KAMLA DEVI AND SUDHIR KUMAR Vs. STATE

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) ON 7th March, 1994, the father of petitioner no. 2, a Government employee, was found untraceable. The appropriate police complaints were made. However, the father of petitioner no. 2 could not be traced. Even after expiry of seven years from the date the father of petitioner no. 2 was found untraceable, he could not be traced. In such circumstances, in view of the provisions contained in the Evidence Act, a presumption of the death of the father of the petitioner no. 2 is to be drawn. Accordingly, such presumption has been drawn. In terms of the presumption, the death occurred not after expiry of seven years from the date when the person stood untraceable but from the date the person was found untraceable. In such view of the matter, the date of death of the father of petitioner no. 2 relates back to 7th March, 1994. The petitioner no. 2 after obtaining necessary death certificate applied for compassionate appointment; that has been rejected only on the ground that in terms of the government policy there is no scope of giving appointment to a person who is presumed to be dead in terms of the provisions of the Evidence Act. A learned Single Judge of this Court in the case of Renuka Rai vs. The State of Bihar and others reported in 2002(2) PLJR 46 has held that the law is that when word "death" is to be construed and understood, the same should take into account not only death occasioned as a natural consequence but also by reason of the presumption laid down by the Legislature in the Evidence Act. In such view of the matter, respondents ought to have decided the application of the petitioner in accordance with law and should have brought the same to a logical conclusion which they have not done for no just reason.

(3.) IT is true that there is a limit for making application for compassionate appointment. This limit, however, will start running from the date when the period of presumption will come to an end and not on the date of the death for by reason of a fiction of the statute made through the legislative mandate, although the death has occurred, the cognizance thereof can be taken after expiry of the time specified.