Dismissed

Rekha Devi v. the State of Jharkhand through Its Chief Secretary

Jharkhand HC12 Mar 2024WPC/904/2023

Case brief

AI extract

What is this about?

Widow of a Dumka civil court sweeper missing since 2004 sought quashing of his dismissal order and compassionate appointment after a civil-death decree. The court held the dismissal valid since no death could be presumed to predate it, applied rules prevailing on the date of civil-death declaration, and dismissed the writ petition.

What the court decided

AI extract

Rekha Devi Vs the State of Jharkhand… — Pension and Retirement Benefits | Jharkhand HC (2024)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P. (S) No. 904 of 2023

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Rekha Devi, aged about 42 years, wife of Ramesh Mehtar, Resident of Village-Bandajori, P.O. Dumka, P.S. Dumka, District-Dumka, Jharkhand … … Petitioner

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Versus

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The State of Jharkhand through its Chief Secretary, Project Bhawan, P.O. and P.S. Dhurwa, District-Ranchi

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The Registrar General, Jharkhand High Court, P.O. and P.S. Doranda, District-Ranchi

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The Principal District and Sessions Judge, Dumka, P.O. and P.S. Dumka, District-Dumka

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The Dumka Civil Court through its Registrar, P.O. and P.S. Dumka, District-Dumka … … Respondents

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… … Respondents

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Onkar Nath Tiwary, Advocate For the Respondents : Ms. Pinky Tiwary, A.C. to A.G. ---

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07 /12.03.2024 Heard the learned counsel for the parties

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2. This writ petition has been filed for the following reliefs:-

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(a) For issuance of an appropriate writ, order or direction to the concerned respondent by quashing the order no. 74/2010 dated 19/05/2010 passed by the concerned Respondent no. 3 against the petitioner husband who was admittedly missing since 16/04/2004.

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(b) For issuance of an appropriate writ, order or direction to the concerned respondent no. 3 by quashing the order no. 35/2023 dated 01.02.2023 issued under the pen and signature of Respondent no. 3 which is illegal arbitrary and non-sustainable in the eyes of law.

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(c) For issuance of an appropriate writ, order or direction to the concerned respondent no. 3 to give entire service benefits (death-cum-retiral benefit) of the petitioner’s husband including family pension, leave encashment, gratuity, provident fund, insurance etc. along with the statutory interest over the said amount.

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(d) For issuance of an appropriate writ, order or direction to the concerned respondent to take all required steps enabling this petitioner to be appointed in accordingly on compassionate ground, her husband late Ramesh Mehtar who has been declared as civil death by the competent civil court on 23.02.2020 (Annexure-4).”

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Arguments of the petitioner.

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3. Learned counsel for the petitioner while assailing the impugned order as contained in memo no. 301 dated 01.02.2023 being Order no. 35 of 2023 has submitted that the claim of compassionate appointment has been rejected inter alia on the ground that the petitioner does not possess the minimum educational qualification for appointment in class-IV post in as much as the petitioner is a non-matric and for that purpose a reference has been made to paragraph 9 (c) of letter no. 10167 dated 01.12.2015 of Department of Personal, Administrative Reforms and Rajbhasha, Government of Jharkhand.

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4. Learned counsel has submitted that the reference to aforesaid Letter no. 01.12.2015 is not in accordance with law in view of the fact that the husband of the petitioner was missing since 16.04.2004 and his civil death was declared by virtue of judgment passed in Original Title Suit No. 54 of 2018 dated 01.04.2020 and the date of death has been declared to be w.e.f. 16.04.2004 and therefore the law as it prevailed on 16.04.2004 should be taken into consideration for considering the claim of compassionate appointment to the petitioner.

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5. He has further submitted that as per the then applicable scheme for compassionate appointment there was no such requirement of minimum qualification of matric and therefore the order refusing compassionate appointment to the petitioner calls for interference. 6. He has further submitted that application for compassionate appointment was made within time in as much as the date of declaration of civil death was vide judgment passed in Title Suit on 01.04.2020 and the application was filed before the Civil Court, Dumka on 07.02.2020.

