2. By this petition, the petitioner has challenged the order dated 22.8.2007 passed by District Judge, Sonebhadra contained in Annexure-7 of the writ petition, whereby the claim of compassionate appointment of petitioner in Judgeship, Sonebhadra under the U.P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 hereinafter referred to as the Dying in Harness Rules has been rejected. A further writ in the nature of mandamus is sought for directing the respondent no.2 to appoint the petitioner on the post of peon under said rules in Judgeship Sonebhadra.
3. The brief facts leading to the case are that one Sri Gopi Chandra Rajak working as peon in the office of District Judge, Sonebhadra died on 1.6.2002 while in service, leaving behind him Smt. Munna Devi his widow, Smt. Anita Devi married daughter, Sri Pramod Kumar Rajak, Sri Rajesh Kumar Rajak and Sri Kamlesh Kumar Rajak minor sons. At the time of death of Gopi Chandra Rajak the petitioner was only 12 years 11 months and 6 days old and was not eligible to get appointment under Dying-in-Harness Rules, therefore, his mother Munna Devi moved an application on 31.7.2002 contained in Annexure-1 of the writ petition, whereby she had sought her compassionate appointment on a suitable post under Dying-in-Harness Rules. Thereupon on the basis of report of 1st Additional District Judge, the District Judge, Sonebhadra (respondent no.2) had passed an order on 9.12.2002, stating that under the recruitment rules educational qualification for Class 4th post is 8th class pass whereas Smt. Munna Devi has not at all received any education and under the provisions of Dying in Harness Rules, the educational qualification cannot be relaxed. It was also stated that the elder son of Smt. Munna Devi namely Pramod Kumar Rajak (petitioner) is near about 14 years old and after 4 years he will be eligible for such appointment hence two options were given to Smt. Munna Devi; first was that if Smt. Munna Devi insists for her appointment then the permission shall be taken from the Hon'ble High Court and second was that if she will like her son namely Pramod Kumar Rajak to be appointed as dependent of her husband his claim can be considered after completion of 18 years of his age on the expiry of 4 years only, accordingly she was asked to give her consent within 15 days. True copy of the order of respondent no.2 dated 9.12.2002 is on record as Annexure-2 of the writ petition.
4. It is stated that in pursuant to the said order, Smt. Munna Devi moved an application before the respondent no.2 on 23.12.2002 requesting that if she is not eligible for appointment as dependent of her husband then she gives her consent to appoint her son Sri Pramod Kumar Rajak, after completion of his 18 years age. Thereafter Smt. Munna Devi moved another application on 21.3.2006 as per direction of respondent no.2 dated 9.12.2002 requesting to appoint her son (petitioner) as dependent of her husband when he would attain the age of majority i.e. 18 years by 5.6.2007. On 22.6.2006 the District Judge had passed an order on the said application directing to put up the same before him when the petitioner would attain the age of 18 years. A copy of said application moved by the mother of the petitioner bearing order dated 22.6.2006 passed by the District Judge, Sonebhadra is on record as Annexure-4 of the writ petition.
5. It is stated that on completion of his age of 18 years the petitioner has also moved an application on 3.7.2007 before the respondent no.2 for his appointment under Dying-in-Harness Rules, annexing his High School pass mark sheet and High School certificate and other certificates including no objection certificate of his mother. Thereupon on the same day the District Judge directed the Incharge Officer Nazarat Civil Judge (Senior Division), Sonebhadra to submit report and after going through the report dated 21.8.2007 submitted by Incharge Officer, Nazarat/Civil Judge (Senior Division), Sonebhadra, he has passed the impugned order dated 22.8.2007 served to the petitioner on 12.9.2007, rejecting the claim of compassionate appointment of the petitioner. True copy of application of the petitioner along with no objection certificate filed by his mother and true copy of the impugned order dated 22.8.2007 are on record as Annexures-5, 6 and 7 of the writ petition.
6. It is submitted that immediately after attaining the age of majority the petitioner filed his representation on 3.7.2007 only one month 2 days later on expiry of five years period of limitation provided under rule from the date of death of his father. Although the proviso of said rules further empowers the Government to consider the compassionate appointment even after expiry of said prescribed period of 5 years from the date of death of the deceased Government servant by relaxing the aforesaid time limit, but respondent did not consider the said proviso of rules and illegally and arbitrarily rejected the representation filed by the petitioner by impugned order dated 22.8.2007 holding that the same was not maintainable.
