The release of death-cum-retirement benefits raises a presumption of civil death, and a declaration by the Civil Court is not mandatory.

Rajan Roy, J.

1. Heard learned counsel for the parties.

2. The father of the petitioner is said to have disappeared more than seven years ago, therefore, he claims compassionate appointment presuming his civil death in terms of Section 107 and 108 of the Indian Evidence Act.

3. The question as to whether in such cases declaration is required by the Civil Court or not was considered by the Division Bench of this Court in the case of Ramakant Singh Vs. State of U.P. and others reported in 2005 (23) LCD 169 wherein it was held that even if the suit had not been filed, a 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.

4. Similar view has been taken by another Division Bench of this Court in the case of District Judge Vs. Saurabh Kumar, (Special Appeal No. 767 of 2012).

5. In the present case, father of the petitioner is said to have disappeared while in service on 06.10.2007. An F.I.R. is said to have been lodged on 11.10.2007.

6. According to the petitioner, a final report was submitted in respect thereto before a Court of competent jurisdiction. However, learned counsel for the petitioner is unable to inform the Court as to whether the same has been accepted or not. The mother of the petitioner is said to have filed a Regular Suit bearing No. 128 of 2015 seeking declaration regarding the civil death of her husband which was dismissed on the ground that under Section 108 of the Indian Evidence Act a presumption of civil death exists but the said provision does not require any declaration by the Court. A suit for declaration can only be filed under Section 34 of the Specific Relief Act. However, such declaration is to be accompanied by such further relief as may be necessary. As the Plaintiff did not seek any relief other than declaration, therefore, only for this reason the Suit was dismissed. The appeal against the said judgment was also dismissed.

7. Nevertheless the petitioner herein applied for compassionate appointment. The same has been rejected on the ground that unless the competent authority gives a declaration about the civil death of his father he can not be provided compassionate appointment.

8. Shri Amit Kumar Singh Bhadauriya, learned counsel for the opposite parties 2 and 3 relies upon a Circular of the Board dated 16.08.1996 which requires a declaration about the civil death by the competent authority.

9. A perusal of the said circular does not indicate any declaration is required under it from a Court. It only refers to the satisfaction of a competent authority which in this case appears to be the authority competent to provide compassionate appointment. In any case in view of the judgments cited herein above, the said circular can not come in the way if the conditions for applicability of Section 108 of the Indian Evidence Act are satisfied. Moreover, in the present case, it has been averred that the death-cum-retirement benefits consequent to the death of the father have been released in favour of the petitioner and other family members, therefore, this raises a presumption about the disappearance and civil death of the father having been accepted by the opposite parties themselves otherwise even this benefit would not have been extended.

10. In view of the aforesaid, the order impugned can not be sustained and the same is quashed. The competent authority which is empowered to provide compassionate appointment is directed to have a re-look at the matter in the light of the observations and the pronouncements referred herein above, after ascertaining the correct factual position as regards the acceptance or otherwise of the final report submitted as referred above, and take a decision regar