# Usha Devi v. State of U.P. & Anr

- **Citation:** (2023) 7 ILRA 188
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-10
- **Case number:** Writ A No. 2878 of 2014
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/usha-devi-v-state-of-u-p-anr-50401
- **Pages:** 5

## Headnote

Law
-
Compassionate
Appointment - There cannot be any
occasion
for
giving
compassionate
appointment to the legal heirs of a retired
employee.

The petitioner's husband had gone missing on
20.07.2002 while working as Senior Clerk under
the respondents. His actual date of retirement
was 30.04.2006. The petitioner had filed a suit
for declaration before the competent court for
declaring that the petitioner's husband was
dead. The declaration has been issued on
23.02.2011. By the time the declaration was
issued, the petitioner's husband stood retired.
The petitioner's claim for compassionate
appointment has been rejected by the
department vide order dated 10.07.2013
on the ground that by the time the
declaration
has
been
given
by
the
competent court of law on 23.02.2011, the
petitioner's husband stood retired and as
such there could not be any occasion for
giving compassionate appointment to the
legal heirs of a retired employee. (Para 7)

B. The Evidence Act, 1872: Section 108 -
Presumption of death - The burden of
proving the specific date of death lies
upon the person who claims a right to the
establishment of that fact. Section 108 of
the Evidence Act indicates the presumption of
death where a person has not been heard for
seven years but the exact time of death is not a
matter of presumption but of evidence and the
onus of proving that the death took place at any
particular time within 7 years lies upon the
person, who claims a right to the establishment
of which that fact is essential. (Para 10, 11)

In the instant case, it is the petitioner who is
trying to stake her claim for compassionate
appointment by asserting that the death of the
petitioner's husband took place even prior to his
actual date of retirement which was 30.04.2006,
he
having
gone
missing
on
20.07.2002.
However, nowhere in the entire petition the
actual date of death of the petitioner's husband
is mentioned nor any actual date is coming out
from the declaration of any competent court as
to on which date the petitioner's husband had
died. The question remains disputed as to the
fact of actual date of the petitioner's husband.
(Para 12, 13, 14)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

188 INDIAN LAW REPORTS ALLAHABAD SERIES
make it a case of no evidence. The
inquiry officer has appreciated the
evidence and returned a finding that the
respondent is guilty of misconduct."

(20) When we thus analyze the
judgment rendered by the learned Single
Judge in this case in the light of the
aforesaid legal principles, what we find is
that there is no finding recorded by the
learned Single Judge that the disciplinary
proceedings were not conducted in
accordance with any rule or law. Learned
Single Judge has also not found any flaw
or
illegality
or
irregularity
in
the
procedure followed during the course of
disciplinary
proceedings
against
respondent No.1/petitioner. Findings as
regards non-observance of principles of
natural justice have also not been
returned by the learned Single Judge.

(21) To the contrary, there is nothing
on record which can even remotely point
out that there has been any procedural
lapse or any irregularity or illegality or
infringement or violation of any rule
while the disciplinary proceedings were
conducted in this case against respondent
No.1/petitioner. In absence of any such
lapse emerging from the record, in our
considered opinion, learned Single Judge
ought not to have entered into the
findings recorded by the disciplinary and
appellate authorities to the extent of
substituting its own findings. While we
say so, we do not mean to state that in no
such matters relating to disciplinary
proceedings, interference by this Court
under Article 226 of the Constitution of
India is permissible, however, the scope
is very limited so far as the findings
recorded by the disciplinary authority or
appellate authority are concerned. As
alrady observed above, in the case of P.
Gunasekaran (supra) Hon'ble Supreme
Court has already held that the adequacy
of
evidence
or
even
reliability
of
evidence will not be permissible for this
Court to go into in exercise of its
jurisdiction under Article 226 of the
Constitution of India if the findings
recorded by the disciplinary authority or
the appellate authority are based on some
legal evidence on which findings can be
based.

(22) For the reasons aforesaid, we
do not find ourselves in agreement with
the judgment and order passed by the
learned Single Judge which is under
appeal before us.

