{ 1 } IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T D.B. CIVIL SPECIAL APPEAL (WRIT) NO.261/2003 Smt.Surta Vs. State of Rajasthan & Ors. Date of Judgment : 5.10.2010 PRESENT HON'BLE MR.JUSTICE A.M.SAPRE HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr. R.S.Saluja, for the appellant. Mr. G.R.Kalla, AGC, for the respondents. BY THE COURT: (PER HON'BLE A.M. SAPRE, J) This is an intra-court appeal filed by writ petitioner of Writ Petition No.646/2003 under Section 18 of the Rajasthan High Court Ordinance, 1949 against an order dated 18.2.2003 passed by Single Judge in above mentioned writ petition. 2. By the impugned order, the learned Single Judge (as His Lordship then was) while disposing of the appellant's writ petition made following observations:- “However, if the petitioner's { 2 } husband has completed the qualifying service and she makes a proper representation for retiral benefits now, the authority shall consider it strictly in accordance with law and pass an appropriate order within a period of 10 weeks from the date of filing the certified copy of this order and proper representation.” 3. So the short question that arises for consideration in this intra court appeal is whether learned Single Judge was justified in disposing of the appellant's writ petition with aforequoted observations? 4. Having heard the learned counsel for the parties and on perusal of record of the case, we concur with the view taken by learned Single Judge and hence find no merit in this appeal. 5. One Vijay Singh was working as Class IV employee in State Services (Education Department). The appellant claiming to be his wife filed one application on 14.5.2002 to State Authorities stating therein that her husband (Vijay Singh) is not traceable since 8.1.1996. She therefore, claimed that since whereabouts of her husband are not known and hence in view of presumption contained in Section 108 of Evidence Act, he (Vijay Singh) is presumed to be dead on the expiry of 7 years from the date he was last seen. The appellant, therefore, claimed compassionate appointment in State services treating her husband to have died while in office. It is this application which was { 3 } dismissed by State Authorities finding as prematured and also of no merit. The appellant felt aggrieved of such rejection and filed the writ petition out of which this appeal arises which was disposed of by learned Single Judge with aforequoted observations. 6. In our considered opinion, the appellant was rightly declined the relief of compassionate appointment. In the first place, a presumption contained in Section 108 of Evidence Act could not be invoked in such manner. Section 108 ibid is a provision, which enables the person concerned to seek a declaration in Court of law and obtain a judicial verdict after determination of the issue raised by such person. A self seeking declaration by simply submitting an application to the State without there being any judicial verdict on such issue does not entitle a person to claim any benefit arising out of such self contained declaration. The question as to whether a person is dead or presumed to be dead within the meaning of Section 108 ibid has to be thus tried in the first instance in competent Court of law because it involves an inquiry. The burden to prove the necessary ingredients of Section 108 of Evidence Act lies on the person who seek such declaration. 7. In this case, the appellant simply filed an application stating therein and that too within 7 years of the so-called missing date, that since her husband's whereabouts are not known from 1996 and hence she should be given compassionate appointment treating her husband to be dead. { 4 } It was not enough for want of any judicial determination on such issue. It was thus rightly declined by State Authority so also by the learned Single Judge to which we concur. 8. Learned counsel for the appellant placed reliance on two decisions reported in 2003(1) WLC 479 and 2002(4) WLC 315 and contended that keeping in view the law laid down in these two decisions, the appellant was entitled to claim compassionate appointment. We have perused the ratio of the two decisions relied on and find that they are distinguishable on facts. In that case there was no dispute on facts so also the rule which made provisions to that effect. Such factors are not present in this case and hence no benefit can be given of ratio of these case. 9. So far as appellant's right to claim pension in such eventuality is concerned, the learned Single Judge has already granted liberty to invoke the Rules made in that behalf to enable the appellant to get pension, if permissible under the Rules. We also find that there is no reason as to why the case of appellant would not be examined by the Authority for grant of pension if she is held entitled to get so as per Rules. We accordingly direct the respondents to consider the case of appellant if she applies for pension. 10. In the light of foregoing discussion, we find no merit in this appeal. It is, accordingly dismissed. ( DINESH MAHESHWARI ),J. ( A. M. SAPRE ),J. /tarun/