JUDGMENT Sunil Ambwani, J.
1. Heard learned counsel for the petitioner and learned Standing Counsel.
2. In pursuance of directions issued by this Court on 22.3.2001 in writ petition No. 10418 of 2001, the Deputy Inspector General of Police (Establishment), U.P. has rejected petitioner's application for compassionate appointment under U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974( In short, The Rules of 1974), on the ground that the Government Order dated 9.12.1998, excludes the compassionate appointments to the dependants of those government servants who have gone missing.
3. In the present case, the petitioner's father was serving as Constable in Civil Police. While posted at Allahabad, he went missing on 14.11.1990, and it is alleged by this family that he has not been heard of, since then. The department has sanctioned payment of gratuity and family pension to his dependants.
4. The petitioner has filed supplementary affidavit stating that his father was born on 4.3.1947, and would have ordinarily retired in the year 2007. At present the petitioner is 27 years of age.
5. The Rules of 1974 are applicable where a Government servant dies in harness. In law 'civil death' is a recognized concept. Section 108 of the Indian Evidence Act, 1872 provides that in a case where a person has not been heard of by those who would naturally have heard of him, if he had been alive, for more than seven years, a presumption arises in favour of his death, unless the person who alleges that the person is alive, establishes the fact. This section is an exception to Section 107, which provides that when it is shown that a man was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
6. In the present case there is no denial in the counter affidavit about the sanction of family pension. The department as such hs accepted the fact that petitioners father went missing on 14.11.1990, and was not heard of since then for seven years or even thereafter.
7. The Government Order dated 9.12.1998 may apply to a fct situation where seven years have not expired from the date the Government Servant is reported to be missing, but as soon as seven years expires and the person or persons who would ordinarily have heard of the person, allege that such person has not been heard of, a presumption of death arises and the social welfare measures under the Rules of 1974 springs into action.
8. The seven years period provided under Section 108 of the Indian Evidence Act, 1872, may have been relevant more than a century ago to presume civil death. Now the means of communication and modes of travel have become much faster. There is as such a need to amend Section 108 of the Indian Evidence Act, 1872 and reduce the period of seven years. However, this is to be considered by the Legislature and not by the Court.
9. Having regard to the facts and circumstances of the case, this writ petition is allowed. It is held that the Government Order dated 9.12.1998 operates only for seven years from the date a Government servant goes missing, after which the deeming provision of Section 108 comes into play for presuming civil death, and then unless it is established that the person is alive, the consequences of civil death, follow to be observed.
10. The respondents have not contradicted the averments made in the writ petition and as such the petitioners father would be deemed to have died a civil death on 13.11.1997 when this presumption arose.
11. The writ petition is allowed. The impugned order dated 25.7.2001 is set aside. The Deputy Inspector General of Police (Establishment) is directed to decide the representation, in accordance with law treating that the petitioner's father to have died, a civil death as expeditiously as possible and preferably within eight weeks. Since the petitioner had applied for compassionate appointment within three years of the presumption of civil death, the application shall not be treated to be filed beyond five years and shall be decided by the Deputy Inspector General of Police (Establishment), U.P.