# Amardeep Kashyap v. State of U.P. & Ors

- **Citation:** (2024) 10 ILRA 205
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-24
- **Case number:** Special Appeal Defective No. 436 of 2024
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amardeep-kashyap-v-state-of-u-p-ors-51120
- **Pages:** 10

## Headnote

Law
-
Compassionate
Appointment - Uttar Pradesh Dying-inHarness Rules, 1974 - Indian Evidence
Act, 1872 - Section 107 - Burden of
proving death of person known to have
been alive within thirty years, Section 108
- Burden of proving that a person is alive
who has not been heard of for seven years
-Presumption of Civil Death after 7 years
of disappearance - A declaration of civil
death by the civil court under Section 108
of the Indian Evidence Act, 1872 would
not lead to a presumption with regard to
date and time of death unless proven with
evidence - Compassionate appointment
can only be claimed if the death occurred
during service .(Para - 12,19,20,24)

Appellant's father, employed as a peon, went
missing on 25.06.2012 - formal complaint was
lodged on 27.06.2012 - Despite efforts, he could
not be traced - reached age of superannuation
on 30.11.2013 - Appellant filed suit for
declaration of civil death under Section 108 -
civil court declared his father's civil death on
22.04.2022 - but no specific date mentioned -
Subsequently appellant sought compassionate
appointment - which was rejected by authorities
- hence present appeal.
(Para 2-7,12)

HELD: - Appellant's request for compassionate
appointment was rightly rejected since his
father, presumed dead only after a seven-year
period and a civil court declaration, had already
206 INDIAN LAW REPORTS ALLAHABAD SERIES
reached the age of superannuation by then.
Thus, the compassionate grounds could not be
invoked post-superannuation. (Para 24-26)

Special Appeal dismissed. (E-7)
List of Cases cited:

## Text

10 All. Amardeep Kashyap Vs. State of U.P. & Ors.
205
Lucknow; 2003 NTN (Vol.22)- 341,
wherein interpreting the provisions of
Section 22 of the U.P. Value Added Tax
Act, 2008, which is pari materia with
provision of Section 31 of the U.P. Value
Added Tax Act, 2008, which provides for
rectification, this Court has held that
wherein an appeal is decided ex parte, it
shall be open for moving an application for
rectification
of
such
a
situation.
Accordingly, adequate reasons are given
for the defendant for non appearance and
judgement is rendered ex parte, but recall
of order, exercise of rectification has been
provided under Section 31 of the U.P.
Value Added Tax Act, 2008.

14. In light of the above, the
impugned
order
dated
18.12.2023,
whereby the appellate authority has
proceeded to decide the appeal preferred
by the petitioner in his absence, is held to
be illegal and arbitrary and accordingly set
aside and the matter is remitted back to the
appellate authority to decide the matter
afresh after affording an opportunity of
hearing to the parties and considering the
fact that much time due to pendency of the
aforesaid proceedings, has elapsed, the
appellate authority is directed to expedite
the appeal and decide the same within
three months from the date of production
of a certified copy of this order, in
accordance with law.

15. With the aforesaid observations,
the revision is allowed.

16. The petitioner undertakes to
cooperate in the proceedings before the
appellate authority.
----------
(2024) 10 ILRA 205
APPELLATEJURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.10.2024
BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Special Appeal Defective No. 436 of 2024

Amardeep Kashyap ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Om Prakash Mani Tripathi

Counsel for the Respondents:
C.S.C.

(A)
Service
Law
-
Compassionate
Appointment - Uttar Pradesh Dying-inHarness Rules, 1974 - Indian Evidence
Act, 1872 - Section 107 - Burden of
proving death of person known to have
been alive within thirty years, Section 108
- Burden of proving that a person is alive
who has not been heard of for seven years
-Presumption of Civil Death after 7 years
of disappearance - A declaration of civil
death by the civil court under Section 108
of the Indian Evidence Act, 1872 would
not lead to a presumption with regard to
date and time of death unless proven with
evidence - Compassionate appointment
can only be claimed if the death occurred
during service .(Para - 12,19,20,24)

Appellant's father, employed as a peon, went
missing on 25.06.2012 - formal complaint was
lodged on 27.06.2012 - Despite efforts, he could
not be traced - reached age of superannuation
on 30.11.2013 - Appellant filed suit for
declaration of civil death under Section 108 -
civil court declared his father's civil death on
22.04.2022 - but no specific date mentioned -
Subsequently appellant sought compassionate
appointment - which was rejected by authorities
- hence present appeal.
(Para 2-7,12)

