Jan - High Court of Judicature at Allahabad

1 All] Km. Gyanti V. State of U.P. & others 75it do not transpire that the saidGovernment Order has been issued whileinvoking power either under Article 162of the Constitution of India or under anyother statutory provision, therefore itcannot be said to be a statutoryGovernment Order and even if it be so,the rules framed under Article 309 willhave overriding effect over theGovernment Order dated 9th December,1998 and the Circular of the PoliceHeadquarter dated 27th August, 2007. Itis well settled that if there is any conflictin between the statutory rules and thegovernment order it is the rule which shallprevail over the Government order.16. The view taken by me findsupport from the judgment of the ApexCourt in Babaji Kondaji Garad Vs. NasikMerchants Coop. Bank Ltd. (1984) 2SCC 50.17. The matter may be examinedfrom another angle also the purpose offraming of the rules is to save out thefamily of the deceased employee from thefinancial crunch which has fallen upon thefamily after the death of an employee.The hardship which has fallen upon thefamily is to be mitigated at the earliest.The end of life or termination of lifeeither because of the natural death oraccidental death or death otherwise wouldresult into the recurring financial loss tothe family of the employee. It cannot besaid that the death within the meaning ofSection 108 in any way differentiable thanthe death otherwise where, whereabout ofan employee for more than seven years isnot known. In my considered opinion inthe case of civil death the consequenceswould be more serious as here the familyshall make its all endeavour to search outthe person who has been disassociatedfrom the family either because of hisabduction or otherwise and naturally thatwould involve the finance and if after thecontinuance efforts of seven years thepersons availability is not known, thefamily would not only suffer financialloss but otherwise also there would bemental distress and agony. Therefore alsothe distinction drawn by the Stategovernment is contrary to the object ofthe rules.18. In view of foregoing discussions,I am of the view that if a dependant ofdeceased on account of civil death claimsappointment under the provisions of 1974,he/she is entitled to be considered underthe Rules and no distinction can be drawnin between the civil death or deathotherwise.19. This Court has also taken thesame view in the case of Sima Devi Vs.Senior Superintendent of Police, Jhansiand others, 2002 (2) ESC 37, AjayKumar Shukla Vs. State of U.P. andothers, 2005 (1) ESC 807, Sanjay KumarSingh Vs. State of U.P. and others, 2005(3) AWC 2724 and Amit Sharma Vs.State of U.P. and others, 2009 (4) ESC2511.20. In the result, the writ petitionsucceeds and is allowed. The GovernmentOrder dated 9th December, 1998 and theCircular of the Police Headquarter dated27th August, 2007 are hereby quashed.The D.I.G. Karmic Police Headquarter,Allahabad is directed to take anappropriate decision and consider thepetitioner's case for appointment oncompassionate ground within a period oftwo months from the date of receipt ofcertified copy of the order of this Court.---------