Sm t. Vinita Kotnala v. State of Uttaranchal & Ors

I have heard Shri M.C. Kandpal, learned Senior Advocate assisted by Shri S.S. Chaudhary, learned counsel for the petitioner and Shri M.C. Tiwari, Additional Chief Standing Counsel for the State/ respondents and perused the record. 4

#5. Learned counsel for the petitioner submitted that once the case of the petitioner is considered under Dying-In-Harness Rules for payment of pensionary benefits and gratuity, the respondents should have considered her case for compassionate appointment under the same Rules. He argued that once the petitioner(cid:146)s husband is not traceable for more than seven years, the petitioner is entitled to be considered for compassionate appointment under Dying-In- Harness Rules.

#6. On the other hand, Shri M.C. Tiwari, learned Additional Chief Standing Counsel for the State/ respondents submitted that the claim of the petitioner for compassionate appointment cannot be considered under Dying-In-Harness Rules, 1974 as same do not apply in the case of a missing employee.

#7. Rule 5 of the Dying-In-Harness Rules provides that on the death of Government servant, one member of his family shall be given a suitable employment in Government service. Rule 5 of the Dying-In-Harness Rules is reproduced below: the spouse of (cid:147)[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 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 5 Government or a State Government shall, on making an application purposes, suitable a 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) (ii) fulfils educational qualifications prescribed for the post, is otherwise qualified for Government service, and (iii) makes the application for employment within 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 the deceased Government servant was employed prior to his death.] in which (3) Each appointment under sub- rule (1) should be under the condition that the person appointed under sub-rule (1) shall upkeep those other family members of the deceased Government Servant who are incapable for their own maintenance and were dependent of the abovesaid deceased Government servant immediately before his death.](cid:148)

#8. Rule 2 (b) of the Dying-In-Harness Rules defines the deceased government servant in the following manner: (cid:147)deceased Government servant(cid:148) means a Government servant who dies while in service; 6

#9. From the perusal of aforesaid provision of the Dying-In-Harness Rules, it is clear that one member of Government servant, who dies while in service, is entitled for suitable employment Government service. In the present case, it is not disputed that husband of the petitioner has not been heard of for seven years by those who would naturally have heard of him if he had been alive. In such circumstances the husband of the petitioner should be treated as dead for the purpose of grant of benefit under the Dying-In-Harness Rules. The respondent authorities cannot deny the benefit which petitioner is entitled in the event of death of her husband.

#10. In view of above discussion, writ petition is allowed. Order dated 05.10.2005 passed by S.P. Uttarkashi is quashed. Respondents are directed to reconsider the application of the petitioner compassionate appointment under Dying-in-Harness Rules by treating her husband dead as defined under Section 2 (b) of Dying-in-Harness Rules, within a period of one month from the date of production of certified copy of order.

#11. No order as to costs. Arpan (V.K. Bist, J.) 30.07.2010