. 2 (Annexure No. 15 to
this writ petition).

b). Issue a writ, order or direction in
the nature of mandamus, commanding the
respondents to consider the claim of
petitioner for compassionate appointment
afresh and appoint the petitioner on a
suitable class IV post, under the Dying in
Harness Rules within some stipulated
period, as this Hon'ble Court may deem
fit and proper,

c). Issue any other writ, order or
direction as this Hon'ble Court may deem
fit and proper in the circumstances of the
present case.

d). Award cost to the present writ
petition to the petitioner."

2. Learned counsel for the petitioner
argued that the father of the petitioner who
was a permanent class IV employee in the
department of respondents, left his home on
01.05.1996 at about 6.00 P.M. for night
duty and did not return to his home till
08.05.1996. He was searched in the office
and at the homes of nears and dears but
petitioner himself nor any family members
could known the whereabout of father of
petitioner. The petitioner then lodged a first
information report at the concerned police
station and also informed the police control
room, Allahabad.

3. Learned counsel for the petitioner
further argued that the aforesaid news
(missing person) had also been given by the
petitioner to Print Media for publication,
which was published on 09.05.1996. The
mother of the petitioner moved an application
on 5.8.1996 before the respondent no.3 for
granting his salary till her husband is
searched by the police because she is unable
to maintain her family but nothing has been
paid to the mother of the petitioner. The
petitioner repeatedly approached to the
concerned police station to know about the
progress in search of father of the petitioner.
However, the police reported that they could
not trace out the missing person. In this
regard, the police has submitted its report
dated 9.02.2004 and 26.03.2004.

4. Learned counsel for the petitioner
further argued that in the instant case, the
1 All. Rajendra Prasad Singh Vs. State of U.P. & Ors.
813
employee was missing, leaving behind his
wife, Smt. Munni Devi and son i.e.
petitioner, which was duly certified by the
Tehsildar Sadar, Allahabad who has issued
the dependent certificate dated 26.09.2003.

5. Learned counsel further argued that
after exhaustive effort of search of his
father by the police as well as by the
petitioner himself, when the whereabout of
missing father of petitioner could not be
known, the petitioner sought appointment
on compassionate grounds from respondnt
nos. 2 and 3 by way of application dated
18.11.2003. Upon the application of the
petitioner,
respondent
no.3
sought
directions from respondent no.2 for further
proceedings in the matter of the petitioner.

6. Learned counsel has further argued
that the petitioner made a request to
respondent no.2 that since on 01.04.2005
concerned police station reported in writing
that the search of missing father of the
petitioner has now been stopped and all the
efforts have gone in vain, hence his case for
appointment on compassionate ground may
kindly be considered. The petitioner again
represented to respondent no.3, repeating
his
similar
prayer
on
01.04.2004.
Consequently, respondent no.3 forwarded
the
application
of
the
petitioner
to
respondent no.2 on 08.04.2004.

7. Learned counsel has further argued
that the petitioner as well as his mother
jointly submitted an Indemnity Bond before
the respondent no.2. It is made clear that in
order to get appointment under such
circumstances, submission of indemnity
bond is necessary in pursuance to the
Government Orders. So far as academic
qualification of the petitioner is concerned,
he passed High School Examination in
1987, according to which the date of birth
of the petitioner is 20.07.1970. Thus, the
petitioner is duly qualified and eligible to
be appointed on class IV post.

8. Learned counsel further argued that
inspite of repeated representation made by
the
petitioner
before
the
respondent
authorities, when a most genuine claim of
the petitioner was not considered at all by
the authorities concerned, then having left
with no option the petitioner sought shelter
of this Hon'ble Court by filing a writ
petition, being Civil Misc. Writ Petition
No.45902 of 2006. The Hon'ble Court, after
hearing the parties, was pleased to dispose
of the writ petition vide its judgment and
order dated 24.08.2006 and observed that
dependents of a person, dying a civil death
in
harness
are
also
entitled
for
compassionate
appointment
and
the
respondents ought to take action on the
application of the petitioner. The Hon'ble
Court was further pleased to issue direction
to the respondent no.2 to consider the claim
of the petitioner expeditiously, preferably
within a period of three months from the
date of submission of a certified copy of
order along with an attested copy of the
writ petition. The certified copy of the
order dated 24.08.2006, passed by this
Hon'ble Court was duly served to the
respondent No.2 by the petitioner along
with an application dated 31.08.2006.

9.

Learned
counsel
for
the
petitioner
further
argued
that
the
respondent
no.2
has
passed
the
impugned
order
dated
16.11.2006,
rejecting the claim of the petitioner on
wholly non-existent ground and even
without
considering
the
specific
observations of this Hon'ble Court,
contained in its order dated 24.08.2006.

