Ramakant Singh vs State of U.P. and others

Amreshwar Pratap Sahi, J.—Heard learned Counsel for the petitioner and the learned Counsel for the respondents.

A counter-affidavit has been filed today and an amendment application has also been filed which has been allowed today.

The basic challenge in the writ petition was for a mandamus directing the learned District Judge to engage the petitioner as a dependant of an employee who had died-in-harness. During the pendency of the writ petition the amendment application was filed challenging the order of the learned District judge whereby the claim of the petitioner has been formally rejected vide order dated 16th December, 2005.

Learned Counsel for the petitioner contends that the petitioner''s father went missing while he was working as a permanent employee in the year 1997. An F.I.R. was lodged and his whereabouts were not traceable as such the petitioner made a request to the learned District Judge to grant him compassionate appointment under the dying-in-harness rules. It is submitted that a report in favour of the petitioner was submitted and the matter was under consideration but since no orders were passed therefore the present writ petition was preferred.

Learned Counsel for the petitioner submits that even in the case of a civil death having been confirmed in view of the provisions of section 108 of the Indian Evidence Act, a dependant would be entitled for employment under the dying-in-harness rules for which reliance has been placed on a couple of judgments of this Court.

Learned Counsel submits that for the said purpose a suit was instituted by the petitioner being Original Suit No. 85 of 2005 impleading therein daughter of the deceased employee and also the public at large seeking a declaration about the civil death of his father. The said suit is stated to have been decreed on 7th October, 2005 holding that the petitioner''s father was untraceable for the past more than 7 years his civil death should be presumed. Relying on the said decree the petitioner contends that the learned District Judge ought to have considered the claim of the petitioner and the order of rejection dated 16.12.2005 is founded on irrelevant considerations. He further submits that the Government Order dated 22nd December, 2004 is in the teeth of law laid down by this Court and therefore the reason given in the said order is unsustainable.

Learned Counsel for the respondents Pooja Goel holding brief of Sri Yashwant Verma contends that the decree obtained by the petitioner does not come to his aid in the matter of any employment inasmuch as neither the State nor the learned District Judge was made a party to the said suit. It is further submitted that the Government Order of 2004 restricts the extension of such benefit in matters relating to civil deaths and therefore the claim of the petitioner has been rightly rejected by the District Judge.

Having heard learned Counsel for the parties, it is evident that neither the State nor the District Judge were made parties in the suit. Merely because a office has decided the case will not amount to a proper presentation of a plaint and the case was conducted without impleading the proper and necessary parties. The decree therefore obtained would not be against the District Judge merely because a Civil Judge had decided the case. The Civil Judge while deciding the suit was acting as an umpire and was not the agent or the representative of the District Judge in his capacity as an employer of the district judgeship of Mainpuri. The contention therefore raised that since the decision has been rendered by the Civil Court will amount to a proper representation is misconceived and deserves to be rejected.

The decision even otherwise is not a decision in-rem in the sense that the same would not apply in a matter arising out of such employment which is governed by rules framed under Article 309 of the Constitution of India. The rules so framed authorizes the State Government to offer employment in a certain contingency and therefore the State ought to have been made a necessary party in the suit for the purpose of obtaining a declaration so as to allow the decree to operate against the State and the learned District Judge. This having not been done the decree was not binding on the learned District Judge.

The word Awam (public at large) as depicted in the plaint will not include the State Government or the learned District Judge and they will have to be represented keeping in view the observations made hereinabove.

The submission raised that the petitioner was entitled to compassionate appointment ignoring the Government Order of 2004 cannot be considered in view of the fact that the death of the petitioner''s late father as against the State has not been established in the suit filed by him. Accordingly all the three grounds taken are unsustainable and the judgment and decree would not be relevant in relation to the employment of the petitioner keeping in view the provisions of section 41 of the Indian Evidence Act.

The writ petition lacks merit and is accordingly dismissed.