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7. The learned counsel has also referred to order dated 16.12.2022 passed in W.P. (S) No. 3581 of 2022 and has submitted that writ petition was disposed of with a direction upon the Principal District and Sessions Judge, Dumka to consider the claim of the petitioner for grant of compassionate appointment and also for release of the post retiral cum death benefits of the husband of the petitioner in favour of the legal heirs and also with a direction that the prayer for compassionate appointment will be considered within the said period and reasoned order was to be passed. He submits that pursuant to the order passed by this court in W.P. (S) No. 3581 of 2022 all the death cum retiral benefits has been paid to the petitioner but the claim for compassionate has been declined by the impugned order dated 01.02.2023.

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8. Learned counsel has referred to the following judgments: -

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(i) (2022) 10 SCC 696 (Delhi Jal Board vs. Nirmala Devi)

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(ii) (2015) 7 SCC 412 (Canara Bank and Another vs. M. Mahesh Kumar)

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(iii) 2015 SCC Online Jhar. 3369 (Smt. Parden Oraon vs. Central Coal Fields Limited and others)

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(iv) 2018 SCC Online Jhar. 847 (Smt. Parden Oraon vs. Central Coal Fields Limited and others)

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(v) 2022 SCC Online 684 (Malaya Nanda Sethy vs. State of Orissa and Others

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(vi) 2018 SCC Online Jhar. 753 (Praveen Kumar Singh vs. The State of Jharkhand).

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Arguments of the respondents.

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9. Learned counsel appearing on behalf of the respondents on the other hand has opposed the prayer and has submitted that the writ petition is fit to be dismissed in as much as the husband of the petitioner was dismissed from service vide order No. 74 dated 19.05.2010 due to absence. The petitioner would be governed by the provisions of the Circular dated 01.12.2015 and is not entitled for compassionate appointment.

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10. Learned counsel has relied upon the judgment passed by the Hon’ble Supreme Court reported in (2021)16 SCC 384 (Central Coalfields Limited vs. Parden Oraon) and has submitted that the purpose for grant of compassionate appointment is for providing immediate succor to the family of the deceased employee and the petitioner would not be entitled for compassionate appointment after such a long time. She has also submitted that the order for grant of compassionate appointment in judgment dated 16.8.2018 by the learned writ Court reported in (2018) SCC Online Jhar. 847 was the subject matter of consideration before the Hon’ble Division Bench in LPA No. 718 of 2018 and the LPA was dismissed. The order passed in LPA No. 718 of 2018 has been set aside by the Hon’ble Supreme Court in the judgment reported in ( 2021) 16 SCC 384 (supra) .

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11. Leaned counsel has also submitted that the appointment in the present case is governed by Jharkhand State Civil Courts Officers and Staffs (Recruitment Promotion Transfer and Other Service Condition) 2018 and in terms of paragraph 9 (c) of the aforesaid letter issued by the Government of Jharkhand, the educational qualification and eligibility of the applicant for the applied post shall be in accordance with the provisions contained in appointment rules and the same cannot be relaxed in terms of paragraph 12(iv) of the said letter. 12. She has submitted that two grounds have been assigned for refusal of compassionate appointment- (a) the petitioner is nonmatriculate; (b) her husband who was ex-sweeper was dismissed from service vide order no. 74/10 dated 19.05.2010.

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Rejoinder argument of the petitioner

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13. In response to the aforesaid argument, the learned counsel for the petitioner has submitted that once the deceased employee has been declared as civil death since 16.04.2004 by virtue of decree dated 23.03.2020, the order of dismissal passed by the respondents dated 19.05.2010 is a nullity in the eyes of law. He has also submitted that while granting the post death benefits, the said order of dismissal dated 19.05.2010 has been ignored and all the post death benefits

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including the family pension has been granted to the petitioner except compassionate appointment.