(23) Resultantly, the appeal is
allowed and the judgment and order
dated 27.04.2023 passed in Writ-A No.
14919 of 2021 is hereby set aside.

(24) However, there will be no order
as to costs.
----------
(2023) 7 ILRA 188
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.07.2023

BEFORE

THE HON'BLE ABDUL MOIN, J

Writ A No. 2878 of 2014

Usha Devi ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Salik Ram Yadava

Counsel for the Respondent:
C.S.C., Nadeem Murtaza
7 All. Usha Devi Vs. State of U.P. & Anr.
189
A.
Service
Law
-
Compassionate
Appointment - There cannot be any
occasion
for
giving
compassionate
appointment to the legal heirs of a retired
employee.

The petitioner's husband had gone missing on
20.07.2002 while working as Senior Clerk under
the respondents. His actual date of retirement
was 30.04.2006. The petitioner had filed a suit
for declaration before the competent court for
declaring that the petitioner's husband was
dead. The declaration has been issued on
23.02.2011. By the time the declaration was
issued, the petitioner's husband stood retired.
The petitioner's claim for compassionate
appointment has been rejected by the
department vide order dated 10.07.2013
on the ground that by the time the
declaration
has
been
given
by
the
competent court of law on 23.02.2011, the
petitioner's husband stood retired and as
such there could not be any occasion for
giving compassionate appointment to the
legal heirs of a retired employee. (Para 7)

B. The Evidence Act, 1872: Section 108 -
Presumption of death - The burden of
proving the specific date of death lies
upon the person who claims a right to the
establishment of that fact. Section 108 of
the Evidence Act indicates the presumption of
death where a person has not been heard for
seven years but the exact time of death is not a
matter of presumption but of evidence and the
onus of proving that the death took place at any
particular time within 7 years lies upon the
person, who claims a right to the establishment
of which that fact is essential. (Para 10, 11)

In the instant case, it is the petitioner who is
trying to stake her claim for compassionate
appointment by asserting that the death of the
petitioner's husband took place even prior to his
actual date of retirement which was 30.04.2006,
he
having
gone
missing
on
20.07.2002.
However, nowhere in the entire petition the
actual date of death of the petitioner's husband
is mentioned nor any actual date is coming out
from the declaration of any competent court as
to on which date the petitioner's husband had
died. The question remains disputed as to the
fact of actual date of the petitioner's husband.
(Para 12, 13, 14)

Writ petition dismissed. (E-4)

Precedent followed:

1. Zishan Khan Vs District Inspector of Schools
& ors., 2012 LawSuit (All) 1265, decided on
02.03.2012 (Para 5)

2. N. Jaayalakshmi Ammal & ors. Vs R. Gopala
Pathar & anr., 1995 Supp (1) SCC 27 (Para 5)

3. Darshan Singh & ors. Vs Gujjar Singh & ors.,
(2002) 2 SCC 62 (Para 5)

4. Lal Chand Marwari Vs Mahant Ramrup Gir,
AIR 1926 PC 9 (Para 11)

Present
petition
assails
order
dated
10.07.2013 except the payment dues
passed,
and
prays
for
direction
for
appointment under Dying in Harness Rule
with all consequential benefits.

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard learned counsel for the
petitioner
and
Shri
Prashastha
Puri,
Advocate holding brief of Shri Nadeem
Murtaza, learned counsel appearing on
behalf of respondent no.2.

2. The case had been heard at length
on 05.07.2023. On the request of learned
counsel for the petitioner, the matter had
been fixed for today.

3. Shri Salik Ram Yadava, learned
counsel for the petitioner has been heard at
length.

4. The instant petition has been filed
by the petitioner for the following reliefs:

"(1). Issue a writ, order or
direction in the nature of certiorari
190 INDIAN LAW REPORTS ALLAHABAD SERIES
quashing the order dated 10.07.2013 except
the payment dues passed by the respondent
no.2 annexed as annexure no.1 to the writ
petition.