HELD: - Appellant's request for compassionate
appointment was rightly rejected since his
father, presumed dead only after a seven-year
period and a civil court declaration, had already
206 INDIAN LAW REPORTS ALLAHABAD SERIES
reached the age of superannuation by then.
Thus, the compassionate grounds could not be
invoked post-superannuation. (Para 24-26)

Special Appeal dismissed. (E-7)
List of Cases cited:
1. L.I.C. of India Vs Anuradha, (2004) 10 SCC.
131
2. Ram Singh Vs Board of Revenue, U.P.
Allahabad, AIR 1964 All. 310
3. Smt. Narbada & anr. Vs Ram Dayal, A.I.R.
1968 Rajasthan 48
4. Subhash Ramchandra Wadekar Vs U.O.I., AIR
1993 Bombay 64
5. Sou. Swati W/o Abhay Deshmukh and ... Vs
Shri. Abhay S/O. Purushottam Deshmukh,
Nagpur Bench of
6. Bombay High Court in Second Appeal No.18
of 2016
7. U.O.I. represented by its Secy. & ors. Vs
Polimetla Mary Sarojini & Anr.) Division Bench
Judgment of the A.P. High Court in Writ Petition
No.34859/201

(Delivered by Hon'ble Om Prakash Shukla, J.)

1. Heard Sri Om Prakash Mani
Tripathi, learned counsel for the appellant
and Sri Gopal Kumar Srivastava, learned
Standing Counsel for State-respondents.

2. The present Special Appeal
stems out of an order dated 05.04.2024 and
dated
12.07.2024
('Impugned
orders')
passed by learned Single Judge of this
Court in Writ A No.2731 of 2024
(Amardeep Kashyap Vs. State of U.P. and
Others)
and
Civil
Misc.
Review
Application Defective No.117 of 2024
respectively. Apparently, vide the said
impugned order, the learned Single Judge
did not find any illegality in the order dated
03.02.2023
passed
by
the
Deputy
Commissioner, Industries, Gonda wherein
the
claim
of
the
appellant
for
compassionate appointment was rejected
by the Deputy Commissioner.

3. The factual matrix of the case lies
in a narrow compass. The appellant's father,
Sri Ghanshyam Kashyap was working as a
peon/Anuchar at Jila Udyog Kendra, Gonda,
Uttar
Pradesh
and
went
missing
on
25.06.2012, which although was reported by
his family on the same day, however a formal
missing complaint came to be filed on
27.06.2012. Apparently, despite extensive
efforts to trace Sri Ghanshyam Kashyap they
were futile. In the intervening period, since
record reveal that the date of birth of the
appellant's father Sri Ghanshyam was
08.11.1953, he attained the age of 60 years on
30.11.2013. No retirement benefits were
extended by the respondent-Zila Udyog
Kendra, Gonda in the absence of clarity of
status of Sri Ghanshyam as confirmed by
them vide letter dated 19.12.2019 wherein the
representation of the mother of the appellant
was rejected for providing of any financial
help or compassionate appointment before
the completion of seven years from the date
of missing.

4. Subsequently, after a lapse of
period of seven years, the family of the
appellant filed a suit on 16.10.2019,
seeking a declaration of Sri Ghanshyam's
civil death, which came to be allowed by
the learned Civil Judge, Senior Division,
Gonda vide a judgment dated 22.04.2022
and during the pendency of the said suit,
the mother of the appellant, Mrs. Urmila
Devi also died on 07.05.2021.

5. It is claimed by the appellant that
10 All. Amardeep Kashyap Vs. State of U.P. & Ors.
207
after declaration of civil death by the court,
he received an appointment letter dated
28.05.2022 for the position of chowkidar
from the Deputy Commissioner, Zila
Udyog and Protsahan Kendra, Gonda.
However, when he went to join on the said
position, he was not allowed to join for
extraneous reasons and even his original
appointment letter was taken away by the
said respondent and was directed to
produce death certificate of his father. The
appellant thereafter obtained a death
certificate issued by the Registrar of Birth
and Death, which mentioned the date of
death of the appellant's father to be
16.10.2019.

6. Thus, being aggrieved, the
appellant filed Writ A No.6138 of 2022 for
payment of dues and emoluments of late
Sri Ghanshyam to his family as well as for
seeking compassionate appointment for the
appellant. However, the said Writ was
disposed of vide an order dated 20.09.2022,
directing the appellant to file a detailed
representation raising all his grievance and
correspondingly
the
respondent
was
directed to dispose the said representation
within a time bound manner by a reasoned
and speaking order.