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14. The judgements relied upon are discussed as under: -

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I. In the judgment passed by the Hon’ble Supreme Court reported in (2022) 10 SCC 696 (supra), the application for compassionate appointment was rejected by referring to the date on which the applicant’s claim was considered by virtue of which the applicant was not having required qualification. In the said case, the Hon’ble Supreme Court has taken a view in the facts of the said case that once the application for compassionate appointment was made, the qualification which the applicant possesses on the date of the application is to be considered.

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II. In the judgment passed by the Hon’ble Supreme Court reported in (2015) 7 SCC 412 (supra) , the main question which fell for consideration was whether the Scheme passed in 2005 providing for ex-gratia payment or the Scheme then in vogue in 1993 providing for compassionate appointment is applicable to the respondent who was claiming compassionate appointment. The father of the respondent had expired on 10.10.1998 and claim for compassionate appointment as per the scheme of the year 1993 was rejected on 03.06.1999. The Hon’ble Supreme Court held that the cause of action to be considered for compassionate appointment arose when the scheme dated 08.05.1993 was in force and ex-gratia amount cannot be claimed as per subsequent scheme of 2005.

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III. In the judgment reported in 2018 SCC OnLine Jhar. 753 (supra), it has been held that there is no difference between civil death and natural death for the purposes of grant of compassionate appointment.

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IV. In the judgment reported in 2022 SCC OnLine SC 684 (supra) , the Hon’ble Supreme Court was considering the point as to whether the scheme/rules in force on the date of death of the government servant would apply or the scheme/rules in force on the date of consideration of the application for compassionate

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appointment would be applicable. The Hon’ble Supreme Court observed that there are divergent view and conflict of opinion of different decisions of the Hon’ble Supreme Court however keeping the question aside and for the reasons stated in the judgment, the Hon’ble Supreme Court was of the opinion that in the peculiar facts and circumstances of the case, the appellant would be entitled for appointment on compassionate ground as per 1990 Rules which were applicable at the time when the deceased employee died and the appellant before the Hon’ble Supreme Court had made an application for appointment on the death of his father i.e. in the year 2010. The Hon’ble Supreme Court while deciding the case observed that there was no fault or any delay or negligence on the part of the appellant at all and the appellant was fulfilling all conditions for compassionate appointment under 1990 Rules and for no reason his application was kept pending and no order was passed on one ground or the other. The Hon’ble Supreme Court was of the view that the departmental authorities cannot be given a premium to the delay of inaction on their part and the applicant should not suffer on such count. The Hon’ble Supreme also observed that if the object and purpose for appointment on compassionate ground as envisaged under the relevant policies or the rules have to be achieved then it is just and necessary that such applications are considered well in time and not in a tardy manner.

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V. In the judgment reported in (2021) 16 SCC 384 (supra) , it has been held that the compassionate employment cannot be granted after a lapse of reasonable period as the consideration of such employment is not a vested right which can be exercised at any time in the future. As the object of compassionate appointment is to enable the family to get over the financial crisis that it faces at the time of the death of the sole breadwinner, compassionate appointment cannot be claimed or offered after a significant lapse of time and after the crisis is over. In the said case, the employee went missing in the year 2002 and it has also been held that there

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is no bar in the National Coal Wage Agreement for appointment of son of an employee who had suffered civil death and therefore the claim for compassionate appointment could not have been denied.

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VI. In the judgment passed by this Court reported in 2018 SCC OnLine Jhar. 847 (supra) , it was a case of civil death and in the suit the employer was also impleaded as a party-defendant and the employer had contested the suit which was decreed and it was pleaded that prior to civil death the husband of the writ petitioner was terminated from service and the termination of the husband was quashed by order of this Court vide order dated 03.08.2015. In the said case also, it was held that there is no exclusion clause in National Coal Wage Agreement under which the dependent of a missing employee who had met with civil death can be denied compassionate appointment.

