JUDGMENT : 1. Heard learned counsel for the petitioner and Shri Prashastha Puri, Advocate holding brief of Shri Nadeem Murtaza, learned counsel appearing on behalf of respondent no.2. 2. The case had been heard at length on 05.07.2023. On the request of learned counsel for the petitioner, the matter had been fixed for today. 3. Shri Salik Ram Yadava, learned counsel for the petitioner has been heard at length. 4. The instant petition has been filed by the petitioner for the following reliefs: "(1). Issue a writ, order or direction in the nature of certiorari quashing the order dated 10.07.2013 except the payment dues passed by the respondent no.2 annexed as annexure no.1 to the writ petition. (2). Issue a writ, order of direction in the nature of mandamus commanding the respondents to appoint the petitioner under Dying in Harness Rule at the place of her husband and pay him all consequential benefits." 5. The facts of the case are as under:- The petitioner a widow claiming compassionate appointment is aggrieved by the order dated 10.07.2013, copy of which is annexure no.1 to the writ petition whereby the claim of the petitioner for compassionate appointment has been rejected. The ground of the rejection is that the husband of the petitioner went missing on 20.07.2002 while working as Senior Clerk under the respondents. His date of retirement was 30.04.2006 while the declaration by the competent court declaring the petitioner's husband as dead has been issued on 23.02.2011 and thus, by the time the declaration has been given by the competent court, the husband of the petitioner already stood retired, consequently she is not entitled for compassionate appointment. The order of rejection has been challenged by the petitioner by placing reliance on the judgment of this Court in the case of Zishan Khan vs. District Inspector of Schools and Others 2012 LawSuit(All) 1265 decided on 02.03.2012 whereby this Court has held in a similar matter that the presumption of death would arise prior to the date of retirement, when the department itself has paid the retiral dues of the missing employee and in this case too as the retiral dues have been paid as such the presumption of the death of petitioner's husband would relate back to the date of his disappearance i.e. 20.07.2002. On the other hand, Shri Prashatha Puri, Advocate holding brief of Shri Nadeem Murtaza, learned counsel appearing for respondent no.2 has placed reliance on the judgments of the Apex Court in the cases of N. Jayalakshmi Ammal and Others v. R. Gopala Pathar and Another 1995 Supp (1) SCC 27 and Darshan Singh and Others V. Gujjar Singh and Others (2002) 2 SCC 62 and contends that the Apex Court has held that though Section 108 of the Evidence Act indicates the presumption of death where a person has not been heard for seven years but the exact time of death is not a matter of presumption but of evidence and the 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. Placing reliance on the aforesaid observations, the argument of Shri Puri is that in the facts of the instant case where the disappearance of the petitioner's husband took place in July, 2002 and he retired on 30.04.2006 while the declaration of the competent court is 23.02.2011 as such at the time of consideration of claim of compassionate appointment, the petitioner's husband already stood retired and there is no evidence to indicate the exact time of death of the petitioner's husband prior to his retirement date and consequently there would not be any occasion for consideration of the claim of the compassionate appointment inasmuch as compassionate appointment can only be claimed by the legal heirs of the deceased employee who dies in harness, but in this particular case there could not be any consideration of compassionate appointment after the retirement of the employee. Placing reliance on the judgment of this Court in the case of Zishan Khan (supra), the contention of learned counsel for the petitioner is that in the said case also this Court is of the view as the retiral dues have been paid even prior to the date of actual retirement of the employee concerned consequently it would be deemed that the said employee had retired prior to his retirement consequently the legal heir would be entitled to be considered for compassionate appointment. In this case too though the retiral dues have been paid much subsequent to the retirement of the employee concerned. In this case too though the retiral dues have been paid much subsequent to the retirement of the employee concerned. Yet considering that the said retiral dues were due to be paid in terms of the relevant rules after two year of the date of the employee having gone missing. Consequently, it should be deemed that the employee died after two years of his having gone missing. This date would be prior to the date of actual retirement. Consequently, the petitioner would be entitled for compassionate appointment. 6. Heard learned counsel for the parties and perused the record of this case. 7. From the argument of learned counsel for the parties and perusal of record it emerges that the petitioner's husband had gone missing on 20.07.2002 while working as Senior Clerk under the respondents. His actual date of retirement was 30.04.2006. The petitioner had filed a suit for declaration before the competent court for declaring that the petitioner's husband was dead. The declaration has been issued on 23.02.2011. By the time the declaration was issued, the petitioner's husband stood retired. The petitioner's claim for compassionate appointment has been rejected by the department vide order dated 10.07.2013 on the ground that as the petitioner's husband had gone missing on 20.07.2002 while his actual date of retirement was 30.04.2006 as such by the time the declaration has been given by the competent court of law on 23.02.2001, the petitioner's husband stood retired and as such there could not be any occasion for giving compassionate appointment to the legal heirs of a retired employee. 8. The sheet anchor of the case of the learned counsel for the petitioner is the judgment of this Court passed in the case of Zishan Khan (supra). In the said case, this Court after considering that the department has itself paid retiral dues much prior to the actual date of retirement of the employee concerned who had also gone missing had deduced that the department has itself treated the employee to have died much prior to the date of retirement and consequently held that compassionate appointment would be admissible. 9. 9. However in the instant case as per the facts already enumerated above, it is apparent that the petitioner's husband would have retired on 30.04.2006 and the competent court has given a declaration of his death on 23.02.2011 i.e. much subsequent to the date of retirement of the petitioner's husband. The retiral dues have been paid subsequent to the actual date of the retirement of petitioner's husband. 10. The Apex Court in the case of R. Gopala Pathar (supra) as well as Gujjar Singh (supra) has categorically held that Section 108 of the Evidence Act indicates the presumption of death where a person has not been heard for seven years but the exact time of death is not a matter of presumption but of evidence and the 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. 11. Likewise the Privy Council in the case of Lal Chand Marwari Vs. Mahant Ramrup Gir reported in AIR 1926 PC 9 , a case which has been referred to by this Court in the case of Zishan Khan (supra) has also held that if the person has not been heard of for 7 years, there is a presumption of law that he is dead; but at what time within that period he died is not a matter of presumption but of evidence and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential. 12. In a number of judgments over which the reliance has been placed by this Court in the case is Zishan Khan (supra), it is apparent that the burden of proving the specific date of death lies upon the person who claims a right to the establishment of that fact. In the instant case, it is the petitioner who is trying to stake her claim for compassionate appointment by asserting that the death of the petitioner's husband took place even prior to his actual date of retirement which was 30.04.2006, he having gone missing on 20.07.2002. 13. In the instant case, it is the petitioner who is trying to stake her claim for compassionate appointment by asserting that the death of the petitioner's husband took place even prior to his actual date of retirement which was 30.04.2006, he having gone missing on 20.07.2002. 13. Considering the law laid down by the Apex Court in the case of R. Gopala Pathar (supra), Gujjar Singh (supra) as well as by the Privy Council in the case of Lal Chand Marwari (supra), it is apparent that the presumption of proving the actual date of death would lie on the petitioner. However, nowhere in the entire petition the actual date of death of the petitioner's husband is mentioned nor any actual date is coming out from the declaration of any competent court as to on which date the petitioner's husband had died. 14. This Court while exercising the jurisdiction under Article 226 of the Constitution of India finds that the question remains disputed as to the fact of actual date of the petitioner's husband. 15. Keeping in view of the aforesaid, discussion this Court does not find any infirmity with the impugned order dated 10.07.2013 and the writ petition is accordingly dismissed. 16. However, the petitioner would be at liberty of approaching the competent court of law for a declaration regarding the actual date of death of her husband.