7.

However,
the
said
representation was rejected on 03.02.2023
by the respondent authority, which came to
be challenged by the appellant vide Writ A
No.2731 of 2024 seeking quashing/setting
aside of the order dated 03.02.2023 and
praying for appointment to the appellant on
the compassionate ground under the Dying
in Harness Rules, 1974. The learned Single
Judge after hearing the appellant, while
dismissing the Writ Petition vide order
dated 05.04.2024 came to observe as herein
below:-

 "5. ............ It is the petitioner's
case that his father had gone missing on
30.06.2012. As per the provisions of law,
he shall be presumed to be dead seven
years after the date on which he went
missing, which comes in the year 2019. The
petitioner's father would have attained the
age of superannuation on 30.11.2013.
Therefore, from the material available on
record, it cannot be said that the
petitioner's father had died in harness and,
therefore, the petitioner cannot claim
compassionate appointment in place of his
father.

 6. The learned counsel for the
petitioner has submitted that the petitioner
had been issued an appointment letter on
the post of Chawkidar but the same was
cancelled subsequently. However, the order
of cancellation has not been assailed by
way of this writ petition and, therefore, the
issuance
of
appointment
letter
and
cancellation thereof would not confer any
rights on the petitioner or any ground to
claim compassionate appointment, unless
the petitioner is otherwise entitled to be
appointed on compassionate basis. "

8. Apparently, after the dismissal
of the aforesaid Writ, the appellant
preferred another Writ A No.3831 of 2024
before the learned Single Judge of this
Court. However, the said Writ Petition was
dismissed as withdrawn and liberty was
granted to the appellant to file Review of
the order dated 05.04.2024 passed in Writ
A No.2731 of 2024. Thus, the appellant
preferred Civil Misc. Review Application
No.117 of 2024, which also came to be
dismissed vide order dated 12.07.2024. It is
this order dated 12.07.2024 passed in the
Review Application as well as the order
dated 05.04.2024 passed in the Writ A
208 INDIAN LAW REPORTS ALLAHABAD SERIES
No.2731 of 2024, which have been sought
to be challenged in the present appeal.

9. The learned counsel for the
appellant
argued
that
the
Review
Application was wrongly dismissed by the
learned Single Judge, inasmuch as the same
was filed on the ground of discovery of
new and important material and evidence
of oral cancellation of his compassionate
appointment. He further contended that the
Review Application was filed after liberty
having been sought by the appellant in Writ
A No.3831 of 2024 on 16.05.2024, wherein
he had sought implementation of his
appointment
order
dated
28.05.2022.
According to him, the said appointment
was on compassionate ground as his father
had gone missing since 25.06.2012 and he
has not been allowed to join for extraneous
consideration. Learned counsel for the
appellant further submitted that there is a
dichotomy in the stand of the respondent as
on the one hand they have rejected the
representation
for
compassionate
appointment vide order dated 03.01.2023
and 03.02.2023 whereas on the other hand
he has been issued a compassionate
appointment vide order dated 28.05.2022.
The learned counsel relied on the judgment
of this Court in Civil Misc. Writ Petition
No.17395 of 2011 to contend that there is
no distinction between the civil death and
natural death for the purpose of grant of
compassionate
appointment.
Learned
counsel has admitted the fact that the date
of
death
as
16.10.2019
instead
of
25.06.2012 has been given by the Nagar
Palika and not in the declaratory suit filed
by the appellant seeking declaration of the
civil death of his father.

10. On the contrary, learned
counsel for the respondent has supported
the impugned order. According to the
learned counsel, the date of death of the
missing employee has to be construed on
the date of declaration of the civil death by
the competent court. According to him, in
the present case, the father of the appellant
although went missing on 25.06.2012, but
his civil death came to be declared by the
civil court only on 22.04.2022 on a suit
filed by the appellant on 16.10.2019 and by
which time the appellant's father would had
already attained the age of superannuation
on 30.11.2013. Thus, according to him the
appellant
was
not
entitled
for
compassionate appointment and there was
no question of issuance of any appointment
letter dated 28.05.2022 or its alleged oral
cancellation.

11. Having heard learned counsel
for the parties, this Court is of the view that
the moot question to be determined by this
Court is as to whether a person who is
unheard of for a period of seven years, is to
be presumed to have died on the date he went
missing or soon thereafter or at the close/end
of period of seven years. Thus, which date
would be presumed as the date of death of Sri
Ghanshyam Kashyap, father of the appellant?
The answer to the said question would hold a
key to his compassionate appointment as
admittedly the appellant can be granted
appointment only in case his father died in
harness or died during his service period.