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VII. In the judgment reported in 2015 SCC OnLine Jhar. 3369 , it was also a case of civil death and it was held that there is no difference between civil death and natural death. In the said case, the termination of the employee on account of unauthorized absence was set-aside and it was held that the application for compassionate appointment could be made within one year from the date of declaration of civil death by civil court.

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Findings of this court.

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15. The petitioner’s husband was working in the civil court in the district of Dumka as grade IV employee (sweeper) w.e.f. 01.12.1993 and was missing since 16.04.2004 regarding which a Sanha was lodged on 28.05.2004. On 19.05.2010 the petitioner’s husband was dismissed from service.

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16. It is the case of the petitioner that she made several applications for her claim of post death benefits but no relief was granted and ultimately the petitioner made an application before the learned Registrar General of this court vide letter dated 02.09.2015 and was informed vide letter dated 02.09.2015 that the respondent no. 3 is the appropriate authority for appointment of Class-III or Class-IV employees in Dumka District. The concerned respondent denied post

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death benefit as well as compassionate appointment in absence of a valid document with respect to civil death of her husband.

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17. Consequently, the petitioner filed Original Title Suit No. 54 of 2018 before the Civil Court, at Dumka seeking a declaration of civil death from the date of his missing i.e. 16.04.2004 which was decreed on 01.04.2020 and it has been declared that husband of the petitioner is civil dead person from the date of his missing i.e. 16.04.2004.

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18. From the perusal of the decree annexed along with the writ petition it is apparent that neither the state of Jharkhand nor the concerned authority of civil court Dumka were made party in the suit although the need for seeking declaration of civil death arose only when the petitioner was denied the post death benefit of her husband by the present respondents.

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19. The suit for declaration of civil death was filed after 14 years from the date the husband of the petitioner went missing. The date on which the husband of the petitioner went missing is 16.04.2004; seven years expired on 15.03.2011 and prior to that the husband of the petitioner was dismissed from service on 19.05.2010; suit seeking declaration of civil death was filed after 14 years in 2018 which was decreed on 23.03.2020.

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20. However, the petitioner had filed a writ petition before this Court being W.P. (S) No. 3581 of 2022 claiming death cum retiral benefits and compassionate appointment which was disposed of enabling the petitioner to file representation. The records also indicate that the petitioner never challenged the order of dismissal of her husband dated 19.05.2010 at any stage even at the stage of filing of the writ petition being W.P. (S) No. 3581 of 2022 where the petitioner was claiming death cum retiral benefits. The order of dismissal dated 19.05.2010 has been challenged for the first time in the present writ petition along with challenge to the order dated 01.02.2023 refusing to grant compassionate appointment which has been refused on the ground that the husband of the petitioner was already dismissed from service as back as on 19.05.2010 and that the petitioner was not qualified being non matriculate.

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21. The 1^st reason to deny compassionate appointment is that the husband of the petitioner was already dismissed from service on 19.05.2010

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22. The order of dismissal has been challenged for the first time in this writ proceedings.

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23. The argument of the petitioner that the order of dismissal dated 19.05.2010 with regard to the husband of the petitioner has become a nullity by virtue of the decree dated 23^rd March 2020 as the husband of the petitioner has been declared civil dead since he went missing i.e 16.04.2004 is not acceptable. This court is of the considered view that such a declaration regarding date of death taken to be the same date as that of the date on which the husband of the petitioner went missing solely on presumption under section 108 of the Evidence Act is contrary to the ratio of judgement passed by the Hon’ble Supreme Court in the case of LIC of India vs. Anuradha reported in (2004) 10 SCC 131 . It has, interalia, been held that-

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a. the presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is an issue and though it will be presumed that the person is dead but there is no presumption as to the date or time of death and there is no presumption as to the facts and circumstances under which the person may have died.