10. Learned counsel next submitted
that the entire family of the petitioner is on
814 INDIAN LAW REPORTS ALLAHABAD SERIES
the verge of starvation inasmuch as no
source of livelihood is available to the
petitioner's family. The petitioner is simply
working in a private clothes shop and is
getting a meagre amount of Rs.50/- per day.
The mother of petitioner is also compelled
by the circumstances to attend certain
houses for cleaning the pots. The petitioner
along with family including his mother is
living
in
a
single
room,
rented
accommodation. Thus, in these hard days it
has become very difficult for the petitioner
to pull on burden of expenses of the family.
The respondent No.3 has already given
compassionate appointment to more than
10 candidates during the period from the
year 1992 to 2006 but the petitioner is
being discriminated. The petitioner has
been able to find out names of the
following persons who have been given
appointments by respondent No.3 under
Dying in Harness Rules:-

(1) Lal Chand (2) Suman (3) Shakira
Begum ( 4) Beenu Singh (5) Manish
Kumar (6) Mohd. Waseem (7) Santosh
Kumar ( 8) Shiv Shankar (9) Anil Kumar
and ( 10) Sujata Verma.

11. Counter Affidavit was filed by
respondent Nos.2 and 3 and an averment
was made in paragraph no.4 of the counter
affidavit that the father of the petitioner
was posted as peon/chaprasi at the office of
respondent no.3 and he absented himself
since 15.04.1996 without any sanctioned
leaved or information. The order impugned
has been passed in compliance of the order
dated 24.08.2006 passed in Civil Misc.
Petition No.45902 of 2006. It is submitted
that State Government has categorically
clarified that the benefits of the U.P.
Recruitment of Dependents of Government
Servants Dying in Harness Rules, 1974 (
hereafter referred to as ' Rules of 1974') are
not applicable in the case of petitioner as
his father went missing.

12. Further the learned counsel for
respondent nos.2 and 3 draw the attention
of the Court towards the averment made
at paragraph no.6 of counter affidavit, in
which, it is submitted that the father of
the petitioner, Sri Narendra Pratap Singh
absented
himself
since
15.04.1996
without
any
sanctioned
leave
or
information. As per the claim of the
petitioner as his father went missing since
01.05.1996 he ( Narendra Pratap Singh)
should be presumed to have met a civil
death. On such fiction of law the
petitioner applied on 18.11.2003 for
appointment under the Rules of 1974, and
that a compassionate appointment is an
exception to the Rule and the petitioner
cannot claim the same as a right.
Compassionate appointment is provided
to meet the sudden financial crisis which
arise due to the death of the bread earner,
the Law in this regard is very clear; such
an appointment cannot be claimed as a
right. Moreover the State Govenment has
categorically clarified that the benefit of
Rules of 1974, have not been extended to
dependents of such employees who are
missing as such the petitioner was not
entitled to be appointed under the Rules
of 1974, there was no question tht the
answering respondent could have given
the petitioner an appointment on some
post under the Rules of 1974. The order
impugned suffer from no infirmity.

13. Rejoinder Affdidavit has been
filed by the petitioner and he denied all the
avements made in the counter affidavit and
reiterated the ground taken in the writ
petition.

14. Having heard the learned counsel
for the parties and perused the record.
1 All. Rajendra Prasad Singh Vs. State of U.P. & Ors.
815

15. It is not in dispute that the father
of the petitioner went missing in May, 1996
while working as a peon in the respondent
organization. Even after seven years, his
whereabouts could not be known and the
police submitted a missing report. In view
of the provisions of Section 108 of Indian
Evidence Act, 1872, father of the peitioner
had not been traceable, hence it is
presumed that such a missing person has
already died in the eyes of law after the
lapse of seven years and since the father of
petitioner has been acknowledged to be
dead during the tenure of employment,
hence dependents ought to have been given
compassionate appointment. There is no
lecuna in the candiature of the petitioner
nor any formality is left to be completed by
the petitioner in asmuch as an indemnity
bond has already been submitted by the
petitioner as required under the Govt. Order
dated 20.03.1987 for the purpose in case
the missing employee comes into picture in
future, all the payments made to the family
would be adjusted. Even after the directions
issued by this High Court, vide its order
dated 24.08.2006 in the earlier writ petition
filed
by
the
petitioner,
instead
of
considering and allowing the legitimate
claim of the petitioner for compassionate
appointment, the respondent no.2 has
simply rejected the representation on totally
non-existent ground, without application of
mind and even without considering the
specific observations made by the High
Court, treating the ptitioner as dependent of
a person/ employee dying a civil death in
harness.

