JUDGMENT Honble Rakesh Tiwari, J.—Heard Sri Anurag Khanna, learned counsel for the petitioner and Standing Counsel who has accepted notice on behalf of the respondents No. 1 to 4. 2. The facts of the case in brief are that father of the petitioner, late Bijendra Pal Sharma was working as Constable in U.P. Police. He went missing with effect from 22.4.1991. A complaint was made by the grand father of the petitioner regarding missing of his son, Bijendra Pal Sharma at Police Station-Khatauli, District-Muzaffarnagar. An F.I.R. was lodged on 1.10.1991 in this regard which was registered as Case Crime No. 303 of 1991 under Section 364, IPC at Police Station-Khatauli, District Muzaffarnagar. 3. On 26.1.1998 an application was moved by the mother of the petitioner before Superintendent of Police, Hardwar for providing compassionate appointment in place of his husband, Bijendra Pal Sharma who went missing, to one member of her family namely, the petitioner under Dying-in-Harness Rules. The Superintendent of Police, Hardwar vide order dated 31.5.1999 officially declared Bijendra Pal Sharma, father of the petitioner to have died after missing of seven years and issued direction for payment of pension, gratuity and other funds to the mother of the petitioner. 4. It appears that on 5.7.2001 petitioner moved an application before the Superintendent of Police, Hardwar for his appointment under Dying­in-Harness Rules which was forwarded to the Superintendent of Police (Personnel), U.P. Police Headquarters at Allahabad. 5. During the pendency of the aforesaid application State of Uttar Pradesh was bifurcated in two States namely, State of Uttaranchal and State of U.P. After bifurcation the papers relating to appointment of the petitioner were sent to the State of Uttaranchal which was forwarded to the Inspector General of Police, Headquarters, Dehradun under covering letter dated 29.1.2002 for passing appropriate orders. These papers were returned by the Deputy Inspector General of Police (Personnel), Uttaranchal, Dehradun to the Deputy Inspector General of Police (Establishment), U.P. Police Headquarters, Allahabad under covering letter dated 5.11.2003. These papers were returned by the Deputy Inspector General of Police (Personnel), Uttaranchal, Dehradun to the Deputy Inspector General of Police (Establishment), U.P. Police Headquarters, Allahabad under covering letter dated 5.11.2003. Thereafter number of correspondence have taken place between the State of Uttaranchal and State of U.P. Ultimately legal opinion was sought by the Home Department from Special Sect/Additional Legal Remembrancer, Law Department, U.P. who opined that since the father of the petitioner has been declared to have died a civil death by Civil Judge (Senior Division), Meerut in Declaratory Suit No. 418 of 2005 vide judgment and decree dated 19.1.2006 and if the petitioner is qualified to be appointed, his case for appointment under Dying-in-Harness Rules may be considered. 6. The contention of counsel for the petitioner is that the Government vide notification dated 28.7.2006 amended U.P. Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974 vide VII Amendment Niyamawali, 2006 and Deputy Inspector General of Police (Establishment) U.P. Police Headquarter, Allahabad issued Office Order dated 24.9.2006 for its compliance but no compliance was made. 7. The petitioner under aforesaid circumstances filed writ petition No. 18142 of 2007 before this Court which was disposed of vide judgment and order dated 6.4.2007 directing the respondents to decide the claim of the petitioner within two months. When the application of the petitioner remained unactioned, petitioner filed Contempt Petition. The representation of the petitioner was rejected by the respondents vide order dated 19.2.2008. An affidavit of compliance was filed by the respondents in Contempt Petition. 8. The petitioner has come up in the writ petition with the prayer to issue a writ of Certiorari quashing the order dated 19.2.2008 passed by Respondent No. 1. Petitioner has also prayed to issue a writ of mandamus directing the respondents to consider his claim for compassionate appointment on the basis of legal opinion sought from Additional Legal Remembrancer, U.P. dated 10.4.2006. 