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b. an occasion for raising the presumption would arise only when the question is raised in a court tribunal or before an authority who is called upon to decide as to whether a person is alive or dead and so long as the dispute is not raised before any forum and in any legal proceedings the occasion for raising the presumption does not arise.

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c. if an issue may arise as to the date or time of death the same shall have to be determined on evidence-direct or circumstantial and not by assumption or presumption. The burden of proof would lay on the person who makes

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assertion of death having taken place at a given date or time in order to succeed in his claim. Rarely it may be permissible to proceed on premise that the death had occurred on any given date before which the period of seven years' absence was shown to have elapsed.

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24. Paragraph 12 to 16 of the aforesaid judgment are quoted as under: -

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“ 12. Neither Section 108 of the Evidence Act nor logic, reason or sense permit a presumption or assumption being drawn or made that the person not heard of for seven years was dead on the date of his disappearance or soon after the date and time on which he was last seen. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years’ absence and being unheard of having elapsed before that time. The presumption stands unrebutted for failure of the contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before that so as to break the period of seven years counted backwards from the date on which the question arose for determination. At what point of time the person was dead is not a matter of presumption but of evidence, factual or circumstantial, and the onus of proving that the death had taken place at any given point of time or date since the disappearance or within the period of seven years lies on the person who stakes the claim, the establishment of which will depend on proof of the date or time of death.

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13. A presumption assists a party in discharging the burden of proof by taking advantage of presumption arising in his favour dispensing with the need of adducing evidence which may or may not be available. Phipson and Elliott have observed in Manual of the Law of Evidence (11th Edn., at p. 77) that although there is almost invariably a logical connection between basic fact and presumed fact, in the case of most presumptions it is by no means intellectually compelling. In our opinion, a presumption of fact or law, which has gained recognition in statute or by successive judicial pronouncements spread over the years, cannot be stretched beyond the limits permitted by the statute or beyond the contemplation spelled out from the logic, reason and sense prevailing with the judges, having written opinions valued as precedents, so as to draw such other inferences as are not contemplated.

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14. On the basis of the abovesaid authorities, we unhesitatingly arrive at a conclusion which we sum up in the following words: the law as to presumption of death remains the same whether in the common law of England or in the statutory provisions contained in Sections 107 and 108 of the Indian Evidence Act, 1872. In the scheme of the Evidence Act, though Sections 107 and 108 are drafted as two sections, in effect, Section 108 is an exception to the rule enacted in Section 107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question arises, is

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presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years, the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a court, tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings, the occasion for raising the presumption does not arise.

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15. If an issue may arise as to the date or time of death the same shall have to be determined on evidence, direct or circumstantial, and not by assumption or presumption. The burden of proof would lie on the person who makes assertion of death having taken place at a given date or time in order to succeed in his claim. Rarely may it be permissible to proceed on the premise that the death had occurred on any given date before which the period of seven years’ absence was shown to have elapsed.

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16. We cannot, therefore, countenance the view taken by the High Court in either of the two appeals that on the expiry of seven years by the time the issue came to be raised in the Consumer Forum or civil court and evidence was adduced that the person was not heard of for a period of seven years by the wife and/or family members of the person then not only could the death be presumed but it could also be assumed that the presumed death had synchronised with the date when he was reported to be missing or that the date and time of death could be correlated to the point of time coinciding with the commencement of calculation of seven years backwards from the date of initiation of legal proceedings. In order to successfully maintain the claim for benefit under the insurance policies, it is necessary for the policy to have been kept alive by punctual payment of premiums until the claim was made. The appellant LIC was justified in turning down the claims by pleading that the policies had lapsed and all that could be paid to the claimants was the paid-up value of the policies.”

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25. There is no material in the present case to have a date of death of the husband of the petitioner prior to expiry of 7 years from the date

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he went missing on 16.04.2004. Admittedly, on the date of dismissal on 19.05.2010, 7 years were yet to expire.

