# Vaibhav Tiwari v. State of U.P. and others

- **Citation:** (2011) 3 ILRA 1252
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-09
- **Case number:** Civil Misc. Writ Petition No. 65844 of 2008
- **Bench:** Krishna Murari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vaibhav-tiwari-v-state-of-u-p-and-others-41961
- **Pages:** 3

## Headnote

Servants (Dying in Harness Rules) 1974-
Rule-5-compassionate
appointment
petitioner's father working as Police
Constable missing from 31.01.1998-FIR
lodged
on
17.09.1998-treating
civil
death after 7 years all benefits givenclaim
for
appointment
rejected
on
ground of absnece of specific provisionheld-not
proper-under
rule
no
description
of
nature
of
death
or
difference
between
death
and
civil
death-entitled for appointment.

Held: Para 6

From a perusal of the above Rules, it is
clear that where a Government servant
dies in harness, a member of the family
could be given appointment under the
Rules. The Rules do not contemplate
death of any particular kind in order to
benefit the heirs. It only provides that in
case a Government servant dies in
harness, one member of the family
would be entitled to be considered for
grant of compassionate appointment.
The Rules do not specify the manner of
death
that
would
qualify
any
employment to the heirs. The language
of the Rules clearly suggests that all kind
of death caused by every possible
manner, would be included under the
Rules and the benefit of employment has
to be given to the dependants of the
person, who dies in harness and the
cases where civil death is presumed in
law, are not liable to be excluded.
Case law discussed:
[(2005) 1 UPLBEC 858]; [2009 (6) ADJ 591]

## Text

1252 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2011

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 65844 of 2008

Vaibhav Tewari

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

Counsel for the Petitioner:
Sri Ashok Khare
Sri Siddharth Khare

Counsel for the Respondents:
C.S.C.

U.P. Recruitment of Dependents of Govt.
Servants (Dying in Harness Rules) 1974-
Rule-5-compassionate
appointment
petitioner's father working as Police
Constable missing from 31.01.1998-FIR
lodged
on
17.09.1998-treating
civil
death after 7 years all benefits givenclaim
for
appointment
rejected
on
ground of absnece of specific provisionheld-not
proper-under
rule
no
description
of
nature
of
death
or
difference
between
death
and
civil
death-entitled for appointment.

Held: Para 6

From a perusal of the above Rules, it is
clear that where a Government servant
dies in harness, a member of the family
could be given appointment under the
Rules. The Rules do not contemplate
death of any particular kind in order to
benefit the heirs. It only provides that in
case a Government servant dies in
harness, one member of the family
would be entitled to be considered for
grant of compassionate appointment.
The Rules do not specify the manner of
death
that
would
qualify
any
employment to the heirs. The language
of the Rules clearly suggests that all kind
of death caused by every possible
manner, would be included under the
Rules and the benefit of employment has
to be given to the dependants of the
person, who dies in harness and the
cases where civil death is presumed in
law, are not liable to be excluded.
Case law discussed:
[(2005) 1 UPLBEC 858]; [2009 (6) ADJ 591]

(Delivered by Hon'ble Krishna Murari, J. )

1. Heard learned counsel for the
petitioner and learned Standing Counsel
for the respondents.

2. Petitioner's father was working as
a Constable in Civil Police. He went
missing from 31.01.1998. When there was
no trace of his whereabouts, the mother of
the petitioner lodged a First Information
Report on 17.09.1998 at Police Station
Kotwali, District Ballia. After expiry of
period of 7 years, his civil death was
presumed and the respondents treating
him to be dead, proceeded to sanction and
release family pension to the mother of
the petitioner and also released Gratuity,
General Provident Fund and Group
Insurance etc. Mother of the petitioner
moved an application dated 28.07.2005
before the Superintendent of Police for
giving compassionate appointment to the
petitioner. When no action was taken,
another application dated 27.12.2006 was
moved
before
the
U.P.
Police
Headquarter.
Vide
letter
dated
23.06.2007, Deputy Inspector General
(Establishment),
Police
Headquarter
called
for
a
report
from
the
Superintendent of Police, Ballia. The
petitioner's request for compassionate
appointment was rejected vide order dated
20.11.2008 on the ground that there is no
provision under the Dying-in-Harness
Rules, 1974 (for short the Rules) to give
3 All] Vaibhav Tiwari V. State of U.P. and others
1253
compassionate appointment to the heirs of
missing
person,
and
therefore,
the
petitioner cannot be given compassionate
appointment.

