The findings of the Civil Court under Section 108 of the Evidence Act were binding on the respondents, and the Government Resolutions dated 5th July, 1991 and 7th October, 1993 were held to be applicable and binding on the respondents.

JUDGMENT :

R.D. Dhanuka, J.

1. Rule. Learned A.G.P. waives service for respondent nos.1 and 4. Learned Counsel Mr. Suryawanshi waives service for respondent nos.2 and 3.

2. Rule is made returnable forthwith.

3. By this petition filed under Article 226 of the Constitution of India, the petitioners seek a writ of mandamus or order, or direction to respondent nos.2 and 3 to forward proposal for grant of family pension and other pensionary benefits to the petitioners, to the office of respondent no.4 in respect of service benefits of missing Nivarti Sopanrao Bhande, the then Child Development Project Officer, Kaij, Taluka Kaij, District Beed and for a direction to respondent no.4 to grant family pension and other pensionary benefits to the petitioners and for other reliefs.

4. The husband of petitioner no.1 and father of respondent nos.2 to 7 was appointed as Senior Assistant in Zilla Parishad, Osmanabad in the year 1980 and was promoted from time to time. Lastly, he was working as Child Development Project Officer with Kaij Panchayat Samiti under respondent no.2.

5. It is the case of the petitioners that since September, 2003, after availing medical leave, Nivarti Bhande, husband of petitioner no.1 had been missing and his whereabouts were not known to the petitioners, in spite of making his search at various places. On 3rd December, 2003, petitioner no.1 filed a complaint with Shivaji Nagar Police Station, Latur. The concerned Police Station did not take any action on the said complaint filed by petitioner no.1.

6. Petitioners, thereafter, instituted a suit bearing Regular Civil Suit No.18 of 2011, for declaration that Nivarti Bhande was missing and was not heard and thus he be declared as dead under Section 108 of the Indian Evidence Act, before the Court of learned Civil Judge Senior Division, Latur.

7. On 7th January, 2015, learned 2nd Joint Civil Judge Senior Division, Latur passed a decree in favour of the petitioners and declared that in capacity of legal heirs of missing Nivarti, petitioners herein are entitled to succeed, receive and utilize the suit properties.

8. Petitioners, thereafter, applied for grant of family pension to respondent no.2 by letter dated 9th March, 2015. On 22nd May, 2015, Deputy Chief Executive Officer, Zilla Parishad, Beed, directed respondent no.3 to submit the proposal for pensionary benefits in proper format for further action.

9. It is the case of the petitioners that no action, however, is taken by respondent no.3 on the said letter dated 22nd May, 2015. The petitioners, therefore, have filed this petition.

10. Learned Counsel appearing on behalf of the petitioners invited our attention to various correspondence annexed to the writ petition and also the findings rendered by the learned 2nd Joint Civil Judge Senior Division, Latur in Regular Civil Suit No.18 of 2011. He submits that the Chief Executive Officer, Zilla Parishad, Latur and Chief Executive Officer, Zilla Parishad, Beed as well as the Treasury Officer, Latur were parties to the said suit.

11. Learned Counsel for the petitioners also invited our attention to the Government Resolutions dated 5th July, 1991 and 7th October, 1993 in support of the submission that since the husband of petitioner no.1 was unheard for more than seven years, he was presumed to be dead in view of provisions of Section 108 of the Evidence Act and thus, the petitioner no,1 being widow is entitled to the family pension.

12. Learned Counsel for the Zilla Parishad, on the other hand, invited our attention to the letter dated 29th September, 2003, annexed at page 39 of the petition and would submit that the husband of petitioner no.1 had applied for medical leave. By letters dated 1.1.2004 and 23.2.2004, he again applied for extension of medical leave. Learned Counsel for the Zilla Parishad submits that the Zilla Parishad had issued a show cause notice against husband of petitioner no.1 on 15th March, 2004 and after following the requisite procedure and after conducting the i