IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.3956 of 2011
Bijay Kumar Pradhan
……....
Petitioner
Versus
State of Jharkhand & others
.…...
Respondents
---------CORAM:
HON’BLE MR. JUSTICE APARESH KUMAR SINGH
For the Petitioner
: Mr.Amrendra Pradhan
For the Respondents : Mr. Jalisur Rahman, J.C to G.P.III
09/26.09.2013
Heard counsel for the parties.
According to the learned counsel for the petitioner the
father of the petitioner went missing on 23.7.2001 while he was working as
Forester and posted at the Forest Division, Garhwa North under the
Respondent
No.3,
Divisional
Forest
Officer,
Northern
Forest
Division,Garhwa. Petitioner lodged a Sanha in the police station but inspite of
all possible endeavour his father could not be located. Thereafter, necessary
rituals relating to funeral were performed by the petitioner and his relatives .
The respondents believing the death of the petitioner have also paid partial
gratuity, insurance, provident fund and even started provisional pension
since 24.7.2001 on 22.2.2008.
Learned counsel for the petitioner submits that he had
made a claim for compassionate appointment on such ground of death of his
father in harness. The respondents however refused to entertain such
application on the ground that there was no declaration that the petitioner's
father had died in harness. Petitioner, thereafter approached the Competent
Court of Civil Jurisdiction in Title Suit No. 23 of 2009 for declaration of death
of his father on 23.7.2001. Learned Sub Judge-1, Garhwa, vide judgment
dated 29.6.2010(Annexure-1) decreed the suit in his favour holding that the
plaintiff has been able to prove that his fate late Dinanath Pradhan was
missing since 23.7.2001. Thereafter, the application for compassionate
appointment of the petitioner has been rejected on 28.4.2011 vide
Annexure-4 issued by the Divisional Forest Officer, Garhwa Northern
Division on the ground that such relief cannot be accorded to the dependent
of the employee who has gone missing in view of the circular of the
Personnel
Administrative
Reforms
and
Rajbhasha
Department,
Government of Jharkhand contained in letter
-2no. 409 dated 22.1.2008.
Respondents in their counter affidavit have also
enclosed the said letter as Annexure-A and also the proceedings of the
Departmental Compassionate Appointment Committee in which the case of
the petitioner was considered and refused on the same ground. Learned
counsel for the respondent- State has justified the refusal of grant of
compassionate appointment on the sole ground that in the case of a
government employee gone missing there is no provision to grant
compassionate appointment treating it to be case of deemed death.
Learned counsel for the petitioner in support of his
contention has relied upon judgment rendered by learned Single Bench of
Allahabad High Court in Civil Misc. Writ Petition No. 17395 of 2011 in the
case of Avinash Gupta Vrs. State of U.P. & others. He has also relied
upon judgment rendered by learned Division Bench of the Uttaranchal High
Court in Special Appeal No. 173 of 2008 in the case of Director General of
Police and others Vrs. Banshidhar Bhatt delivered on 5.10.2009. He has
further relied upon a judgment rendered by the learned Single Bench of this
Court in W.P.S. No. 4946 of 2011 in the case of Podin Devi Vrs. Central
Coalfields Ltd. & others. Learned counsel for the petitioner has also relied
upon a judgment rendered by the learned Division Bench of Andhra Pradesh
High Court in Writ Appeal No. 974 of 1995 in the case of The Chief
Engineer, Central Zone, APSEB, Vijaywada and others Vrs. K. Naga
Hema reported in Services Law Reporter 1995(8) 484. Based upon these
judgments it is the contention of the petitioner that there is no distinction in
case of civil death and natural death for the purpose of compassionate
appointment as in both the cases the bread earner of the family is not there
in the scene and the dependent of the deceased has been reduced to the
state of penury. According to him in such cases the person is to be
presumed to be dead by operation of law under Section 108 of Evidence Act.
Therefore, no distinction can be drawn in the matter of such civil death and
natural death in the matter
-3of consideration of claim for compassionate appointment by the
respondents based upon their circular dated 22.1.2008(Annexure-A).
I have heard counsel for the parties and gone through
the relevant materials on record including the impugned order as well as the
judgments relied upon by the petitioner. The factum of the petitioner's father
having gone missing since 23.7.2001 is no longer the issue as it has been
determined as a question of fact by the Competent Court vide judgment
dated 29.6.2010 in Title Suit No. 23 of 2009 preferred by the petitioner before
the Court of Sub Judge-1, Garhwa. The suit has been decreed accordingly
on the issues framed thereunder including issue no. 3 i.e. “whether the
father of the defendant no. 1 to 5 and plaintiff is traceless for more than
last seven years” and issue no.4 i.e. “is the father of the plaintiff and
defendant no. 1 to 5 has died of civil death”. Learned trial court decided
the matter after thorough discussion of the evidences adduced during the
proceedings in favour of the plaintiff- petitioner, herein. The provision of
Section 108 of the Evidence Act has also been taken into account presuming
the death of petitioner's father. The exposition of law on this aspect has been
made in the judgments relied upon by the petitioner wherein in one of the
Judgment rendered by the learned Single Bench of the Allahabad High Court
in Civil Misc. Writ Petition no. 17395 of 2011, in such circumstance, it has
been held that there is no distinction between civil death and natural death
for the purpose of grant of compassionate appointment as in both the cases
the bread earner of the family is not there in the scene and dependent of the
deceased has been reduced to the state of penury. Such view has also been
taken in the judgment rendered by the learned Singe Bench of this Court in
W.P.S. 2946 of 2011 which also relates to consideration of grant of
compassionate appointment on such declaration made in the Title Suit filed
by the dependent of the said employee.
-4In such circumstances, therefore the respondents are not
justified in drawing distinction between deemed death to that of natural death
relying upon the circular issued by the Personnel Administrative Reforms and
Rajbhasha Department, Government of Jharkhand dated 22.1.2008 in such
matter of compassionate appointment. In that view of the matter, the
impugned order of rejection of compassionate appointment of the petitioner
dated 28.4.2011(Annexure-4) cannot be sustained in law and is accordingly,
quashed. The respondents shall consider the case of the petitioner for
compassionate appointment afresh in accordance with law and upon
fulfillment of all other eligibility criteria laid down under the scheme for
compassionate appointment.
The writ petition is allowed in the aforesaid terms.
(Aparesh Kumar Singh, J.)
A. Mohanty