Rajiv Sharma, J. - (1.) HEARD learned counsel for the petitioner and learned standing counsel. Learned counsel for the petitioner submits that petitioner's husband, namely, Sri Prakash Narain Shukla, is missing since April, 2004 and as such, she lodged an F.I.R. relating to Case Crime No. 204 of 2009, under Section 364, I.P.C., at police station Vikas Nagar. Lucknow. The Investigating Officer, after due investigation, has submitted final report, which was duly accepted by the competent Court vide order dated 6.7.2010. Thereafter, the petitioner has moved an application for payment of dues of her missing husband, salary, gratuity, insurance and pension etc. but the opposite parties did not pay any heed in the matter.
(2.) LEARNED counsel for the petitioner submits that the petitioner has also moved an application for her appointment on a suitable post according to the provisions of Uttar Pradesh Recruitment of Dependants of Government Servants (Dying in Harness) Rules. 1974 as more than seven years has passed. But, even then, no heed was paid and as such, the instant writ petition has been filed with a prayer to issue a writ in the nature of mandamus directing the opposite party No. 2 to pay all the pensionary/retiral/death benefits, admissible to the petitioner's husband on the presumption that he is no more as per Government Order dated 20.3.1987. Further, it has been prayed that opposite parties may be directed to give appointment under harness as per the qualification of the petitioner in view of 1974 Rules. At this stage, this Court pertinently points out that Section 107 of the Indian Evidence Act, 1872, refers to the burden of proving death of person known to have been alive within thirty years. As a matter of fact, the ingredients of Section 107 of the Indian Evidence Act. 1872 are as follows : When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. Section 108 of the Indian Evidence Act, 1872, speaks of burden of proving that person is alive who has not been heard of for seven years and the same enjoins thus : (Provided that when) the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.
(3.) TO put it precisely, Section 107 of the Indian Evidence Act, 1872. deals with presumption of continuance of life, whereas Section 108 of the Indian Evidence Act. 1872. deals with the presumption of death.;