JUDGMENT
Arun Madan, J.
1. Heard learned Counsel for the parties at length. The controversy, which has arisen for consideration of this Court in the instant writ petition is as to whether the legal heir/dependent of the deceased Government servant is entitled to the benefit of appointment in Government service in accordance with the Rajasthan Recruitment of Dependents of Government Servants (Dying while in Service) Rules 1975 (“for short the Rules, 1975”), particularly when the death of the deceased father of the petitioner is itself in question and the same has not been proved beyond any shadow of doubt on the record?
2. The facts giving rise to the filing of this writ petition briefly stated are that the petitioner’s father is alleged to have suffered from mental disorder and had in that state of mind had applied for obtaining leave to the school authorities viz. Senior Higher Secondary School, Dhani Boraj, where he was employed as a teacher vide (Annexure-1) on the record.
3. On perusal of the said letter dated 27.02.1980 it is revealed that the petitioner was appointed in the said school on 02.07.1956 as a teacher and his date of birth has been indicated as 15.10.1936 and the date when he left the school has been indicated in Column IV as 17.04.1967.
4. It has further been indicated in the said application that the petitioner’s father in the state of mental disorder during his service tenure had submitted the leave application to the school authorities on 17.04.1967 and thereafter he had neither returned back nor have reported for duty to the school authorities.
5. It has further been contended by the learned Counsel for the petitioner that only thereafter after waiting till presentation of this writ petition in this Court as on 08.01.90, the only logical presumption which would arise is as to whether the family members of the deceased are entitled to know about his whereabouts since more than 20 years have already lapsed during the intervening period and that the petitioner’s father is deemed to have expired since he has not been heard alive ever since then?
6. It has further been contended by the learned Counsel for the petitioner that the respondents never passed any order terminating the services of the petitioner’s father on any account and he continued in services of the school authorities where he last worked till his mysterious disappearance on 17.04.1967. It is also the case of the petitioner that after passing his Higher Secondary School Examination in Commerce in the year 1982, the petitioner submitted an application for appointment in the Primary & Secondary School Dhani-Boraj vide (Annexure-1) which is on the record of the earlier writ petition No. S.B. Civil Writ Petition No. 733/89 titled. Om Prakash Rao v. State of Rajasthan. This Court by an ex-parte order disposed of the said writ petition with a direction to the non-petitioners to examine the case of the petitioner and decide the same in accordance with the Rules of 1975 subject to eligibility of the petitioner being determined at the first instance for being considered for appointment as a Teacher in the Education Department of the State in accordance with Rules.
7. Failing to elicit any response from the respondents, the petitioner served a notice for demand of justice on 5.01.1989 vide (Annexure-4) and thereafter he filed the present writ petition in this Court on 8.1.1990. In the relief clause, the petitioner has sought the issuance of mandamus or any other appropriate writ, order or direction striking down the words “Om or after September 2, 1972” in Rule 2(e) of the Rules 1975 with a direction to the respondents to appoint the petitioner on the post of Teacher or L.D.C. or any other post in, the similar cadre and grade in a reasonable time. The petitioner has further sought the direction from this Court to pass an order directing the respondents to give the relief of family pension and gratuity in favour of the petitioner and his mother in accordance with Rules in force with regard to the said consequential benefits and in this regard the petitioner has placed reliance upon the date on which the petitioner’s father is deemed to have expired w.e.f. the year 1975, when the Rules came into force.
8. The respondents on being noticed by this Court have controverted the aforesaid contentions advanced by the learned Counsel for the petitioner In the present writ petition by contending inter-alia that the petitioner’s father remained absent from duty without any information and no certificate from mental hospital was submitted with regard to the alleged mental disorder, from which he suffered.
9. With regard to the date of death of the petitioner’s father, it has also been submitted by the respondents that no proof in the form of F.I.R. to the police or death certificate was produced in the office of the respondents nor the same has been filed alongwith this writ petition to determine either the cause of the date of death or any evidence to determine the sudden disappearance of the petitioner and the date w.e.f. which he has not be heard alive in accordance with the Rules.
10. The respondents have further contended in Para-4 to 8 of their reply that the petitioner himself did not submit any death certificate of his father Shri Khem Singh to prove that his father had died in the year 1975 and after the said year, no steps were taken by the petitioner himself in this regard. The respondents have further contended in their reply that the petitioner’s father did not apply for any leave nor his leave was sanctioned and he remained out of employment without due information to the School Authorities, which resulted in willful absence from duty and at the most, the case of the petitioner can. be considered for grant of family pension, while no relief can be given to the petitioner under the Rules of 1975.
11. I have heard learned Counsel for the parties at length and also perused their rival claims and contentions as well as the relevant documents on the record.
12. During the course of hearing, learned Counsel for the petitioner has placed reliance upon the provisions of Section 108 of the Indian Evidence Act, 1872 which provides as under
Burden of proving that person is alive who has not been heard of for seven years (Provided that when) the question is whether a man is alive or dead, and if is proved that he has not been heard of for seven yeas by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is (shifted to) the person who affirms it.
13. Learned Counsel for the petitioner has also placed reliance upon the judgments of this Court in the matters of Ram Lal v. Ram Niwas, reported in 1959 R.L.W. page 405 and Smt. Narbada and anr. v. Ram DayaL .