12. Admittedly, father of the
appellant went missing on 25.06.2012 and he
would have superannuated on 30.11.2013
based on the date of his birth referred earlier.
Thus, in case it is found that his father died in
harness during the period from 25.06.2012 to
30.11.2013 he can lay his claim to
compassionate appointment.

13. While this moot question has
drawn attention of several Courts on
10 All. Amardeep Kashyap Vs. State of U.P. & Ors.
209
various occasions, the Courts have tried to
resolve the aforesaid controversy by
considering the extent and scope of Section
107 and 108 and other provisions of Indian
Evidence Act, 1872, as such, before dealing
with the case laws on the subject, it would
be apt to examine the provisions of Section
107 and 108 of the Indian Evidence Act,
1872, which have material bearing with the
question in controversy involved as under:-

 "107. Burden of proving death of
person known to have been alive within
thirty years.

 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.

 108. Burden of proving that a
person is alive who has not been heard of
for seven years.

 [Provided
that
when]
[Substituted by Act 18 of 1872, Section 9,
for "When".] the question is whether a man
is alive or dead, and it is proved that he has
not been heard of for seven years 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] [Substituted
by Act 18 of 1872, Section 9, for "on".] the
person who affirms it."

14. Thus, Section 107 is about the
burden of proving death of a person known
to have been alive within thirty years,
whereas Section 108 is about the burden of
proving that the person has not been heard
of for seven years.

15 . The Hon'ble Supreme Court in
the case of L.I.C. of India Vs. Anuradha;
(2004) 10 SCC. 131, observed in paragraph
12 to 15 as quoted herein below:-

 "12. Neither Section 108 of
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 un-rebutted 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.

 13. A presumption assists a party
in discharging the burden of proof by
taking advantage or 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' (Eleventh Edition at p.77) that
although there is almost invariably a
logical connection between basic fact and
presumed fact, in the case of most
210 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

 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
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 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
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 who's 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.

 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
lay 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 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.

16. On same lines is the judgment
of this Court in Ram Singh Vs. Board of
Revenue, U.P. Allahabad, AIR 1964 All.
310, while dealing with the content and
scope of provision of Section 108 of Indian
Evidence Act and it was held that all that
one can presume under Section 108 is that
the person concerned is dead but one can
not fix the time of person's death under the
10 All. Amardeep Kashyap Vs. State of U.P. & Ors.
211
provision of said section. Section 108
however, is not exhaustive on the question
of presumption as regards the death of a
person.
The
Court
may
in
the
circumstances of each case make suitable
presumption even regarding the time of
death of person concerned. In the said case
Hon'ble Mr. Justice V.G. Oak, as he then
was, observed as under :

 "Section 108, however, is not
exhaustive on the question of presumption
as regards death of a person. The Court
may make a suitable presumption in
accordance with the circumstances of each
case :-

 (1) Suppose a man sails in a ship,
and the ship sinks. Thereafter the man is
never
seen
alive.
Under
such
circumstances, it is reasonable to assume
that the person died in the ship wreck.

 (2) When a person goes for
pilgrimage he or she ordinarily returns
home in six months or in a year. In the
present case, Smt. Rukmini left for
Gangasagar Yatra 17 years ago. Since then
she has not been heard of. It is reasonable
to assume that, she died in some accident
or of some disease during the journey or at
Gangasagar."

17. Likewise is the judgment in
Smt. Narbada and another Vs. Ram
Dayal, A.I.R. 1968 Rajasthan 48, wherein
it was held that presumption about the
death of a person who is unheard of for
seven years under Section 108 of Evidence
Act can earliest be drawn when the dispute
in which the question as to whether a
person is alive or dead is raised and is
brought to the court. The presumption
cannot be given a further retrospective
effect for the reason that the occasion for
drawing a presumption under the provision
arises only 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 relates to the
question of burden of proof in a matter
before a Court of law. Further while
dealing with the question that as to when
the death of a person who has not been
heard of for seven years or more than seven
years should be deemed to have taken place
in para 14 of the aforesaid decision the
Rajasthan High Court observed as under:

 "(14). This question as to when
the death of the person who has not been
heard of for seven years or more than
seven years should be deemed to have
taken place came up for consideration of
this Court in ILR (1959) 9 Raj 276 and the
learned Judge, after considering certain
authorities, including the Privy Council
case, came to the conclusion 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 the end of seven
years or at any other particular time during
the period a person has not been heard of.
Where a party relies on a specific date of
death of a person, who has not been heard
of for seven years or more, he must prove
the specific date. It was also laid down that
where a person is not heard of for seven
years or more and no specific date of death
has been or can be presumed, the earliest
date on which it can be presumed that such
a person was not alive shall be the date on
which the suit was filed and it cannot be
given a further retrospective effect.

