MUNENDRA PAL SINGH CHAUHAN Vs. CHAIRMAN AND MANAGING DIRECTOR C M D U P RAJYA VIDYUT UTPADAN NIGAM LTD

JUDGEMENT

(1.) PRAKASH Krishna, J. Raising a short controversy the present writ petition he, been filed principally on the allegation that the petitioner's father Mahendra Pal Singh Chauhan was a senior operator in 'a' Power Station, Harduaganj, U. P. State Electricity Board and was a permanent employee who left the house for attending duty on 28th of August, 1990 and did not return thereafter till date. The petitioner claimed that a civil death of his father should be presumed and as his father died during the service, the petitioner is entitled for appointment under the Dying in Harness Rules. The said claim having been rejected by the respondents by the impugned order dated 17th of November, 1998, the present writ petition has been filed for quashing the impugned order dated November 17, 1998 (Annexure-2 to the writ petition) and a writ of mandamus commanding the respondents to consider the appointment of the petitioner on the post of routine grad,e clerk under the Dying in Harness Rules forthwith in place of his father and prayed for all consequential service benefits in accordance with law.

(2.) THE fact that the father of the petitioner was in the permanent service of the respondents, has not been disputed in the counter-affidavit. THE claim for compassionate appointment has been denied on the ground that the father of the petitioner was reported to be missing two days prior to his date of superannuation and he could not be traced out, but in absence of any cogent material about the date of death or place of death, it would not be proper to treat that he died during the service. By extending the benefit of Dying in Harness Rules, it will not be proper to offer the appointment to the petitioner. THE due date for the retirement of the petitioner's father was 31st of August, 1990 who after availing medical leave w. e. f. 22-8-1990 to 27-8- 1990 attended the duty in the last night shift (from 22 hours to 6 hours) on 28/29 of August, 1990 in "d" group at Harduaganj "a" THErmal Plant Station. After due date of retirement, the mother of the petitioner has been paid G. P. F. amounting to Rs. 23,488-78, encashment balance leave Rs. 8,348. 67 and arrears of pension amounting to Rs. 1,32,633-69. Besides, the family pension is being paid every month.

(3.) THE aforesaid judgment of the Privy Council has been approved by the Apex Court in Darshan Singh and Ors. v. Gujar Singh, JT 2002 (1) SC 11. A suit was filed claiming property of Jagjeet Singh who was reported to be not being heard for more than 7 years. THE High Court considered Jagjeet Singh to be "dead only on the date on which the present suit was filed. " In this fact situation the Supreme Court held that succession to the estate of Jagjeet Singh would open only on the death of Jagjeet Singh and as the plaintiff could not prove the date of death of Jagjeet Singh, therefore, his succession to the estate did not open on the date of filing of the suit, In para 5 of the report, the Apex Court noticed the decision of the Privy Council of Lal Chand Marwari v. Mohan Ram Rup Giri (supra ).