(2). Issue a writ, order of
direction in the nature of mandamus
commanding the respondents to appoint the
petitioner under Dying in Harness Rule at
the place of her husband and pay him all
consequential benefits."

5. The facts of the case are as under:-

The petitioner a widow claiming
compassionate appointment is aggrieved by
the order dated 10.07.2013, copy of which
is annexure no.1 to the writ petition
whereby the claim of the petitioner for
compassionate
appointment
has
been
rejected. The ground of the rejection is that
the husband of the petitioner went missing
on 20.07.2002 while working as Senior
Clerk under the respondents. His date of
retirement was 30.04.2006 while the
declaration
by
the
competent
court
declaring the petitioner's husband as dead
has been issued on 23.02.2011 and thus, by
the time the declaration has been given by
the competent court, the husband of the
petitioner
already
stood
retired,
consequently she is not entitled for
compassionate appointment.

The order of rejection has been
challenged by the petitioner by placing
reliance on the judgement of this Court in
the case of Zishan Khan vs. District
Inspector of Schools and Others 2012
LawSuit(All) 1265 decided on 02.03.2012
whereby this Court has held in a similar
matter that the presumption of death would
arise prior to the date of retirement, when
the department itself has paid the retiral
dues of the missing employee and in this
case too as the retiral dues have been paid
as such the presumption of the death of
petitioner's husband would relate back to
the
date
of
his
disappearance
i.e.
20.07.2002.

On the other hand, Shri Prashatha
Puri, Advocate holding brief of Shri
Nadeem
Murtaza,
learned
counsel
appearing for respondent no.2 has placed
reliance on the judgments of the Apex
Court in the cases of N. Jayalakshmi
Ammal and Others v. R. Gopala Pathar and
Another 1995 Supp (1) SCC 27 and
Darshan Singh and Others V. Gujjar Singh
and Others (2002) 2 SCC 62 and contends
that the Apex Court has held that though
Section 108 of the Evidence Act indicates
the presumption of death where a person
has not been heard for seven years but the
exact time of death is not a matter of
presumption but of evidence and the onus
of proving that the death took place at any
particular time within 7 years lies upon the
person, who claims a right to the
establishment of which that fact is
essential.

Placing reliance on the aforesaid
observations, the argument of Shri Puri is
that in the facts of the instant case where
the
disappearance
of
the
petitioner's
husband took place in July, 2002 and he
retired on 30.04.2006 while the declaration
of the competent court is 23.02.2011 as
such at the time of consideration of claim
of
compassionate
appointment,
the
petitioner's husband already stood retired
and there is no evidence to indicate the
exact time of death of the petitioner's
husband prior to his retirement date and
consequently there would not be any
occasion for consideration of the claim of
the compassionate appointment inasmuchas
compassionate appointment can only be
claimed by the legal heirs of the deceased
employee who dies in harness, but in this
particular case there could not be any
consideration
of
compassionate
7 All. Usha Devi Vs. State of U.P. & Anr.
191
appointment after the retirement of the
employee.

Placing reliance on the judgment
of this Court in the case of Zishan Khan
(supra), the contention of learned counsel
for the petitioner is that in the said case also
this Court is of the view as the retiral dues
have been paid even prior to the date of
actual
retirement
of
the
employee
concerned
consequently
it
would
be
deemed that the said employee had retired
prior to his retirement consequently the
legal heir would be entitled to be
considered for compassionate appointment.
In this case too though the retiral dues have
been
paid
much
subsequent
to
the
retirement of the employee concerned. Yet
considering that the said retiral dues were
due to be paid in terms of the relevant rules
after two year of the date of the employee
having gone missing. Consequently, it
should be deemed that the employee died
after two years of his having gone missing.
This date would be prior to the date of
actual
retirement.
Consequently,
the
petitioner
would
be
entitled
for
compassionate appointment.