7. It is stated that the father of the petitioner died on 1.6.2002 leaving behind his widow, one daughter and three sons. All the three sons are unemployed and still unmarried, therefore, a lot of financial and social liability are lying upon the petitioner but for want of employment the petitioner is unable to bear the liability suddenly fell upon him. It is also stated that the mother of the petitioner Smt. Munna Devi is a patient of heart and diabetes and lot of money was spent in her treatment. Besides this, two other brothers of the petitioner namely Rajesh Kumar Rajak and Kamlesh Kumar Rajak are students of Class 11th and 8th respectively and there is no other source of income for survival of the family, therefore, the petitioner is entitled to get the compassionate appointment on the post of peon.
8. A detailed counter affidavit has been filed in writ petition on behalf of District Judge, Sonebhadra, whereby the action taken by the District Judge has been sought to be justified mainly on the ground that when the mother of the petitioner has moved representation for the compassionate appointment of the petitioner on the dates mentioned in the writ petition including on 21.3.2006 the petitioner was minor at that time and not eligible for appointment on the post in question and the petitioner has moved the application for his compassionate appointment first time on 3.7.2007 after expiry of five years period of limitation prescribed for appointment under Rule 5 of Dying in Harness Rules and power of relaxation after the aforesaid period lies with the State Government but the petitioner did not make any prayer for forwarding his application to the State Government, therefore, no appointment could be given to him under the said rules.
9. For ready reference the stand taken by the respondents in paragraphs 6, 7, 13 and 16 of the counter affidavit is disclosed as under:-
"6. That on the application of Shri Pramod Kumar Razak the then District Judge, called for the report from Officer In-Charge-Nazarat/Civil Judge (S.D.). Report was submitted by Officer In-Charge-Nazarat/Civil Judge (S.D.) on 21.8.2007. On the report of Officer In-Charge Nazarat/Civil Judge (S.D.) an order was passed by the then District Judge dated 22.8.2007, in which the then District Judge rejected the application of Shri Pramod Kumar Razak mainly on the ground that the applicant Pramod Kumar Razak did not attain the age of majority by 31.5.2007. It is relevant to mention here that the applicant's father Late Gopi Chand Razak died on 1.6.2002 and the applicant had to apply within the period of 5 years i.e. on or before 31.5.2007, but applicant moved an application on 3.7.2007. Thus, it is clear that the applicant moved the application in question after the expiry of limitation period.
7. That it is relevant to mention here that as per said Rules, only the Stage Government has power to relax the period of limitation. And it is still open for the petitioner to move an application before the State Government for relaxing the period of limitation as prescribed under above mentioned Rules.
13. That in reply to the contents of paragraph 12 of the writ petition, it is stated that it is correct to say that Smt. Munna Devi gave her consent on 23.12.2002 for her son's appointment. It is also true that Smt. Munna Devi filed an application on 21.3.2006 for considering the appointment of her son. But on that date petitioner was minor. It is relevant to mention here that the father of the petitioner did on 1.6.2002 and the period of limitation to move an application under rule 5 of U.P. Dying in Harness Rules, 1974 (Anx. 9 to w.p.) was available to him till 31.5.2007 only. He attained the age of majority on 4.6.2007. Thus, before 31.5.2007 he was not eligible for said appointment as the petitioner was minor. Hence there is no illegality in the order passed by the then District Judge dated 22.8.2007. The true copy of the order passed by the then District Judge is being annexed herewith and marked as Annexure No.C.A.2 to this counter affidavit. The true copy of this order which has been filed as Annexure no.7 to writ petition is incomplete as two lines since 31.5.2007 to 31.5.2007 are missing in it.
16. That in reply to the contents of paragraph 16 of the writ petition, it is stated that the petitioner did not attain the age of majority as on 31.5.2007, but he attained the age of majority on 4.6.2007, which is also admitted by the petitioner's mother in her letter dated 3.7.2007. It is further stated that in application given by the petitioner on 3.7.2007, there was no prayer to forward the application to State Government for the purpose of relaxing the limitation period. It is pertinent to mention here that the petitioner still has right to move the application to the State Government as to relaxation of the limitation period."
