JUDGMENT 1. - The petitioner, in this petition under Article 226 of the Constitution of India, is seeking Mandamus to provide him suitable appointment under the Rajasthan (Recruitment of Dependents of Government Servants Dying while in Service) Rules, 1975 (hereinafter to be referred to as the `Rules of 1975'). The Petitioner's father Shri Shambhu Dayal Sharma was in Government service working as Vaccinator at Primary Health Centre, Bhanpur-Kalan under the Dy. Chief Medical and Health Officer, Jaipur. As per averments in the petition, his whereabouts are not known since June, 1976. The Petitioner has claimed that a presumption under Section 108 of the Evidence Act be drawn that his father Shambhu Dayal Sharma has died, as he has not been heard of for 7 years by his wife and other persons, who would naturally have heard of him if he had been alive. According to him, he had moved an application on 7.10.91. before the concerned authorities to provide him employment under the `Rules of 1975' as per his qualification as dependent of Shri Shambhu Dayal Sharma, but no action was taken on his application. Then, a notice for demand of justice was given to the respondents through his counsel and the same was received by them on 3.1.92 or 6.1.92, but still his claim was not decided though he is eligible and entitled to get appointment as L.D.C. and that several posts of L.D.Cs. are lying vacant in Medical and Health Department and other Departments of the State Government. 2. The respondents No. 2 to 4, in their return denied the fact that petitioner's father Shri Shambhu Dayal was missing from June, 1976 or that his where-abouts are not known since July, 1976. It was pleaded by them that Shri Shambhu Dayal had applied for leave from 7.8.77 to 28.8.77 and his application was forwarded to the Dy. C.M.H.O. They also denied to have received any application from the petitioner seeking appointment under the Rules of 1975 or the notice for demand of justice. In their reply to the rejoinder they have further stated that Shambhu Dayal Sharma was paid salary from July, 1976 to July, 1977 and by an order of the Dy. Chief Medical and Health Officer (Malaria) dated, 1.1.79, he was asked to submit explanation for his absence. In their reply to the rejoinder they have further stated that Shambhu Dayal Sharma was paid salary from July, 1976 to July, 1977 and by an order of the Dy. Chief Medical and Health Officer (Malaria) dated, 1.1.79, he was asked to submit explanation for his absence. They have also come with a defence that the disputed question about the death of petitioner's father Shambhu Dayal cannot be decided in writ jurisdiction by drawing a presumption under Section 108 of the Evidence Act. 3. From the material on record, the contention of the answering respondents does not appear to the correct that they did not receive any application from the petitioner seeking employment under the Rules of 1975. In fact, the application ought to have been decided by the concerned Authority/Officer after holding an enquiry and perusal of service record of Shri Shambhu Dayal Sharma. 4. Be that as it may, the question which calls for consideration in this petition is whether a direction can be given to the respondents to provide appointment/ employment to the petitioner under the Rules of 1975 by drawing a presumption under Section 108 of the Evidence Act that his father had died while in service. 5. There is a presumption in favour of continuation of life (See Section 107 of the Evidence Act) and the burden of proving that he is dead, is on the person who confirms it. Section 108 of the Evidence Act comes as a proviso to Section 107 which reads as under "S. 108. Burden of proving that person is alive who has not been heard of for seven Years - Provided that 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 the person who affirms it." 6. A perusal of the aforesaid Section would show that a person can be presumed to have died if he has not been heard of for 7 years by those who would naturally have heard of him if he had been alive. The onus of proving that he is alive is shifted to the person who has affirmation that he is alive. The onus of proving that he is alive is shifted to the person who has affirmation that he is alive. Thus, if a person has not been heard of for 7 years, there is a presumption under Section 108 that he is. dead, but at what time within that period he died is not a matter of presumption, but of evidence and onus of proving that the death took place at any particular time within 7 years lies upon the person who claims a right to the establishment of which that fact is essential. 7. Applying the aforesaid principle of law on the material on record, it is difficult to hold that the petitioner's father Shambhu Dayal Sharma was not heard of since June, 1976. The matter requires an enquiry and perusal of the entire service record about his attendance etc. It may also require to enquire if he has absconded to avoid a disciplinary enquiry against him and whether by drawing a presumption Under section 108 it can be held that he has died before the date of his superannuation. 8. Taking into consideration all the facts and circumstances, presently no direction can be given in favour of the petitioner by drawing a presumption that his father has died while in service. As the matter requires an inquiry and perusal of entire service record, the Director, Medical and Health Services, Rajasthan Jaipur, is therefore, directed to decide the question of entitlement of the petitioner for appointment/employment under the Rules of 1975, after holding an inquiry and taking into consideration the entire service record about his attendance, leave application etc. The inquiry shall be of summary nature and the same shall be completed within six months from the date of receipt of this order. In the inquiry the petitioner shall be given full opportunity to lead evidence and produce documents in support of his claim. On completion of the inquiry if it is found that petitioner's father has died while in service and the petitioner is entitled to employment/ appointment under the Rules of 1975, necessary orders shall be passed immediately thereafter. 9. The petition stands disposed of as indicated above. No order as to costs. A copy of this order be sent to the Director, Medical and Health Services, Government of Rajasthan, Jaipur for compliance of the order.Petition disposed of as indicated above. *******