S.S.Chauhan, J. - (1.) HEARD learned counsel for the appellants and learned counsel for the respondents.
(2.) THIS second appeal has been filed against the judgment and decree dated 25.01.2010 passed by the 3rd Civil Judge (Senior Division), Faizabad and the appellate order dated 27.9.2010 passed by Addl. District Judge, Court No.4, Faizabad. The dispute arose between the plaintiffs and the defendants in respect of a compassionate appointment. The deceased employee Gopal Ji Srivastava died in harness on 10.11.1991, who was posted as Clerk -cum -Cashier, leaving behind his wife, one daughter and one son i.e. respondents no.3, 1 & 2 respectively. The wife of the deceased employee moved an application for her appointment on 29.11.1991. The application of the mother was opposed by respondents no.1 and 2 by filing a suit for injunction in 1993. The suit proceeded and during pendency of the suit, respondents no.1 and 2 attained majority. As and when they attained majority, an application was moved during pendency of the suit on their behalf. The suit thereafter was decided and after decision of the suit, mandatory injunction was issued for giving appointment to respondent no.2 as it was found that the mother had applied on 29.11.1991 and the then scheme contemplated that if the children are minor, then their claim will continue to survive in accordance with Clause 7 (b) of the then scheme provided the application was submitted within the stipulated time of one year. After decretal of the suit, an appeal was filed by the appellants and the same has been dismissed vide judgment and order dated 27.09.2010. After having lost from both the courts below, this second appeal has been filed, inter alia, on the substantial questions of law, namely, that the trial court and the appellate court have committed manifest error of law in not appreciating the fact that the minors have not applied during the permissible period of one year as contemplated in Clause 7 (b) of the then prevailing scheme and second, the Civil Judge was not competent to give direction for appointment and only power vested with the court was to give direction for consideration of appointment in accordance with law; and third the scheme in the meantime has taken a drastic change and compassionate appointment was given up in the said scheme on certain stipulations.
(3.) LEARNED counsel for respondents no.1 and 2, on the other hand, has submitted that the application was moved by the mother and at the same time a Writ Petition No.5993 (SS) of 1994 was filed by the brother of the deceased claiming compassionate appointment as at the relevant time under the relevant scheme brother was also included within the definition of dependants. The said writ petition was disposed of with the direction to consider the claim of the widow as well as the brother, whosoever found to be more suitable. Prior to the order, a suit for injunction was filed by respondents no.1 and 2 praying not to give appointment to the mother as allegations were made against her that she has deserted the deceased husband and was living separately and was employed as Midwife and so she cannot be included within the definition of dependant. The then scheme contemplates for applying within a period of one year. The dispute arose within it and so, the suit was filed in the year 1993, therefore, it has to be presumed that respondents no.1 and 2 came into picture as soon as the mother applied for compassionate appointment. There was no need on behalf of respondents no.1 and 2 to apply separately. The right to be considered along with the mother was intact and inherent with the respondents no.1 and 2. If the claim of the mother was to be considered, then it was also to be considered whether the minor children, who were then alive could be considered for appointment or not or in case they have not applied and it was in the knowledge of the Bank, then the claim of the mother could have been considered without considering the claim of the minor children. Both the courts below have recorded concurrent finding that the Bank was under obligation to consider and give appointment to Kumar Saurabh, who was the surviving son and who was minor at the time of death and in accordance with Clause 7 (b) of the then existing scheme, claim of the minor was to be considered till he attained majority. Learned counsel for the respondents, therefore, submits that the courts below have committed no illegality and no substantial question of law arises for consideration in the second appeal.;