ASOPA, J. - (1.) BY this writ petition, the petitioner is seeking an appropriate writ, order or direction to consider her case for grant of pension as also for grant of arrears of pension since her entitlement i. e. 4. 6. 1997 with interest at the rate of 18% p. a. The petitioner has also claimed other retrial benefits and appointment on the post of Peon under the Rajasthan Recruitment of Dependents of Government Servants (Dying while in service) Rules, 1996 (in short `the Rules of 1996' ).
(2.) THE facts, in brief, of the case, as per the petitioner are that her husband Radha Krishan Vaishnav was discharging his duties as LDC in Govt. Secondary School. Dumoli Khurd, Panchayat Samiti Buhana, Distt. Jhunjhunu from 10. 10. 1987. He continued to work with the respondents upto 4. 6. 1990 and from 4. 6. 1990 nothing has been heard about his whereabouts. A public notice was also issued by the Education Department in the newspaper asking the said Radha Krishn Vaishnav to present himself in the office but he did not turn up. THE petitioner also lodged an FIR on 21. 11. 2000 but during investigation also, husband of the petitioner could not be traced out. Since husband of the petitioner has not been heard for more than seven years, the presumption may be drawn under Section 108 of the Indian Evidence Act (in short the `act') that husband of the petitioner is presumed to be dead and therefore, the petitioner is entitled to pensionary benefits. Petitioner has also submitted the certificate of Sarpanch, Gram Panchayat Dumoli Khurd Via Singhana, Tehsil Buhana, Distt. Jhunjhunu that her husband is missing since long. Petitioner has also submitted certificate of the Headmaster to the above effect. In reply, the respondents have submitted that the petitioner is not entitled to pension as her husband has rendered service only for 32 months and there is no rule which makes her entitled to pension and retrial benefits for said period of service. The respondents have further stated that proceeding under Rule 86 R. S. R. were initiated against husband of the petitioner and that FIR has not been lodged, therefore, presumption u/s. 108 of the Act cannot be drawn. Along with the rejoinder, the petitioner has also submitted a copy of the FIR dated 21. 11. 2000 (Annx. 9 ). Submission of the counsel for the petitioner is that presumption can be safely drawn under Section 108 of the Act that husband of the petitioner is no more. He placed reliance on a judgment of this Court in Smt. Chaya Nandini vs. State and others (WLR 1996 Raj. 87) and Kaushlendra Singh Naruka vs. The State of Rajasthan and another (2000 (1) WLC (Raj.) 723) where in similar circumstances, it was presumed that the employee was no more alive and the wife is entitled to appointment under the Rules of 1975 and 1996. Counsel for the respondents has submitted that the FIR has been lodged after considerable delay and therefore, it cannot be presumed that husband of the petitioner is no more alive. He has also submitted that the petitioner is not entitled to pension.
(3.) HEARD counsel for the parties, perused record of the writ petition and further considered rival submissions of the counsel. It would be worthwhile to quote as under, paras 2 and 3 of the decision in Smt. Chaya Nandini and para 2 of the decision in Kaushlendra Singh Naruka (supra), for consideration of the submission that husband of the petitioner will be deemed to be dead for all legal purposes in view of presumption u/s. 108 of the Act: Paras 2 and 3 of the decision in Smt. Chaya Nandini (supra ). " 2. The petitioner's husband Vednath was in Govt. service. But in the year May 1984, he left home without informing any one and has not been seen by any one and has not returned home till date. According to her, a presumption would arise that petitioner's husband is dead because he has not been heard of by the petitioner and those who would have naturally heard of him, if he had been alive. According to the petitioner, therefore, a presumption under Section 108 of the Evidence Act would arise in the case and the respondents are bound to treat the petitioner's husband as dead and to provide to the petitioner all the benefits which a widow of a Govt. servant who dies on duty is entitled. It is contended by the learned counsel for the respondents that it is true that after the month of April, 1984, the petitioner has not drawn his salary and had not reported on duty. They are however not in the know whether the petitioner's husband is alive or dead. It is also contended by the learned counsel for the respondents that the petitioner's husband has not reported for duty even after issue of a public advertisement by the respondents. 3. Having heard the learned counsel, I am of the opinion that since there is a uncontroverted affidavit of the petitioner that she has not heard of her husband for the last seen years, a presumption would arise under Section 108 of Evidence Act that he is dead. The respondents, therefore, have to grant relief to the petitioner on the basis that her husband is dead and she is a widow of deceased Govt. servant. " Para 2 of the decision in Kaushlendra Singh Naruka (supra ). " 2. Suresh Singh Naruka, the father of the petitioner, who was working as LDC in the 5th Battalion RAC, disappeared on May 29, 1988 and since then he has not been traced out. There is nothing on record which can give credence that Shri Suresh Singh Naruka is alive. I am prima facie satisfied that on the basis of the documents annexed with the writ petition it has been established that Shri Suresh Singh Naruka has not been heard of seven years and a presumption in view of Section 108 of the Indian Evidence Act can be raised that he is dead for all legal purposes. " As regards grant of pension to the petitioner, no rule has been pointed out by the counsel for the petitioner which makes her entitled to pension for 32 months' services rendered by her husband. The minimum service required for pension is ten years but the said period has also not been completed by the husband of the petitioner. Therefore, prayer for grant of pension is rejected. ;