PANWAR, J. - (1.) BY the instant writ petition under Article 226 of the Constitution of India, the petitioners seek quashing of order Annex. 1 dated 10. 7. 1990 terminating the services of Govt. employee Narain Singh, husband of petitioner No. 1 and father of petitioner No. 2; to release family pension, death-cum- gratuity benefits and all the service benefits of Narain Singh who said to have been disappeared while in service and nothing has been heard of him for more than seven years and to give compassionate appointment to the petitioner No. 2 assuming that his father Narain Singh Govt. servant died while in service.
(2.) I have heard learned counsel for the parties. The facts and circumstances giving rise to the instant writ petition are that the husband of petitioner No. 1 and father of petitioner No. 2, Narain Singh Panwar was an employee of the State Govt. serving on the post of Class IV employee as Peon in the Office of Sub Divisional Officer, Phalodi, district Jodhpur. It is averred that after having served about 29 years of regular service, Narain Singh suddenly disappeared from the office on 24. 6. 1986 while on duty and nothing has been heard of him till date and therefore, he may be presumed to be dead in view of the provisions of Section 108 of the Evidence Act. The petitioner No. 1 is the legally wedded wife of the Govt. servant Narain Singh and petitioner No. 2 is the son born out of the wedlock and therefore, Govt. servant Narain Singh is survived by his wife petitioner No. 1 and four sons including the petitioner No. 2. It is also averred that after missing of the Govt. servant Narain Singh, the petitioners who could not obtain education and being poor having no piece of land are put to harness. The petitioner No. 1 has been suffering from ailment and is bedridden and there being no means even to get her treated. It is also averred that the non-petitioners have not paid any amount after missing of the Govt. servant Narain Singh even after expiry of almost 18 years from the date of disappearance of the Govt. servant. It was averred that initially Narain Singh was appointed as Waterman in the Veterinary Hospital, Jodhpur on 18. 3. 1957, thereafter he was transferred to Govt. Middle School, Pachpadra vide order dated 29. 7. 1957, he joined the school on 3. 8. 1957 and thereafter transferred to Jodhpur Treasury Office vide order dated 31. 1. 1959, thereafter he was transferred from Treasury Office, Jodhpur to the office of Tehsildar, Phalodi on 23. 12. 1978 and he served in the office of Tehsildar/ Sub Divisional Officer, Phalodi till 24. 6. 1986. Since 24. 6. 1986, the Govt. servant Narain Singh has been missing while he was on duty and nothing has been heard of him for more than 18 years and therefore, it be presumed that after expiry of seven years from the date when he was last seen, he is dead in view of provisions of Section 108 of the Evidence Act. It is also contended that an FIR was lodged with regard to the missing of Narain Singh while on duty which was investigated by the CID (CB), however, he could not be traced till date and the non-petitioner terminated his service by order Annex. 1 on the ground that Narain Singh Govt. employee is missing and remained willful absent from duty. A reply to the writ petition has been filed by the non- petitioners and contended that the writ petition suffers from delay and latches as also that the Govt. servant Narain Singh remained willful absent from duty and therefore, after holding domestic inquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short `the Rules of 1958' hereinafter) he was removed from service. I have given my thoughtful consideration to the rival submissions made by the counsel for the parties. Learned counsel for the petitioners has relied on two decisions of this Court in Smt. Phooli Devi vs. State of Rajasthan RLW 2002 (4) RAJ. 2338 and Kaushlendra Singh Naruka vs. The State of Rajasthan and Anr. 2000 (1) WLC (Raj.) 723.
(3.) IN Smt. Phooli Devi vs. State of Rajasthan (supra) the husband of the petitioner Nanag Ram Meena who was working as Chokidar vanished while on duty w. e. f. 3. 4. 1986 after putting in about 15 years of service. A notice was issued in the news papers "daily Navjyoti" on 11. 10. 1987 asking him to present himself in the office. The said employee was untraceable since 1986 and has not been heard or traced ever since. After about 10 years of such dis-appearance, his wife petitioner No. 1 therein applied to the department that she be given appointment in place of her husband on compassionate ground under the Recruitment to the Government Servants (Dying While in Service) Rules and also claimed family pension, arrears of salary of the husband etc. as also an employment to her son who became major on 24. 7. 2000. This Court held that the action of the respondents cannot be appreciated to terminate the services of Nanag Ram in 2001 when the petitioner had started giving demand notices for employment of her son when he had attained the age of majority. Such termination of a person who is presumed to be dead after 7 years from April 1986 has no meaning what-so-ever. No charge-sheet can be issued to a dead person, nor his services can be terminated. Any order passed of termination of services of said Nanag Ram Meena had no relevancy in the present circumstances as the date to be taken for awarding the retiral benefits is April 1986. In Kaushlendra Singh Naruka vs. The State of Rajasthan and Anr. (supra) the father of the petitioner therein was not heard of for last seven years and deemed to be dead for all legal purposes and a presumption in view of Section 108 of the Evidence Act can be raised that he is dead for all legal purposes. On these premises, this Court held that father of the petitioner therein will be deemed to have died and as he has died while in service of the respondent, he will be deemed to have died in harness. Under these circumstances, this Court directed the respondents to consider the case of the petitioner therein for compassionate appointment and give to him such appointment in accordance with law. In Smt. Indira Devi vs. State of Rajasthan and Anr. in S. B. Civil Writ Petition No. 2462/02 decided on 05. 10. 2006, a similar controversy came to be considered by this Court. In that case, the husband of the petitioner therein was appointed with the respondents on the post of Lower Division Clerk (LDC) on 04. 9. 1979 temporarily, however, he was made permanent on 19. 6. 1981. Thereafter he has faced certain transfers from District Collector, Pali to District Collector, Jodhpur. While in service, on 6. 2. 1988, the Govt. servant husband of the petitioner therein left his office for home but never reached home and nothing was heard about him and his whereabouts were unknown. The respondents therein dismissed the services of the Govt. employee vide order dated 04. 3. 1991 on completion of seven years from the date of missing of the Govt. servant. A report was also lodged with the police. However, the Govt. servant could not be traced. This Court quashed the order dated 4. 3. 1991 dismissing the Govt. servant from service and held that on expiry of period of seven years from 6. 2. 1988, a presumption should arise with regard to the death of the petitioner's husband with effect from 6. 2. 1995. The petitioner therein was held entitled to receive family pension w. e. f. 6. 2. 1989 after expiry of period of one year from the date her husband was last heard of in accordance with the proviso to Rule 268b of R. S. R. ;