3. It is contended by the learned
counsel for the petitioner that the Rule
does not create any distinction between
a person, who is dead or whose civil
death is presumed. It only provides that
where a Government servant dies in
harness, one member of his family is
entitled to be considered for grant of
compassionate appointment.

4. In reply, it has been submitted
by the learned Standing Counsel that
the State Government vide Government
order dated 9th December, 1998 has
clarified that the provisions of the
Rules are not applicable in case of
employees, whose death is presumed in
law.

5. I have considered the argument
advanced by the learned counsel for the
parties and perused the record.

Rule 5 of the Dying-in-Harness
Rules, 1974 reads as under.

"Recruitment of a member of
the family of the deceased-

5 (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
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
applicationfor
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 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.

(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."

6. From a perusal of the above
Rules, it is clear that where a
Government servant dies in harness, a
member of the family could be given
appointment under the Rules. The
Rules do not contemplate death of any
particular kind in order to benefit the
1254 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
heirs. It only provides that in case a
Government servant dies in harness,
one member of the family would be
entitled to be considered for grant of
compassionate appointment. The Rules
do not specify the manner of death that
would qualify any employment to the
heirs. The language of the Rules clearly
suggests that all kind of death caused
by every possible manner, would be
included under the Rules and the
benefit of employment has to be given
to the dependants of the person, who
dies in harness and the cases where
civil death is presumed in law, are not
liable to be excluded.

7. The view taken by me finds
support from the judgment of the
learned Single Judge in the case of
Ajay Kumar Shukla Vs. State of U.P.
& Ors., [(2005) 1 UPLBEC 858] and
Amit Sharma Vs. State of U.P. &
Ors., [2009 (6) ADJ 591].

8. In the present case, admittedly,
the father of the petitioner was missing
for 7 years and was presumed to be
dead. Acknowledging the factum of
death, the respondents not only starting
paying family pension to the mother of
the petitioner, but also released all the
post
retiral
benefits.
In
such
circumstances, there is no reason why
the benefit of the Rules will not be
applicable in the case of the petitioner.

9. Further a Government Order
cannot have overriding effect on the
statutory Rules. Once the Rules do not
exclude the cases of civil death, the
same cannot be done by means of a
Government Order. In view of above,
the
Government
Order
dated
09.12.1998 being relied upon by the
learned Standing Counsel is of no avail
and the consideration of petitioner for
compassionate appointment cannot be
rejected
on
the
basis
of
said
Government Order.

10. In view of the above facts and
discussions, the impugned order dated
20.11.2008 passed by respondent no. 2,
Deputy
Inspect
General
(Establishment)
U.P.
Police
Headquarters, Allahabad is not liable to
be sustained and is hereby quashed.
Writ
petition
stands
allowed.
Respondent no. 2 is directed to
reconsider the petitioner's application
for employment under the Rules in
accordance with law within two months
from the date of production of a
certified copy of this order before him.

11. In the facts and circumstances,
there shall be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.10.2011

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No.66640 of 2010

Lakhmi Singh

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

Counsel for the Petitioner:
Sri S.M.A. Abdy

Counsel for the Respondents:
C.S.C.

U.P. Inferior Revenue Clerk (Registrar
kanungo)and Asst. Registrar Kanungo)
Service Rule 1958-Rule 7-readwith U.P.
Subordinate
revenue
Executive
(Bhulekh) Servicce Rules, 1977-Rule 17-