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26. Further, neither the State of Jharkhand nor the civil court Dumka were made party in the said Original Title Suit No. 54 of 2018 and only private persons were the defendants although the reason for filing such a suit was to get post death benefits from the respondents. Even the state of Jharkhand through the officer in charge of the police station, before whom it was claimed that Sanha was lodged, was never made party in the Original Title Suit No. 54 of 2018 . This Court is also of the considered view that merely because the respondents have passed an order for grant of post death benefits to the petitioner, the same by itself is not sufficient to hold that the order of dismissal of the husband of the petitioner dated 19.05.2010 is a nullity in the eyes of law.

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27. In view of the aforesaid facts and circumstances this court is not inclined to set aside the order of dismissal of the husband of the petitioner dated 19.05.2010 merely on the ground that he was declared as civil dead since 16.04.2004 vide decree dated 23.03.2020. Consequently the 1^st reason in the impugned order refusing compassionate appointment on the ground that the husband of the petitioner was already dismissed on 19.05.2010 does not call for any interference.

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28. The 2^nd reason to deny compassionate appointment is that the petitioner is a non-matric.

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29. The learned counsel for the petitioner has insisted that the petitioner should be guided by law of appointment/compassionate appointment as it prevailed on 16.04.2004 which is the date of civil death of the missing employee and therefore the reliance on the letter dated 01.12.2015 and recruitment rules of the year 2018 are misplaced.

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30. Upon perusal of the recruitment rules which prevailed as on 16.04.2004 it is apparent that no such minimum qualification was prescribed for appointment in class-IV post. The relevant rule was Bihar Civil Court Staff (Class-III and Class-IV) Rules 1998 and

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further the qualification provided under Rule 10 was that the candidate must be literate and must have working knowledge of both English and Hindi language including reading and writing in the said language. So far as the then rule of compassionate appointment is concerned, as per clause 10, the application for compassionate appointment was to be filed within a period of five years from the date of death. This Court is of the considered view that in the case of compassionate appointment arising out of civil death, crystalizes only when a decree is passed regarding civil death and therefore cause of action for filing an application for compassionate appointment crystalizes only when the decree is passed. In such circumstances the argument of the petitioner that the claim for compassionate appointment is to be considered with respect to the date on which the employee went missing is not acceptable. This court is of the considered view that in case of civil death, the law as it is applicable on the date of declaration of civil death i.e. the date of decree would be applicable law for the purposes of consideration of the claim for compassionate appointment. If the date is taken of the year 2004, then the claim for compassionate appointment would itself fail as no application could have been filed within the time prescribed under the circular. The person seeking compassionate appointment cannot pick and choose the clauses being relied upon. 31. In the judgement passed by the Hon’ble Supreme Court reported in (2015) 7 SCC 412 (Canara Bank and Another vs. M. Mahesh Kumar) it has been held that compassionate appointment is to be granted as per the scheme which was in vogue at the time of death of the employee. This Court also finds that in the judgment passed by the Hon’ble Supreme court reported in (2022) 10 SCC 696 it has been held that the claim of compassionate appointment would be applicable with regard to the law which prevailed on the date of filing the application when the delay in taking decision in the matter of compassionate appointment was attributable to the employer, the person claiming compassionate appointment has to be governed by the

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rules applicable on the date of death of the ex-employee and the employer cannot have any premium on their delay and negligence. 32. In the judgment reported in (2021) 16 SCC 384 it was observed that although the reason for refusal to grant compassionate appointment was not justified but the compassionate appointment was refused on the ground that the application for compassionate appointment of the son was filed by the respondent in the year 2013 which was more than 10 years after the respondent's husband had gone missing. As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the respondent's son was held to be not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing. Paragraph 8 and 9 of the aforesaid judgment is quoted as under: -