14. In the matter of Ram Lal v. Ram Niwas (Supra), the question, which had arisen for consideration of this Court in second appeal, which was preferred by the plaintiffs-Appellants in the context of the onus on a party to discharge the presumption as contemplated by the provisions of Sections 107 & 108 of the Indian Evidence Act 1872, it was held by this Court that:
Although there is a presumption of death at the expiration of a period of not less than seven years in duration, there is no presumption that the death occurred at any particular period at the end of seven years or at any other particular time during the period a person has not been heard of. The true principle of law is that where a party relies on a specific date of death of such a person where he has not been heard of for seven years of more, he must prove the specific date. Where a person, however, is not heard of for seven years and no specific date of death has been or can be proved, the earliest date to which death can be presumed can be the date on which the suit was filed and it cannot be given a further retrospective effect.
15. In the matter of Smt. Narbada and Anr. v. Ram Dayal, (Supra) similar question had arisen for determination of this Court and this Court while placing an interpretation on the said provisions and their applicability to the matter at issue held that the presumption about the death of the person can at the earliest be drawn when the dispute is brought to the Court and the presumption cannot be given a further retrospective effect. This Court has further held that it is so because the occasion for drawing a presumption under the provision arises when the dispute regarding the death of a person who has been unheard of for seven years is raised in a Court of law and it is only then that the question of burden of proof would arise under the Evidence Act. Section 108 obviously relates to the question of burden of proof in a matter before a Court of law.
16. Prima-facie, I am of the considered opinion that the writ petition is not maintainable before this Court and the petitioner is not entitled to any relief either with regard to his appointment as a dependent of the deceased under the Rules of 1975 for the reason that the onus of proving the death of the petitioner’s father was heavily on the petitioner and he has failed to discharge the same beyond any shadow of doubt. I am fortified in this regard from the provisions of Section 107 of the Indian Evidence Act, 1872, which provides as under:
When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
17. I am further of the opinion that Section 108 of the Indian Evidence Act, 1872 cannot be read in isolation of Section 107 of the said Act, since the material question, which has to be decided by this Court at the first instance is as to whether the petitioner has successfully discharged that onus cast upon him of proving the date of death of his father as stipulated under Section 107 and 108 of the Indian Evidence Act, 1872. In this case, neither any specific date relating to the death of the deceased has been established nor it has been proved that the deceased has not been heard of as living for the past seven years or more by any evidence on the record by the petitioner, and in absence of this, he is not entitled to claim any benefit for his appointment under the Rules of 1975. Admittedly there is no iota of evidence to suggest even remotely as to what steps were taken by the petitioner or by his mother or any of the family members of the petitioner for ascertaining the where-abouts of the petitioner’s father soon after he was reported to be missing from the School premises and not traceable w.e.f. 17.04.1967.
18. With regard to the bonafides of the petitioner, I would like to emphasize that admittedly the petitioner has failed to establish his bonafides by not even placing a copy of the F.I.R. on the record of this Court to establish that the petitioner’s father had left the school premises on the fateful day in mentally disturbed circumstances and could not been traced till the filing of this writ petition or even thereafter.
19. In this case the factors which are required to be established on the interpretation of the provisions of Sections 107 & 108 of the Evidence Act are very material to be considered and discussed since the burden of proof was heavily on the petitioner and having failed to discharge that onus beyond any shadow of doubt, this Court cannot arrive at a final conclusion with certainty that the petitioner’s father had died earlier when he had disappeared from the school premises where he last worked or in the year 1975, when the Rules came into force and the petitioner is thus not entitled to any relief in exercise of the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India. I am fortified in my observations from the judgment of Gauhati High Court in the matter of Saraswati Goswami and Anrs. v. General Manager N.F. Railways reported in A.I.R. 1976 page 14 Gauhati and in the matter of Surjeet Kaur v. Jhujhar Singh ).
20. In the matter of Sarswati Goswami and Ors. v. General Manager N.F. Railways (Supra), the question which had arisen for Consideration of the learned Division Bench of the Gauhati High Court was regarding claim petition for award of compensation presented by the dependents of the deceased under the Motor Vehicles Act, 1939.
21. The learned Division Bench of the High Court discussed the applicability of the provisions of Section 107 read with Section 108 of the Evidence Act, 1872 and it was held by the High Court that these two sections are based on the principle that once it is shown that a man was alive within a certain period, continuance of his being alive shall be presumed. The presumption is rebuttable.
22. Likewise in the mater of Surjit Kaur v. Jhujhar Singh (Supra), the Punjab & Haryana High Court held that the presumption under Section 108 of the Evidence Act that a person has not been heard of for seven years shall be presumped dead is restricted to the date of the filing of the proceeding and not with reference to any particular date. Proof of the allegation that death occurred on any particular day or earlier to the filing of the proceeding lies on the person alleging so.
23. Prima-facie, I am of the opinion that before the petitioner can be held to be entitled to claim any benefit of the provisions of the Act of 1975 he had to successfully establish on the record that he has discharged onus cast upon him in accordance with the provisions of Sections 107 and 108 of the Evidence Act, 1872. Unless and until the said onus is discharged, no presumption can be drawn that the petitioner’s father had already died either before the commencement of the Rules 1975 or he was already dead when the said Rules came into force since admittedly the presumption is rebuttable. In that event, the burden is again on the person who asserts that the man is dead to prove that he is dead and which he has failed to establish on the record.
24. With regard to the relief of family pension, gratuity or any other consequential benefits to which the deceased was entitled under the rules, the widow of the deceased and his dependents are entitled to claim the same after having filed a prior representation to the competent authority and only after having exhausted the alternative remedy available under the law, they may invoke the jurisdiction of this Court under Article 226 of the Constitution of India by way of separate writ petition, since no such relief can be granted in this petition.
25. In view of the above discussions, I am of the view that the petitioner is not entitled to succeed and the writ petition merits dismissal and is dismissed accordingly with no order as to costs.