# Mohd. Ishtiaq v. State Of U.P. & Ors - **Citation:** (2016) 3 ILRA 309 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-02-25 - **Bench:** Rajan Roy - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-ishtiaq-v-state-of-u-p-ors-43527 - **Pages:** 3 ## Text 3 All. Mohd. Ishtiaq Vs State Of U.P. & Ors. 309 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 25-02-2016 BEFORE THE HON'BLE RAJAN ROY, J. Service Single No. - 3426 of 2016 Mohd. Ishtiaq ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for Petitioner:- Alok Mishra Counsel for Respondents:- C.S.C., Amit Kr. Singh Bhaduri Held: Once the statutory conditions prescribed under Section 108 of the Indian Evidence Act are satisfied, a presumption of civil death arises and the burden shifts upon the person asserting that the missing person is alive. No declaration by a Civil Court is mandatorily required for raising such presumption. Administrative circulars cannot override statutory provisions or binding judicial precedents. Rejection of compassionate appointment solely on the ground of absence of civil court declaration is unsustainable. Case Law Cited: Ramakant Singh Vs. State of U.P. & Ors., 2005 (23) LCD 169 District Judge Vs. Saurabh Kumar, Special Appeal No. 767 of 2012 (Delivered by Hon'ble Rajan Roy, J.) 1. Heard learned counsel for the parties. 2. The father of the petitioner is said to have disappeared more than seven years ago, therefore, he claims compassionate appointment presuming his civil death in terms of Section 107 and 108 of the Indian Evidence Act. 3. The question as to whether in such cases declaration is required by the Civil Court or not was considered by the Division Bench of this Court in the case of Ramakant Singh Vs. State of U.P. and others reported in 2005 (23) LCD 169 wherein it was held that even if the suit had not been filed, a presumption could be drawn, if the conditions imperative for raising the presumption were satisfied. Once a presumption of civil death is raised on the satisfaction of the conditions given in Section 108 of the Indian Evidence Act, the burden of 310 INDIAN LAW REPORTS ALLAHABAD SERIES proof that he is alive, is then shifted to the person who affirms that the person reported missing was seen and is alive. 4. Similar view has been taken by another Division Bench of this Court in the case of District Judge Vs. Saurabh Kumar, (Special Appeal No. 767 of 2012). 5. In the present case, father of the petitioner is said to have disappeared while in service on 06.10.2007. An F.I.R. is said to have been lodged on 11.10.2007. 6. According to the petitioner, a final report was submitted in respect thereto before a Court of competent jurisdiction. However, learned counsel for the petitioner is unable to inform the Court as to whether the same has been accepted or not. The mother of the petitioner is said to have filed a Regular Suit bearing No. 128 of 2015 seeking declaration regarding the civil death of her husband which was dismissed on the ground that under Section 108 of the Indian Evidence Act a presumption of civil death exists but the said provision does not require any declaration by the Court. A suit for declaration can only be filed under Section 34 of the Specific Relief Act. However, such declaration is to be accompanied by such further relief as may be necessary. As the Plaintiff did not seek any relief other than declaration, therefore, only for this reason the Suit was dismissed. The appeal against the said judgment was also dismissed. 7. Nevertheless the petitioner herein applied for compassionate appointment. The same has been rejected on the ground that unless the competent authority gives a declaration about the civil death of his father he can not be provided compassionate appointment. Shri Amit Kumar Singh Bhadauriya, learned counsel for the opposite parties 2 and 3 relies upon a Circular of the Board dated 16.08.1996 which requires a declaration about the civil death by the competent authority. 8. A perusal of the said circular does not indicate any declaration is required under it from a Court. It only refers to the satisfaction of a competent authority which in this case appears to be the authority competent to provide compassionate appointment. In any case in view of the judgments cited herein above, the said circular can not come in the way if the conditions for applicability of Section 108 of the Indian Evidence Act are satisfied. Moreover, in the present case, it has been averred that the death-cum-retirement benefits consequent to the death of the father have been released in favour of the petitioner and other family members, therefore, this raises a presumption about the disappearance and civil death of the father having been accepted by the opposite parties themselves otherwise even this benefit would not have been extended. 9. In view of the aforesaid, the order impugned can not be sustained and the same is quashed. The competent authority which is empowered to provide compassionate appointment is directed to have a re-look at the matter in the light of the observations and the pronouncements referred herein above, after ascertaining the correct factual position as regards the acceptance or otherwise of the final report submitted as referred above, and take a decision regarding the entitlement of the petitioner to compassionate appointment within a 3 All. Asok Pande (In Person) Vs Union Of India & Anr. 311 period of two months from the date a certified copy of this order is submitted. Consequences shall follow as per law. 10. With the aforesaid observations, the writ petition is disposed of. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 10.03.2016 BEFORE THE HON'BLE AMRESHWAR PRATAP SAHI, J. THE HON'BLE ATTAU RAHMAN MASOODI, J. Misc. Bench No. 4736 of 2016 Asok Pande (In person) ...Petitioner Versus Union of India & Anr. ...Respondents Counsel for Petitioner: Asok Pande (In person) Counsel for Respondents: A.S.G., U.N. Misra HELD: 1. The PIL sought a mandamus restraining the 150-year celebration of the Allahabad High Court on the ground that its origin under British rule makes such celebration improper. 2. It further sought a direction to the Union Government to change the years of British-era enactments after the Constitution. 3. The Court held that the High Court's establishment in 1866 is a historical fact, and its continuity is constitutionally validated under Articles 214, 225, and 372. 4. The Constitution expressly adopted pre-existing judicial institutions; therefore, the celebration does not glorify colonial rule. 5. The argument that British‐era laws lack legitimacy was rejected, as Article 372 continues all such laws unless repealed. 6. Past celebrations-1966 (centenary) and 1991 (125 years)-were held without challenge; objection now raised is legally untenable. 7. The Court relied on Chief Justice Nasirullah Beg's 1966 address, emphasizing that India's judicial traditions predate British rule by millennia. 8. The sesquicentennial celebration commemorates judicial evolution, not colonial origins. 9. The PIL rests more on sentiment than constitutional logic. 10. "Celebration" means honouring institutional achievement over 150 years, not British rule. 11. Constitutional continuity and rationality defeat petitioner's argument. 12. Request to alter years of British‐era statutes lies exclusively in the legislative domain. 13. No mandamus can compel Parliament or State Legislatures to amend laws. 14. Judicial review cannot intrude into legislative functions. 15. No constitutional or rational basis exists to restrain the celebrations.