(C. M Application No. 18482 of 2016) Heard learned counsel for the parties.
The petitioner herein is widow of an erstwhile Constable in the 35th Battalion P.A.C., Lucknow. Her husband went missing on 11.04.2007. The Company Commander lodged a report on the same date. A final report was submitted in this regard by the police on 09.08.2009 in the Court of learned Chief Judicial Magistrate, Jhansi which was accepted by the Chief Judicial Magistrate, Jhansi on 20.02.2013. On 22.05.2011, the petitioner had submitted an application for her compassionate appointment on a Class-IV post. The petitioner was medically examined for such appointment and was found fit for the same as per report dated 22.05.2014. The petitioner vide letter dated 24.07.2014 was required to complete certain formalities regarding such appointment. It is asserted by the petitioner that she completed the said formalities, however, thereafter nothing happened.
On 01.07.2015 surprisingly a letter was issued to her to submit a certificate regarding the civil death of her husband from a Court of competent jurisdiction, thereafter, the matter has been pending. In the meantime, the petitioner had been paid the death-cum-retirement dues of her late husband as asserted by her in the writ petition.
The contention of the petitioner is that she is not being provided compassionate appointment though final report in respect of her missing husband has already been accepted and as more than seven years have passed, therefore, a presumption arises about his civil death as per Section 108 of the Indian Evidence Act which does not necessarily require any declaration by a Court, yet the opposite parties are not issuing appointment order.
The question as to whether in such cases declaration is required by the Civil Court or not was considered by the Division Bench of this Court in the case of Ramakant Singh Vs. State of U.P. and others reported in 2005 (23) LCD 169 wherein it was held that even if the suit had not been filed, a presumption could be drawn, if the conditions imperative for raising the presumption were satisfied. Once a presumption of civil death is raised on the satisfaction of the conditions given in Section 108 of the Indian Evidence Act, the burden of proof that he is alive, is then shifted to the person who affirms that the person reported missing was seen and is alive.
Similar view has been taken by another Division Bench of this Court in the case of District Judge Vs. Saurabh Kumar, (Special Appeal No. 767 of 2012).
In the present case, an F.I.R. was lodged on 11.04.2007 i.e. the date on which the petitioner's husband went missing. The Investigating Officer submitted a final report which has been duly accepted by the learned Chief Judicial Magistrate, Jhansi on 20.02.2013. More than seven years have lapsed. In these circumstances, there is a valid presumption about the civil death of the petitioner's husband under Section 108 of the Indian Evidence Act. A counter affidavit has been filed by the opposite parties in this case which does not contain any averment that the husband of the petitioner is alive or has been seen after 11.04.2007. The only objection is that the petitioner did not submit a declaration of a Civil Court about the civil death of her husband on account of which her appointment could not be made. This contention in the counter affidavit is not sustainable in view of the decision of this Court referred herein above.
In these circumstance, the stand of the opposite parties is against the settled legal position. No other objection having been raised by the opposite parties and considering the fact that the death-cum-retirement dues have also been paid to the petitioner which could only have been done if the petitioner's husband had died, goes to show that even the said benefits have been released by the opposite parties treating her husband to be missing for more than seven years as also accepting the presumption of civil death in this regard under Section 108 of the Indian Evidence Act otherwise the said benefits could not have been extended. No further declaration is required from a Court as the ingredients of Section 108 are satisfied.
In these circumstance, the opposite parties are directed to consider and appoint the petitioner on Class-IV post under the Dying-in-Harness Rules, 1974 keeping in mind the observations made herein above, within a period of six weeks from the date a certified copy of this order is submitted ignoring the letter dated 01.07.2015 contained in Annexure No. 7 to the writ petition or any other letter issued on similar lines. Consequences shall follow as per law.
With the aforesaid observations, the writ petition is disposed of.