JUDGMENT
D.C. Verma, Member (J)
1. By O.A., Rohit Sahay, a minor aged about 10 years, through her grandmother Smt. Chandrawati Sahay has filed the present O. A. with the prayer that the appointment of respondent No. 4 Smt. Laxmi Sahay as L.D.C. on compassionate grounds, be quashed. The further prayer is that the appointment on compassionate grounds in favour of the applicant may be deferred till he attains the majority so that on getting employment, after attaining the age of majority, the applicant may discharge the burden which will have to be arranged on incurring for maintenance and education of the remaining dependants of late employee Rajesh Sahay.
2. The brief facts of the case are that late Rajesh Sahay was Section Officer, Non-Commercial in the office of respondent No. 3 Rajesh Sahay died in harness on 20.1.94. Rajesh Sahay was married to respondent No. 4 Smt Laxmi Sahay. The applicant Rohit Sahay was born out of their wedlock on 10.11.85. Due to differences between Rajesh Sahay and Laxmi Sahay, they separated with each other as per agreement Anncxure-5 dated 17.11.89. Since then, the respondent No.4 Smt. Laxmi Sahay has been living separately. After death of Rajesh Sahay on 20.1.94 respondent No. 4 Smt. Laxmi Sahay, being widow of late Rajesh Sahay, was given appointment as L.D.C. in the office of respondent No. 3 vide order dated 8.6.94 (Annexure A-1 to the O.A.).
3. The applicant’s case is that as Smt. Laxmi Sahay (respondent No. 4) had voluntarily severed her marital relations with late Rajesh Sahay and had also relinquished her claim for maintenance, she was not dependant on the late employee Rajesh Sahay and therefore, it has been submitted, that respondent No. 4 is not entitled to appointment on compassionate grounds. Further, it has been submitted that as Smt. Laxmi Sahay was not dependant on late Rajesh Sahay, on the death of late Rajesh Sahay, there would be no financial strain on Smt. Laxmi Sahay and therefore, the respondent No. 4 cannot be said to be in indigent condition.
4. The official respondents 1 to 3 have contested the claim of the applicant and have stated that the application is beyond limitation as the same has not been filed within one year. It has been further stated that late employee Rajesh Sahay had not filed any nomination paper or any claim in the event of death. The applicant is minor so he is not eligible for appointment. There was no divorce or judicial separation between late Rajesh Sahay and respondent No. 4 Smt. Laxmi Sahay. The marriage was therefore, not dissolved. The respondent No. 4 continued to execute agreement dated 17.11.89. In September, 89 late Rajesh Sahay had submitted his family details in which the name of the mother of late employee was not included. After death of late employee the widow i.e. respondent No. 4 and the mother of the
late employee Smt. Chandrawati Sahay moved separate applications for payment of terminal benefits and for appointment on compassionate grounds. The respondent No. 4 was given appointment on 18.5.94. However, for payment of retiral benefits, both the mother Smt. Chandrawati Sahay and the widow respondent No. 4 were directed to substantiate their claim and file succession certificates.
5. A separate counter affidavit by respondent No. 4 has been filed wherein besides all the general grounds taken by the official respondents the claim of the applicant has been further contested on the ground that respondent No. 4 lived with her late husband till his death on 20.1.94 and the marriage was still subsisting. The marriage was never dissolved by any decree of Court of law; that Km. Savita Sahay, sister of late employee has been already married and therefore, cannot be treated to be a member of the family of the late employee. During the course of arguments it was further submitted that as per order of the Court dated 10.5.95 for issue of succession certificate the respondent No. 4 and Smt. Chandrawati the mother of the late employee have been given l/3rd share each.
6. It is admitted case that the applicant is the son and the respondent No. 4 is the widow of late employee Rajesh Sahay. It is also admitted fact that there was no legal divorce or separation between the late employee and respondent No. 4. Thus, the respondent No. 4 Smt. Laxmi Sahay remained a legally wedded wife of late employee. She, thus, as widow, is legally entitled for such benefits as may acrue to her as widow of the employee.
7. The applicant is the only issue of the late employee and respondent No. 4. When this O.A. was filed in the year 1995, the applicant’s age has been indicated as 10 years. As per document filed on record, the applicant is studying in Saint Francis School. The date of birth of the applicant is 10.11.1985. He would thus, become of 18 years in the year 2003. The applicant is thus, minor and cannot be given appointment. As the applicant is still ineligible for the appointment, he can have no claim for the post.
8. The submission of the learned Counsel for the applicant is that if the appointment of respondent No. 4 is quashed, the appointment of the applicant on compassionate grounds be deferred till the applicant attains the age of majority. It is difficult to accept this contention. No vacancy/post can be reserved for a person to be claimed after attaining majority. Further, as the applicant is presently not eligible for the post, he cannot claim appointment and so he cannot challenge the appointment of respondent No. 4 also. The respondent No. 4 being widow of the late employee is eligible, as such for appointment on compassionate grounds. On the other hand the applicant being not an aggrieved person cannot challenge the appointment of his mother.
9. The further submission of the learned Counsel for the applicant is that in the light of the decision of the Apex Court in the case of Umesh Kumar Nagpal v. State of Haryana, (1994) 4 S.C.C. 138, the appointment on compassionate grounds be given only if the family is in indigent condition. It has been submitted that as the respondent No. 4 has been living separately and maintaining herself without any assistance from the late employee, she cannot be held to be in indigent condition.