9. Learned counsel for the petitioner has placed reliance upon the judgment rendered in writ petition No. 909 of 2002, Ajai Kumar Tiwari v. Deputy Inspector General of Police (Establishment) and others wherein the point for consideration was similar. The Court in that case held that the application should be moved by the applicant within seven years of presumption of civil death who has gone missing. The Court in that case held that the application should be moved by the applicant within seven years of presumption of civil death who has gone missing. He has also relied upon the judgment passed in Special Appeal No. (Defective) 673 of 2001, State through D.I.G. Karmik, Police Head Quarter, Allahabad and others v. Rishi Kumar Dixit wherein also the Court has considered the question of delay and has read the provisions contained in Sections 107 and 108 of Indian Evidence Act holding that once civil death is presumed the burden shifts on the department to prove that he is still alive and dismissed the Special Appeal and directed the respondents to consider the claim of the petitioner for compassionate appointment within three months. The aforesaid special appeal arose out of the judgment dated 12.3.2001 passed in writ petition No. 5196 of 2000 whereby learned Single Judge allowed the writ petition. 10. Similar are the ratio of the decision dated 29.9.2004 rendered in writ petition No. 2746 of 2002 (S/S), Sanjai Kumar Singh v. State of U.P. and others as well as judgment dated 13.5.2002 passed in writ petition No. 6051 (S/S) of 2001, Smt. Vidya Devi v. State of U.P. and others. 11. Standing Counsel has placed reliance upon counter affidavit in which it has been averred that the Dying-in-Harness Rule, 1974 are not applicable as the said rules do not provide for compassionate appointment to the dependant of the employee who is claimed to have been missing from service for seven years on presumption of civil death. According to the Standing Counsel the notice of the aforesaid rules are applicable to the dependants of government servants who have died in harness while working. It is stated that the death of deceased Government employee has a nexus with the actual death of the Government servant in harness and not a civil death and that on presumption of civil death, only pension and other dues are payable. Reference in this regard have been made to the Government Orders dated 9.12.2008, 13.7.2006 and 21.5.2007 copy whereof is annexed as Annexures 3, 4 and 5 to the counter affidavit. 12. Reference in this regard have been made to the Government Orders dated 9.12.2008, 13.7.2006 and 21.5.2007 copy whereof is annexed as Annexures 3, 4 and 5 to the counter affidavit. 12. After hearing counsel for the parties and from the facts which have emerged it appears are that father of the petitioner had gone missing w.e.f. 22.4.1991 and an application was moved for appointment of one of the member of family of her husband by mother of the petitioner on 26.1.1998. The application was thus moved within seven years therefore this application will not give the notice of civil death of the Government servant or vest with his family for any claim for consideration for appointment under the Dying-in-Harness Rules. However, since the petitioner himself moved an application for compassionate appointment on 5.7.2001, which was within five years of the presumption of civil death of the deceased Bijendra Pal Sharma, can be said to be within time as has been held in the judgments relied upon by counsel for the petitioner. 13. As regards, contention of Standing Counsel that the petitioner is not entitled to compassionate appointment in view of the Government Orders dated 9.12.1998, 13.7.2006 and 21.5.2007 are concerned, they have no retrospective application. In the present case, civil death of the father of the petitioner has been presumed w.e.f. 22.4.1991 therefore the law before the aforesaid government orders were passed, would be applicable i.e. as it was before the date of passing of the government order dated 9.12.1998. 14. For the reasons stated above and in view of the decision rendered in Special Appeal No. (Defective) 673 of 2001, State through D.I.G. Karmik, Police Head Quarter, Allahabad and others v. Rishi Kumar Dixit, which is binding upon this Court, the impugned order dated 19.2.2008 is quashed. The writ petition is allowed. The respondents are directed to consider the application of the petitioner afresh in accordance with law within a period of two months from the date of production of certified copy of this order i.e. whether the petitioner or family of the deceased is in cold penury; the family of the deceased is in need of immediate financial assistance after having survived for about 18 years after missing of father of the petitioner w.e.f. 22.4.1991. 15. With the aforesaid observations, the writ petition is allowed. ———