18. In Subhash Ramchandra
Wadekar Vs. Union of India, AIR 1993
212 INDIAN LAW REPORTS ALLAHABAD SERIES
Bombay 64, the question arose for
consideration as to what was the presumed
date of death of Ramchandra Arjun
Wadekar who had left the home on 9th
January 1984 and was not heard of by the
petitioner and other relative since then.
While dealing with the said question, the
learned High Court in para 12 made a very
important observation, which is worth
noting, as under :-

 12. If Section 108 of Evidence
Act, 1872 were to be interpreted literally, it
would have to be held that law presumes
death of a person unheard of for seven
years but is silent in respect of date of
presumed death. It is therefore, a possible
view that the date of presumed death must
be proved by the party concerned as a fact
by leading reliable evidence. This aspect of
the matter is not very clear and one comes
across conflicting observations in several
decided cases on the subject. In light of
authorities cited by the learned Counsel on
both sides referred to in later part of this
Order, I have reached the following
conclusions;-

 (1) Ordinarily a person unheard
of for the statutory period shall be
presumed to be dead on expiry of seven
years and not earlier.

 (2) Section 108 of Indian
Evidence Act, 1872 is not exhaustive. It
is permissible for the Court to raise a
suitable presumption regarding date of
presumed death depending upon the
attendant
circumstances
and
other
reliable material on record. In other
words, no rule of universal applicability
can be spelt out regarding presumed
date of death. In my opinion, proposition
No.
1
must
operate
subject
to
proposition No. 2.
19. Thus, it is clear as broad
daylight from the aforesaid judgments that
a declaration of civil death by the civil
court under Section 108 of the Indian
Evidence Act, 1872 would not lead to a
presumption with regard to date and time of
death. Essentially, the said declaration is
based on a statutory presumption, which
comes into play only after the lapse of
seven years and not prior. 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 even on
expiring of six years and 364 days or at any
time short of it. Further, the essential
criteria or rather the condition precedent for
the raising of the said presumption is expiry
of seven years and most importantly, the
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 the
person is alive or dead, by placing reliance
on the said presumption.

20. However, it is also clear that
the presumption of Section 108 is not the
only mechanism for declaration of death.
As held by the Hon'ble Supreme Court,
suppose an individual does not wish to rely
on the presumption as provided under
Section 108 of the Indian Evidence Act,
1872, he is well within his/her right to
prove by cogent evidence that the date and
time of death is prior to seven years. The
Hon'ble Court has clearly held that; if an
issue arises as to 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, prior to the lapse of seven years.
10 All. Amardeep Kashyap Vs. State of U.P. & Ors.
213
21. From a perusal of records, it is
apparent that no doubt the appellant had
filed a suit seeking declaration of civil
death of his father, however, it is seen that
the appellant did not seek declaration as to
any specific date of death of his father and
no evidence was adduced for proving a
specific date or time of death. The order
dated 22.04.2022 of the learned Civil Court
is purely based on the presumption of death
as provided under Section 108 of the Indian
Evidence Act, 1872. In fact, there is no
specific date of death mentioned, what to
talk of any date prior to the order of
declaration, which could have given an
impetus to the claim of compassionate
appointment to the appellant. Further, the
learned Civil Court has also observed that
the order would become automatically
inoperative/ineffective, in case the father of
appellant, Ghanshyam Kashyap is found to
be alive, which also as a corollary meant
that the learned Civil Court did not specify
any date and time of death as it was not
proved based on any evidence with any
amount of certainty that the father of the
appellant died on a specific date and time.

22. Further, in view of the above,
this Court is also not impressed by the
submission of learned counsel for the
appellant that the death certificate of the
appellant's father issued by the Registrar of
Birth and Death, mentioned the date of
death of the appellant's father to be
16.10.2019 merely because the suit was
filed on 16.10.2019 and that date should be
construed as 27.06.2012, the date on which
the missing complaint was filed.