6. Heard learned counsel for the
parties and perused the record of this case.

7. From the argument of learned
counsel for the parties and perusal of record
it emerges that the petitioner's husband had
gone missing on 20.07.2002 while working
as Senior Clerk under the respondents. His
actual date of retirement was 30.04.2006.
The petitioner had filed a suit for
declaration before the competent court for
declaring that the petitioner's husband was
dead. The declaration has been issued on
23.02.2011. By the time the declaration was
issued, the petitioner's husband stood
retired.
The
petitioner's
claim
for
compassionate
appointment
has
been
rejected by the department vide order dated
10.07.2013 on the ground that as the
petitioner's husband had gone missing on
20.07.2002 while his actual date of
retirement was 30.04.2006 as such by the
time the declaration has been given by the
competent court of law on 23.02.2001, the
petitioner's husband stood retired and as
such there could not be any occasion for
giving compassionate appointment to the
legal heirs of a retired employee.

8. The sheet anchor of the case of the
learned counsel for the petitioner is the
judgment of this Court passed in the case of
Zishan Khan (supra). In the said case, this
Court after considering that the department
has itself paid retiral dues much prior to the
actual date of retirement of the employee
concerned who had also gone missing had
deduced that the department has itself
treated the employee to have died much
prior to the date of retirement and
consequently
held
that
compassionate
appointment would be admissible.

9. However in the instant case as per
the facts already enumerated above, it is
apparent that the petitioner's husband
would have retired on 30.04.2006 and the
competent court has given a declaration of
his
death
on
23.02.2011
i.e.
much
subsequent to the date of retirement of the
petitioner's husband. The retiral dues have
been paid subsequent to the actual date of
the retirement of petitioner's husband.

10. The Apex Court in the case of R.
Gopala Pathar (supra) as well as Gujjar
Singh (supra) has categorically held that
Section 108 of the Evidence Act indicates
the presumption of death where a person
has not been heard for seven years but the
exact time of death is not a matter of
presumption but of evidence and the onus
192 INDIAN LAW REPORTS ALLAHABAD SERIES
of proving that the death took place at any
particular time within 7 years lies upon the
person, who claims a right to the
establishment of which that fact is
essential.

11. Likewise the Privy Council in the
case of Lal Chand Marwari Vs. Mahant
Ramrup Gir reported in AIR 1926 PC 9, a
case which has been referred to by this
Court in the case of Zishan Khan (supra)
has also held that if the person has not been
heard of for 7 years, there is a presumption
of law that he is dead; but at what time
within that period he died is not a matter of
presumption but of evidence and the onus
of proving that the death took place at any
particular time within the seven years lies
upon the person who claims a right to the
establishment of which that fact is
essential.

12. In a number of judgments over
which the reliance has been placed by
this Court in the case is Zishan Khan
(supra), it is apparent that the burden of
proving the specific date of death lies
upon the person who claims a right to the
establishment of that fact. In the instant
case, it is the petitioner who is trying to
stake
her
claim
for
compassionate
appointment by asserting that the death of
the petitioner's husband took place even
prior to his actual date of retirement
which was 30.04.2006, he having gone
missing on 20.07.2002.

13. Considering the law laid down by
the Apex Court in the case of R. Gopala
Pathar (supra), Gujjar Singh (supra) as
well as by the Privy Council in the case of
Lal Chand Marwari (supra), it is
apparent that the presumption of proving
the actual date of death would lie on the
petitioner. However, nowhere in the entire
petition the actual date of death of the
petitioner's husband is mentioned nor any
actual date is coming out from the
declaration of any competent court as to on
which date the petitioner's husband had
died.

14. This Court while exercising the
jurisdiction under Article 226 of the
Constitution of India finds that the question
remains disputed as to the fact of actual
date of the petitioner's husband.

15. Keeping in view of the aforesaid,
discussion this Court does not find any
infirmity with the impugned order dated
10.07.2013 and the writ petition is
accordingly dismissed.

16. However, the petitioner would be
at liberty of approaching the competent
court of law for a declaration regarding the
actual date of death of her husband.
----------
(2023) 7 ILRA 192
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.07.2023

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ A No. 18566 of 2021

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

Counsel for the Petitioner:
Ajay Madhavan

Counsel for the Respondents:
C.S.C., Gaurav Mehrotra, Prashasht Puri,
Prashast Puri