- (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. The sole argument raised by the learned Counsel for the petitioner, in the present writ petition is that indisputably the father of the petitioner was in service on 28th of August, 1990, since when he is missing. A reference has been made to a circular dated August 16, 1996 issued by the Mukhya Karmik Adhikari wherein, according to the learned Counsel for the petitioner it has been provided that in case of such employees whose whereabouts are not known and the presumption of their civil death should be drawn, the payment of pension and other pensionary benefits and the balance amount has been provided for. In the said circular it has been clarified that in the case of such employees whose whereabouts are not known, the compassionate appointment shall not be made within a period of one year. The facility of compassionate appointment shall be admissible as per Section 108 of Indian Evidence Act when the competent authority has treated such employee as dead. In contra, the learned Counsel for the Department supported the impugned order and submitted that the father of the petitioner has been found missing only two days prior to the date of his superannuation. The petitioner cannot claim compassionate appointment as only two days were left and the object of giving compassionate appointment is to give support to such families to tide over the sudden crisis. I have given careful consideration to the respective submissions of the learned Counsel for the parties. Before considering the nature of the compassionate appointment, it is desirable to notice the law dealing with when presumption about the death of a person from the fact that a person has not be heard of for 7 years to be drawn. The Privy Council in Lal Chand Marwari v. Mahant Ram Ruo Girl and Anr. , AIR 1926 Priw Council 9, held that there is no presumption, under law as to when a person has died, if such person is not heard of for 7 years. There is only one presumption, and that is the person was no longer alive. There is no presumption at all as to when such person has died like any fact, is a matter to proof. Their Lordships quoted with approval law of England and held that there is no difference both in India and in England on this issue. Their Lordships have quoted following passage : "if a person has not been heard of for 7 years, there is a presumption of law that he is dead. But at what time within what period he died is not a matter of presumption but of evidence, and the onus of proving that the death took place at any particular time within 7 years lies upon the person who claims a right to the establishment of which that fact is essential.
(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 ). Thus from the above discussion it boils down to this that the burden to prove the actual date of death, lies upon the person who propounds the death of such person. Under Sections 107 and 108 of the Evidence Act only this much presumption can be drawn that such a person is no longer alive but there is no presumption about the actual date of death of such person. In view of this legal proposition, the argument of the learned Counsel for the petitioner that the father of the petitioner has died on 29th of August 1990 while in service cannot be accepted in absence of any proof about his actual death on that date. Reliance has been placed upon a judgment of Civil Judge in O. S. suit No. 588 of 1997 Smt. Murti Devi v. Munendra Singh Chauhan and Anr. , decided on 17-1-1998. The Civil Judge has held only this much therein, that a presumption may be drawn about the death of Mahendra Pal Singh as there is no evidence that he is alive, under Section 108 of the Indian Evidence Act. Even in the said judgment no finding has been recorded about the actual date of death of Shri Mahendra Pal Singh Chauhan.;