23. A learned Single Judge of this
Court, in almost an identical situation was
dealing with the rejection order passed for
compassionate appointment by U.P. Rajya
Vidhut Utpadan Ltd., Lucknow, wherein
the declaration of civil death was granted
by the civil court on 07.07.2018, and by
that
time,
the
father
had
already
superannuated on 30.05.2010. The learned
Single
Judge
after
noting
various
precedents relied by the parties, including
the judgment of (I) L.I.C. of India Vs.
Anuradha (Supra), (II) Nagpur Bench of
Bombay High Court in Second Appeal
No.18 of 2016 (Sou. Swati W/o Abhay
Deshmukh and ... vs Shri. Abhay S/O.
Purushottam Deshmukh) decided on
26.02.2016 and (III) Division Bench
Judgment of the Andhra Pradesh High
Court in Writ Petition No.34859/2016
(Union of India represented by its
Secretary and Others Vs. Polimetla
Mary Sarojini And Another) decided on
31.01.2017, dismissed the petition on the
ground that presumption would not arise
unless a specific date of death if proved by
evidence in the given facts since the date of
death was neither disclosed nor was
proved, the writ petition was rejected [see
order dated 04.12.2019 passed in Writ A
No.19124 of 2019 (Vivek Kumar Verma Vs.
Uttar Pradesh Rajya Vidyut Utpadan
Nigam Limited And 02 Others].

24. In view of the above
discussions, as the father, if alive would
have attained the age of superannuation on
30.11.2013. Whereas, in view of the law on
the subject, his civil death cannot be
presumed on a date prior to 16.10.2019
when
the
suit
was
filed
for
such
declaration, the petitioner's claim for
compassionate
appointment
is
not
sustainable on aforesaid law.

25. For all the aforesaid reasons,
this Court does not find any infirmity in the
impugned orders dated 05.04.2024 and
12.07.2024 passed by the learned Single
Judge of this Court in Writ A No.2731 of
214 INDIAN LAW REPORTS ALLAHABAD SERIES
2024 and Civil Misc. Review Application
Defective No.117 of 2024 respectively.

26. As a sequel to the above, the
present Special Appeal is dismissed.

27. There shall be no order as to
the costs.
----------
(2024) 10 ILRA 214
APPELLATEJURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.10.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Special Appeal Defective No. 551 of 2024

Surya Prakash Mishra ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Tanay
Hazari,
Alka
Verma,
Jhanak
Bhawnani

Counsel for the Respondents:
C.S.C.

Civil Law - Constitution of India,1950 -
Article 226 - UP Intermediate Education
Act, 1921 - Section 16-G-(3)- Special
Appeal - against dismissal of Writ Petition - filed
by the appellant, who is a Teacher in a private
School, challenging the impugned order of
termination of his services - learned Single
Judge dismissed the writ petition on the ground
of maintainability of writ petition in view of law
laid down by Apex court in St. Mary's
Education Society' case - while relying upon
another judgment rendered by High Court of
Madhya Pradesh at Indore in Vinita's case, plea
has been taken that, St. Mary's Education
Society's case deals only with the non-teaching
employees and the ratio laid down in that case
would not apply to the appellant who was a
teacher - court while relying upon the judgment
of Apex court in Army Welfare Education
Society's case which dealt with both teachers
and members of non-teaching staff, held that,
writ petition filed for challenging the termination
of service contract of a teacher working in a
private institution will not be maintainable. (Para
- 19, 20)

Appeal Dismissed. (E-11)

List of Cases cited:

1. St. Mary's Education Society Vs. Rajendra
Prasad Bhargava & ors. (2023 4 SCC 498),

2. Vinita Vs U.O.I.(2022 SCC online MP 3745),

3. Devesh Verma Vs Christ Church College (2023
SCC online All 7),

4. Army Welfare Education Society, New Delhi
Vs Sunil Kumar Sharma (2024 SCC online SC
1683).

(Delivered by Hon'ble Subhash Vidyarthi, J.)

 (Order on C.M. Application No.
I.A. 1 of 2024)

1. Heard Smt. Alka Verma, the
learned counsel for the appellant and the
learned Standing Counsel for the State.

2. This is an application for
condonation of delay in filing the special
appeal against the judgment and order
dated 21.3.2024 passed by the Hon'ble
Single Judge of this Court in Writ A No.
2377 of 2024.

3. In the affidavit filed in support of
the application, it has been stated that the
appellant is based at New Delhi and is
suffering from chronic fever. It is also
stated in the affidavit that after termination
of his service, the appellant was facing
financial crisis. The learned Standing