16. The father of petitioner is missing
from 01.05.1996 and has not yet been
traceable, hence according to the provisions
of section 108 of the Indian Evidence Act,
it is to be presumed that such person is
dead in the eye of law after the lapse of 7
years and once the father of petitioner has
been acknowledged to be dead during the
course of his service, the petitioner being
his dependent is entitled to get employment
on compassionate ground under 1974
Rules. In this regard the provisions of
section 108 of the Indian Evidence Act,
1872 are being quoted hereunder:-

"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, if 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
burdedn of proving that he is alive is the
person who affirms it."

17. The law is well settled that if a
person is missing for more than 7 years,
then the dependent of such person should
be given appointment under the 1974
Rules. The financial condition of petitioner
is such in which he is fully entitled for
compassionate appointment so as to enable
him to meet out the family expenses,
otherwise the family of the petitioner,
which is on the verge of starvation will be
ruined.

18. In this regard, reference may be
made to the law as laid down by this Court
in the case of Amit Sharma Vs. State of
U.P. And others [2009 (4) ESC2511 (All)]
and was pleased to observe in paragraph
No.11, which is being quoted herein
below:-

"Standing Counsel has placed reliance
upon counter affidavit in which it has been
averred that the Dying-in- Harness Rules,
1974 are not applicable as the said rules do
not provide for compassionate appointment
816 INDIAN LAW REPORTS ALLAHABAD SERIES
to the dependent of the employee who is
claimed to have been missing from service
of seven years on aforesaid rules are
applicable to the Standing Counsel the
notice of the aforesaid rules are applicable
to the dependents of government servants
who have died in harness while working. It
is stated that the death of deceased
Government employee has a nexus with the
actual death of the Government servant in
harness and not a civil death and that on
presumption of civil death, only pension
and other dues are payable. Reference in
this regard have been made to the
Government
Orders
dated
9.12.2008,
13.7.2006 and 21.5.2007, copy whereof is
annexed as Annexures 3, 4 and 5 to the
affidavit."

19. This Court further in the case of
Ajay Kumar Shukla Vs. State of U.P. And
others [2005(1)E.S.C. (All.807) observed in
paragraph No. 8, which is being quoted
herein below:-

" It may be stated here that a human
being can died under various circumstances,
for example, a person may died on account of
natural causes, or on account of an accident,
or that the person may commit suicide, or die
in war, or in anti-terrorist activities, or there
may be a presumptive death, namely, that a
person is missing sinice long and therefore,
presumed to be dead. The Rules of 1974 does
not specify the manner of death that would
qualify for an employment to the heirs.
Therefore, in my view all kinds of death
caused by every possible manner, would be
included in the Dying in Harness Rules and
the benefit of employment has to be given to
the dependant of the person, who dies in
harness."

20. This Court further take the similar
view in the case of Sanjay Kumar Singh Vs.
State of U.P. and others [2005(3) A.W.C.
2724 (LB) observed in paragraph Nos. 9 and
10, which are being quoted herein below:-

"And more so, according to the
Section 108 of the Evidence Act when a
person who is not traceable for the last 7
years from the date of his missing, shall
be deemed to be dead. Section 108 of the
Evidence Act is reproduced as under:-

" 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.

There may be cases where while
discharging duties particularly in police force
or armed force persons may be placed in the
list of lost or missing employees for some
unforeseen
reasons
and
denial
for
appointment on compassionate ground to the
dependents of such employees even after the
lapse of statutory period of 7 years shall
frustrate the very purpose of the Dying-inHarness Rules. "

21. This Court in the case of Sima
Devi Vs. Senior Superintendnet of
Police, Jhansi and others ( 2002(2)
ESC (All. 37) observed in paragraph
no.7 which is being quoted herein
below:

"In my consideration, this is not the
correct understanding of provision and
spirit of the 'Rule 1974'. The benefit of
giving appointment on compassionate
ground has to be extended to the
dependent of a person who died in
service and the same is to be given to a
1 All. Rajendra Prasad Singh Vs. State of U.P. & Ors.
817
person who is legally entitled for such
benefit. The nature, manner and cause
of death may be many, such death,
might
occur
in
natural
course,
accidental, murder, natural calamities,
during war, anti-terrorist activities etc.
as the manner the death likely to occur
in service has not been specified in the
'Rule 1974' therefore, the death caused
by every possible manner could be
conceived of and has to be considered
for the purpose of extending benefit for
giving employment to the dependent of
person died in service interference to
Rule 5 of 'Rule 1974'."