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“8. The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis which arises due to the death of the sole breadwinner. The mere death of an employee in harness does not entitle his family to such source of livelihood. The authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that the job is offered to the eligible member of the family [ Umesh Kumar Nagpal v. State of Haryana , (1994) 4 SCC 138: 1994 SCC (L&S) 930]. It was further asseverated in the said judgment that compassionate employment cannot be granted after a lapse of reasonable period as the consideration of such employment is not a vested right which can be exercised at any time in the future. It was further held that the object of compassionate appointment is to enable the family to get over the financial crisis that it faces at the time of the death of sole breadwinner, compassionate appointment cannot be claimed or offered after a significant lapse of time and after the crisis is over.

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9. We are in agreement with the High Court that the reasons given by the employer for denying compassionate appointment to the respondent's son are not justified. There is no bar in the National Coal Wage Agreement for appointment of the son of an employee who has suffered

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civil death. In addition, merely because the respondent is working, her son cannot be denied compassionate appointment as per the relevant clauses of the National Coal Wage Agreement. However, the respondent's husband is missing since 2002. Two sons of the respondent who are the dependants of her husband as per the records, are also shown as dependants of the respondent. It cannot be said that there was any financial crisis created immediately after the respondent's husband went missing in view of the employment of the respondent. Though the reasons given by the employer to deny the relief sought by the respondent are not sustainable, we are convinced that the respondent's son cannot be given compassionate appointment at this point of time. The application for compassionate appointment of the son was filed by the respondent in the year 2013 which is more than 10 years after the respondent's husband had gone missing. As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the respondent's son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing.”

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33. In the present case, the claim for compassionate appointment could have been only filed after declaration of civil death and not prior to that. Accordingly, the law which was prevalent as on the date of declaration of civil death would be applicable. The petitioner being non matriculate and not eligible for grant of compassionate appointment in terms of the applicable rules and the circular governing the compassionate appointment, the impugned order refusing to give compassionate appointment to the petitioner does not call for any interference.

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34. Further, in view of the judgments which has been cited by the learned counsel for the petitioner and in view of the provisions of law placed before this court, this court finds that the law makes no distinction between a civil death and other deaths, but at the same time much time has elapsed from the date when the ex-employee went missing and the suit seeking declaration of civil death was filed in the year 2018 after expiry of 14 years from the date of missing although the earliest cause of action to file such a suit by referring to section

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108 of the Evidence Act arose immediately upon expiry of 7 years from the date of missing (16.04.2004). In the present case, delay in seeking declaration of civil death is attributable to the petitioner and accordingly, the petitioner cannot claim that the application for compassionate appointment should be governed by the scheme as was prevalent at the time her husband went missing on 16.04.2004 when there was no requirement of matriculation for grant of compassionate appointment. In a case claiming compassionate appointment arising out of civil death, it is not open to the claimant to seek the required declaration at any time as per their sweet and upon such declaration of civil death claim compassionate appointment.

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35. Accordingly, the 2^nd reason to deny compassionate appointment that the petitioner is a non-matric and disqualified as per circular applicable on the date of application/ consideration of application for compassionate appointment also does not call for any interference.

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36. Moreover, the petitioner is not entitled for compassionate appointment as the crisis due to the fact that the husband of the petitioner went missing way back on 16.04.2004 has lost its rigours.

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37. As a cumulative effect of the aforesaid findings, this court finds no merit in this writ petition.

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38. Accordingly, this writ petition is dismissed.

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39. However, it is observed that the benefits which has already been extended to the petitioner on account of declaration of civil death of her husband will not be disturbed and this judgement is confined to the claim of compassionate appointment considering the arguments advanced on behalf of the parties.

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40. Pending interlocutory application, if any, is closed.

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(Anubha Rawat Choudhary, J.)

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Binit

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Rekha Devi v. the State of Jharkhand through Its Chief Secretary

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Rekha Devi v. the State of Jharkhand through Its Chief Secretary

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