10. In the case of Umesh Kumar Nagpal (supra) the Apex Court has held “the whole object of granting compassionate employment is to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitled his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased,and it is only if it is satisfied,
that but for the provision of employment, the family will not be able to meet the crisis, that
a job is to be offered to the eligible member of the family”.
11. It has been further held “compassionate employment cannot be granted after a lapse
of a reasonable, period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapses of time and after the crisis is over.”
12. As held above, by the Apex Court, the whole object of granting appointment is to enable the family to tide over the sudden circumstances after death of late employee. In the case before this Bench the widow has been given appointment. The claim of the applicant to defer the appointment till the applicant becomes major, would be against the law laid down by the Apex Court, in the case of Umesh Kumar Nagpal (supra). It is not the case of the applicant that the respondent No. 4 is employed or has any source of income. It has been submitted by the learned Counsel for the applicant that respondent No. 4 has been living with her parents and brother who have been maintaining her for so long period and therefore, the respondent No. 4 cannot be said to be in indigent condition. It has been further submitted that as per agreement dated 17.11.89, the applicant was not to file any case for maintenance. Thus, it is submitted that the applicant cannot make any claim on the basis of maintenance for appointment on compassionate grounds.
12A. The submissions of the learned Counsel for the applicant have no merit. The agreement dated 17.11.89 has been denied by respondent No. 4. Besides that, there is nothing in the agreement that the respondent No. 4 would not be getting any monetary help from the late employee. The condition in this respect laid down is that the respondent No. 4 would not file any case to claim maintenance. It can now, therefore, be inferred that the respondent No. 4 was not getting any financial help/assistance from her late husband. Even if it be accepted that the parent or the brother of respondent No. 4 were also given financial assistance, that would not debar her claim for appointment on compassionate grounds. Further, mere agreement is not sufficient to conclude that respondent No. 4 has been living separately for such long period. Thus Tribunal is not to give any finding on the genuineness of the contents of the agreement. However, from the evidence which are on record, it is clear that the respondent No. 4 is not employed and has no other source of income and in the circumstances, her appointment on compassionate grounds cannot be challenged on this ground also.
13. The submission of the learned Counsel for the applicant is that as per the scheme of compassionate appointment (Annexure A-11) in case the children of deceased employee are minor, the appointment can be sought even later but within five years from the date of death of Government servant. However, it has been submitted that relaxation beyond the period of five years can be considered, though very rarely. It has been submitted that in view of this, the claim of applicant for appointment on compassionate grounds can be considered even after the applicant attains the majority. In my view such interpretation would be in violation of the intent laid down in the scheme for compassionate appointment for immediate assistance to the dependants of deceased employee. The submission of the learned Counsel would also be in violation of the law as laid down by the Apex Court in the case of Umesh Kumar Nagpal (supra).
14. The learned Counsel for respondents, has in support of his submission referred to a decision of this Tribunal in O.A. 898/92 Smt. Kamla Devi and Ors. v. Union of India and
Ors. (Allahabad Bench) decided on 26.9.93. It has been submitted that in the cited case the son of deceased employee was only three months and 11 days. After attaining majority, (after 19 years) the son moved application for appointment on compassionate grounds. The Tribunal by the order cited above, directed consideration of the case as per rules on compassionate grounds.
15. It is not necessary to go into the detailed discussions in view of the decision of the Apex Court in the case of Jagdish Prasad v. State of Bihar, 1996(1), S.C.C. 301 wherein the Apex Court held “since death occurred way back in 1971, in which year the son was 4 years old, it cannot be said that he is entitled to be appointed after he attained majority long thereafter. In other words, if that contention is accepted, it amounts to another mode of recruitment of the dependants of a deceased Government servant which cannot be encouraged dehors the recruitment rules.”
16. In view of the above, the applicant cannot, as a matter of right, claim consideration after attaining the age of majority. Therefore, the submission of the learned Counsel that appointment of the applicant be deferred till he attain majority has no merit.
17. On the death of employee, one of the dependant is given employment on compassionate grounds to enable the family to get over the financial crisis which the dependants face due to untimely death of the employee. The object of giving appointment on compassionate grounds is that such an appointee would take care of the other dependants of the deceased employee also so that none of the dependants may feel financial crisis. In the present case, the widow of the late employee has been given appointment. The son (minor) of the late employee has filed the present O. A. Thus, the applicant has to be taken care of by the mother who has been given appointment on compassionate grounds due to death of Rajesh Sahay. From the pleadings on record, it appears that the relations between the son and the mother i.e. the applicant and the respondent No. 4 respectively are not cordial. The applicant is still studying in School. The applicant has to meet the day to day expenses and also for his education. In view of this, the ends of justice require that the respondent No. 4 shares the burden of such expenses of the applicant. In view of this the respondent No. 4 may, in my view, be directed to pay 1/3rd of the salary (basic pay plus dearness allowance) every month to the applicant. The question of payment and receipt may also create problem, therefore, an Account be opened in the name of the applicant under guardianship and the applicant shall inform the Bank Account Number to respondent No. 4 who may, every month, deposit 1/3rd of her salary, as aforesaid in the said account. This view finds support from the decision of the Apex Court in the case of U.P. State Electricity Board v. U.P. Bijli Karmchari Sangh and Ors., 1998 S.C.C. (L and S) 157.
18. Thus, the first relief as claimed by the applicant is rejected, but the second relief has been modified as per directions given above. The O.A. is decided accordingly. Costs easy.