IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition (T) No. 6959 of 2008. Judgement reserved on: 20.7.2009. Date of decision: 6.8.2009. Arvind Kumar …..Petitioner. Vs. State of H.P. & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. V.D.Khidtta, Advocate. For the Respondents : Mr. R.K. Sharma, Senior Additional Advocate General with Mr. A.K. Bansal, Additional Advocate General and Mr. R.P.Singh, Asstt. Advocate General. Kuldip Singh, Judge. This petition was filed in the H.P. State Administrative Tribunal, where it was registered as OA No. 109 of 2003. The Tribunal was abolished vide notification dated 8th July, 2008 and thereafter in view of the Himachal Pradesh Administrative Tribunal (transfer of decided and pending cases and applications) Act, 2008, O.A No. 109 of 2003 was transferred to the High Court and registered as CWP (T) No. 6959 of 2008. 2. The petitioner has prayed for quashing of Annexure A-8 memo dated 23.12.2002 vide which the case of the petitioner for compassionate appointment was returned by respondent No. 2 to Whether the reporters of the local papers may be allowed to see the Judgment? …2… respondent No.3 with some observations. It has also been prayed that respondents may be directed to consider the case of the petitioner for compassionate appointment and give appointment to petitioner as Class III employee as per policy of the government. 3. The case of the petitioner is that his father Vijay Kumar had died on 17.1.1996 while in service as Trained Graduate Teacher leaving behind widow Smt. Jassi Devi, one daughter and two sons namely Arvind Kumar (petitioner) and Naginder Kumar. It has been pleaded that Naginder Kumar is employed as Vidya Upasak and is living separately for the last many years. Vijay Kumar had earlier married Smt. Krishna Devi and their divorce took place in the year 1975. Thereafter Vijay Kumar got married with Jassi Devi mother of the petitioner. 4. Krishna Devi former wife of Vijay Kumar and her children filed suit at Patiala against the petitioner, his mother, brother and sister. After the death of Vijay Kumar in the year 1996, Krishna Devi and her children filed a suit in the court of Sub Judge, Nahan for claiming retiral benefits of Vijay Kumar. The said suit was transferred to erstwhile Tribunal and was registered as TA No. 1 of 1998. 5. In TA No. 1 of 1998 the petitioner, his mother and brother filed an application that the suit at Patiala had been compromised. On 1.6.2001, the Tribunal in TA No. 1 of 1998 directed that OA (TA No. 1 of 1998) be treated as representation to respondent No.1 i.e. Secretary (Education), who will decide the same in two months. Thereafter the representation was decided and the …3… dues and admissible retiral benefits including pension etc. were paid, as per the compromise Annexure A-1. 6. Smt. Jassi Devi had also filed an application under Section 125 Cr.P.C. in the court of Chief Judicial Magistrate, Nahan against her son Naginder Kumar, who offered to pay maintenance at the rate of Rs.300/- per month to his mother. 7. The petitioner and his mother also submitted an application immediately after the death of Vijay Kumar in June 1996 but the respondents did not accept the application for want of requisite documents. The petitioner in June 2002 had submitted an application to Principal, Dy. Y.S. Parmar Memorial Sr. Secondary School, Dadahu. The Principal had sent the application of the petitioner to respondent No. 3 in July 2002, who in turn had sent the application to respondent No. 2 on 9.9.2002. The respondent No. 2 rejected the case of the petitioner on 23.12.2002 vide annexure A-8. It has been submitted that case of the petitioner has been rejected wrongly on the ground that Naginder Kumar is already in government service. Naginder Kumar is residing separately and is not supporting the family of Smt. Jassi Devi. The authorities have mechanically rejected the case of the petitioner. 8. The respondents have contested the petition by filing reply on the ground that one family member of deceased Vijay Kumar is working as Vidya Upasak and as per the government policy where one or more members of the family are in government service or in employment of autonomous bodies of the State/ Central Government employment assistance should not under any circumstances be …4… provided to the second or third member of the family. The petitioner has filed rejoinder and reiterated his stand. 9. The learned counsel for the petitioner has submitted that Naginder Kumar brother of the petitioner is living separately and is not supporting the family of deceased Vijay Kumar. In these circumstances, the petitioner is entitled to compassionate appointment after the death of his father Vijay Kumar. He has relied Satya Devi and another vs. Inspector General of Prison 1994 (3) SLJ 2501 in support of his submission and has submitted that in case any member of the family is already in service but is living separately and is not supporting the dependants of the deceased, the case of other member of the family for compassionate appointment is to be considered. 10. The learned Senior Additional Advocate General on the contrary has relied State of H.P. and another vs. Jafli Devi (Smt.) (1997) 5 SCC 301 in which the Supreme Court has held that second son of the respondent could not be given appointment on compassionate ground since the other son of the deceased employee was already in government service. The learned counsel for petitioner has not disputed the eligibility conditions for compassionate appointment in State of H.P. and another vs. Jafli Devi (Smt.) as well as in Satya Devi and another vs. Inspector General of Prison. He has stated that though same eligibility conditions were before the Supreme Court but Supreme Court in State of H.P. and another vs. Jafli Devi (Smt.) (supra) has not specifically dealt with the situation where the son who is in employment is not living with the …5… family and supporting the family left by the deceased. The Supreme Court has interpreted the eligibility for compassionate appointment and has clearly stated that when one son of the deceased is already in government service then the second son cannot be given employment under compassionate policy. 11. The eligibility conditions indicate that only the claim of the widow can be considered in case employed sons/ daughters are not supporting her. In the present case, the widow of deceased Vijay Kumar has not come forward seeking compassionate appointment. Vijay Kumar had died on 17.1.1996. The petition was filed on 9.1.2003 after a gap of about seven years. This also indicates that petitioner is not an indigent otherwise he would have not taken such a long time for filing the petition for compassionate appointment after the death of his father. Thus taken from any angle, the petitioner has failed to make out a case for interference. Resultantly, the petition fails and is accordingly dismissed. August 6, 2009. ( Kuldip Singh ), (Hem) Judge.