JUDGMENT :

1. Heard learned counsel for the petitioner and Shri Prashastha Puri, Advocate holding brief of Shri Nadeem Murtaza, learned counsel appearing on behalf of respondent no.2.

2. The case had been heard at length on 05.07.2023. On the request of learned counsel for the petitioner, the matter had been fixed for today.

3. Shri Salik Ram Yadava, learned counsel for the petitioner has been heard at length.

4. The instant petition has been filed by the petitioner for the following reliefs:

"(1). Issue a writ, order or direction in the nature of certiorari quashing the order dated 10.07.2013 except the payment dues passed by the respondent no.2 annexed as annexure no.1 to the writ petition.

(2). Issue a writ, order of direction in the nature of mandamus commanding the respondents to appoint the petitioner under Dying in Harness Rule at the place of her husband and pay him all consequential benefits."

5. The facts of the case are as under:-

The petitioner a widow claiming compassionate appointment is aggrieved by the order dated 10.07.2013, copy of which is annexure no.1 to the writ petition whereby the claim of the petitioner for compassionate appointment has been rejected. The ground of the rejection is that the husband of the petitioner went missing on 20.07.2002 while working as Senior Clerk under the respondents. His date of retirement was 30.04.2006 while the declaration by the competent court declaring the petitioner's husband as dead has been issued on 23.02.2011 and thus, by the time the declaration has been given by the competent court, the husband of the petitioner already stood retired, consequently she is not entitled for compassionate appointment.

The order of rejection has been challenged by the petitioner by placing reliance on the judgment of this Court in the case of Zishan Khan vs. District Inspector of Schools and Others 2012 LawSuit(All) 1265 decided on 02.03.2012 whereby this Court has held in a similar matter that the presumption of death would arise prior to the date of retirement, when the department itself has paid the retiral dues of the missing employee and in this case too as the retiral dues have been paid as such the presumption of the death of petitioner's husband would relate back to the date of his disappearance i.e. 20.07.2002.

On the other hand, Shri Prashatha Puri, Advocate holding brief of Shri Nadeem Murtaza, learned counsel appearing for respondent no.2 has placed reliance on the judgments of the Apex Court in the cases of N. Jayalakshmi Ammal and Others v. R. Gopala Pathar and Another 1995 Supp (1) SCC 27 and Darshan Singh and Others V. Gujjar Singh and Others (2002) 2 SCC 62 and contends that the Apex Court has held that though Section 108 of the Evidence Act indicates the presumption of death where a person has not been heard for seven years but the exact time of death is not a matter of presumption but of evidence and the onus of proving that the death took place at any particular time within 7 years lies upon the person, who claims a right to the establishment of which that fact is essential.

Placing reliance on the aforesaid observations, the argument of Shri Puri is that in the facts of the instant case where the disappearance of the petitioner's husband took place in July, 2002 and he retired on 30.04.2006 while the declaration of the competent court is 23.02.2011 as such at the time of consideration of claim of compassionate appointment, the petitioner's husband already stood retired and there is no evidence to indicate the exact time of death of the petitioner's husband prior to his retirement date and consequently there would not be any occasion for consideration of the claim of the compassionate appointment inasmuch as compassionate appointment can only be claimed by the legal heirs of the deceased employee who dies in harness, but in this particular case there could not be any consideration of compassionate appointment after the retirement of the employee.

Placing reliance on the judg