Rakesh Tiwari, J.;-

Heard counsel for the parties and perused the record.

2. Constable no. 24478 is the husband of petitioner Smt. Usha Singh who was posted in 20th Vahini P.A.C. Azamgarh. He was suspended for abusing and committing misconduct with Sri Radhy Shyam and his wife. A charge sheet dated 10.04.1996 was issued to him for the above misconduct. In the enquiry, oral statement of the petitioner's husband was recorded on 6.06.1996 by the Enquiry Officer wherein the workman denied the allegations made against him by the complainant Sri Radhey Shyam etc. Thereafter, on the same day the petitioner's husband went missing from 20th Battalion P.S.C. Azamgarh. In paragraph 11of the writ petition, it has been averred that " after 06.06.1996 suddenly the petitioner's husband has eloped and not return back till today." Nothing appears to have been done by the petitioner for about a year.

3. Thereafter by letter dated 18.06.1997 petitioner informed the Head Quarter of the Provincial Armed Constable at Lucknow about disappearance of her husband. Pursuant thereto respondent no. 3 vide letter dated 03.07.1997 directed the commandant 20th Battalion, Vahini, P.A.C. Azamgarh to take appropriate action in the matter. Consequently a letter dated 09.07.1997 was issued from the office of Commandant 20th Vahini P.S.C. Azamgarh, respondent no. 4 to the petitioner for presenting herself for recording of her statement within 7 days about disappearance of her husband. A news item was also got published by the petitioner in daily newspapers Yashobhumi, Aaj and by the respondents in Dainik Jagran a newspaper publishes daily in fields.

4. It appears that in the meantime the services of the petitioner's husband were dismissed pursuant to enquiry proceedings having been initiated on the complaint of Sri Radhy Shyam and his wife vide order dated 14.03.1997. It further transpires from record that petitioner moved an application after more than 7 years to respondent no. 4 for granting her compassionate appointment on the ground of presumption of death of her husband in view of section 108 of the Indian Evidence Act 1872. No action was taken by the respondents on the application of the petitioner for compassionate appointment hence aggrieved the petitioner has moved this petition praying for a writ of mandamus directing the respondent no. 4 to appoint the petitioner on compassionate ground in his office and pay her salary of the post.

5. Learned counsel for the petitioner has relied upon the judgment of this Court in Ramakant Singh Vs. State of U.P. through Secretary (Home), Lucknow and others reported in 2011 (86 ) ALR 788 with regard to presumption of civil death under Section 108 of the Evidence Act. The division bench of this Court in that case came to a conclusion that learned Single Judge did not consider that even if the suit was not filed, the presumption could be drawn, if the conditions imperative for raising the presumption were satisfied. Once a presumption of civil death is raised on the satisfaction of the conditions given in Section 108 of the Indian Evidence Act, the burden of proof that he is alive, is then shifted to the person who affirms that the person reported missing was seen and is alive, therefore, burden of proof lies upon the person who alleges death and shifts upon him the person who claims to have seen the person alive who is said to be missing.

6. There is no dispute in the instant case at hand that the petitioner's husband had been missing since 06.06.1996 and had not been seen alive by anyone hence the ratio decided in the case of Ramakant Singh (supra) is applicable to the facts and circumstances of the case.

7. The second case relied upon by the petitioner is of Amit Sharma Vs. State of U.P. and others (2009) 3 U.P.L.B.E.C. 2816, in that case, the father of the petitioner has gone missing on 22.04.1991 and an application was moved by the wife for appointment of one of the members of the family on compassionate.

8. The contention o

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