In view of the above observations,
the writ petition is allowed. The
respondents are directd to consider to
give the employment to the petitioner to
the post of Class IV post/Constable in
the department of Civil Police in State
of Uttar Pradesh and take such decision
within six weeks from the date of
receipt of the order and place the
petitioner at soe suitable place near her
home town and previous benefits which
have already been extended to her could
be adjusted or reimbursed from the
benefits which are to be extended to her
in accordance to the law after giving
fresh appointment to the petitioner."

22. This Court in the case of Smt.
Rama Devi and another Vs. State of
U.P. And others, Writ A No.30612 of
2008 decided on 21.9.2010 considering
the above judgments was pleased to
observed as under:-

"Having heard learned counsel for
the parties and keeping in view the
submissions raised this issue is no
longer resintegra as held by this Court
in the cases referred to herein above.
The executive instructions therefore
cannot take away the rights of the
petitioner
to
claim
compassionate
appointment after the civil death of the
employee.
The
respondents
have
themselves released all post terminal
benefits."

23. In view of the above discussion
and the observation and direction given in
the above referred case law, the principle
of purposeful interpretation may be
applied
in
the
present
case
while
considering the availability of benefits to
the petitioner under Dying-in-Harness
Rules. The purpose of Dying-in-Harness
Rules is to provide help to the family of
the deceased of a Government employee
by making appointment on compassionate
ground. After the death of Governmnt
employee in harness or in case the
Government employee is not traceable on
account of certain mishappenings like
happened in the present case, the
appointment on compassionate ground of
a dependent may save the family from
dying on account of starvation and
financial hardships. Hence, the writ
petition
deserves
to
be
allowed.
Accordingly, the impugned order dated
16.11.2006 passed by respondent No.2
(Annexure No.15 to the writ petition) is
hereby quashed. The matter is remanded
back to the respondent no.2 to consider
the grievance of the petitioner afresh for
compassionate appointment on a suitale
post in the light of the observations made
hereinabove within two months from the
date
of
production
of
a
certified/
computer generated copy of this order
before him by a reasoned and speaking
order.

24. Accordingly, the writ petition
is partly allowed. Nor order as to cost.
----------
818 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)01ILR A818
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2020

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ A No. 9927 of 2020

Chandrawati Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ram Lalit Chaudhary

Counsel for the Respondents:
C.S.C., Sri Awadhesh Kumar, Sri Bhupendra
Kumar Tripathi

A. Constitution of India - Article 23 -
Minimum
Wages
Act,
1948
-
Remuneration - Less than minimum wage
- 'Other form of Forced Labour' - Ambit
and Scope - Where a person provides
labour
or
service
to
another
for
remuneration which is less than the
minimum wage, the labour or service
provided by him clearly falls within the
scope and ambit of the words 'forced
labour' under Article 23 - Rs. 1000/- paid
to lady-cook in Primary School for more
than 14 years - Petitioner was never in a
position to bargain with the might of the
State and continued to suffer the violation
of a rights - Held, the State has misused
its dominant position in fixing the wages
as
have
been
fixed
by
the
two
Government Orders to be paid to the
cooks employed for providing mid-daymeal - General mandamus issued to
remedy the ill. (Para 8, 10, 14 and 15)
B. Constitution of India - Part III -
Violation of Fundamental Rights -Role of
the Court - Court as custodian - Socio
economic equality - Held, this Court being
a custodian of the fundamental rights
cannot shut its eyes to the injustice
carried out against the petitioner and the
persons, who are similarly placed by an
act of the State, which claims to achieve
socio economic equality as the cherished
dreams of the Constitution. (Para 12)
Writ Petition allowed. (E-1)
Cases relied on :-
1. People's Union For Democratic Rights & ors.
Vs U.O.I. & ors., (1982) 3 SCC 235

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. The present writ petition has been
filed
alleging
that
the
petitioner
is
continuously working as a cook for making
mid-day-meal in Basic Primary School
Pinesar, Basti since 2005 and petitioner is
also a member of Mandhyan Bhojan
Rasoiya Mazdoor Sangh. The petitioner has
approached this Court alleging that despite
the fact that the petitioner is working since
2005, the petitioner has been removed
without any opportunity from 01.08.2019.
It is also alleged that since the appointment
of the petitioner was made in the year 2005,
the petitioner was paid monthly wages of
Rs. 1000/- per month and, despite the
petitioner having worked for more than 14
years, she has been removed. The petitioner
claims to be a very poor lady and has no
other source of income, however, somehow
she managed resources to approach this
Court for highlighting the exploitation of
the petitioner at the hands of the
government and the authorities which are
State, within the meaning of Article 12.

2. This Court had expressed its
displeasure in the manner in which the
amount of Rs. 1000/- was being paid to the
poor lady for more than 14 years and,
looking into the exploitation of the
petitioner, had called the respondents to file