10. In given facts and circumstances of the case, learned counsel for the petitioner has submitted that at any view of the matter the application moved by the petitioner and his mother could not be rejected by the District Judge, Sonebhadra on the ground that the same was not maintainable at all. At the most, when the last application dated 21.3.2006 moved by the mother of the petitioner was found to be incompetent on the said date on the ground that at that time the petitioner could not attain the age of majority i.e. 18 years/minimum age prescribed for Government employment, the appointing authority could have kept the aforesaid application of mother of the petitioner pending till he attains the age of majority i.e. till 4.6.2007 and thereafter would have considered the case of the petitioner on merit. It is no doubt true that by that time the application could be barred by time by 3-4 days after expiry of prescribed period of five years limitation from the date of death of father of the petitioner but having regard to the financial hardship of the family of the deceased employee the matter could be referred before the High Court for relaxing the period of limitation as provided under the proviso (1) of Rule 5 (1) of Dying in Harness Rules.
11. Learned counsel for the petitioner further submitted that while considering the financial condition of family of deceased Govt. servant for the purpose of compassionate appointment, payment of family pension, leave encashment, provident fund, insurance etc. to the widow of deceased Govt. servant should not be taken into account and may not be made ground for refusal of such appointment. In support of his aforesaid submissions, he has placed reliance upon the several decisions, which will be referred at relevant places hereinafter.
12. Thus, in view of rival submissions of the parties, first question arises for consideration is that as to whether in given facts and circumstances of the case the District Judge, Sonebhadra was justified in rejecting the claim of compassionate appointment of the petitioner holding it to be not maintainable?
13. In order to answer this question, it is necessary to notice some case law and statutory provisions having material bearing on the question in controversy involved in the case. In Sushma Gosain V. Union of India - AIR 1989 SC 1976, the Apex Court held that ".....in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant."
[emphasis supplied]
14. The aforesaid decision was also followed in Phoolwati Vs. Union of India-AIR 1991 SC 469 wherein it has been held that " the reason for making compassionate appointment, which is exceptional, is to provide immediate financial assistance to the family of a government servant who dies in harness, when there is no other earning member in the family.
15. In Umesh Kumar Nagpal Vs. State of Haryana & others, (1994) 4 S.C.C. 138, while dealing with the nature and object of the compassionate appointment, the posts against which, and period under which such appointment may be offered, in para 2, of the decision the Hon'ble Apex Court held that the whole object of granting compassionate employment is thus 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 entitle 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. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate ground, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned."
16. In para 6 of the said decision Hon'ble Apex Court, further held that; "For these very reasons, the 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 lapse of time and after the crisis is over."
17. In State Bank of India and another Vs. Raj Kumar (2010) 11 SCC 661, the applicability of old scheme for compassionate appointment, vis-a-vis new substituted scheme for ex gratia payment, was under consideration before the Apex Court. While dealing with the nature and scope of compassionate appointment, and impact of new scheme for such appointment, in paragraphs 8 of the said decision the Apex Court held as under:
"8. . . . . . . . .The claim for compassionate appointment is therefore traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme. An appointment under the scheme can be made only if the scheme is in force and not after it is abolished/withdrawn. It follows therefore that when a scheme is abolished, any pending application seeking appointment under the scheme will also cease to exist, unless saved. The mere fact that an application was made when the scheme was in force, will not by itself create a right in favour of the applicant.
18. Thus, in view of legal position stated by Hon'ble Apex Court it is necessary to examine the scheme of Dying in Harness Rules applicable to the Government employees and employees of Subordinate judiciary with necessary modifications.
19. Rule 5 of Dying in Harness Rules deals with eligibility criteria and time limit for making application for compassionate appointment of members of family of deceased Government servant. The same is quoted as under:-
"5. Recruitment of a member of the family of the deceased.- (1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules if such person-
22. From a plain reading of the provisions of Rule 5 (1) of the Dying-in-Harness Rules, it is clear that in a case Government servant dies in harness after commencement of the said rules and the spouse of deceased government servant is not already employed under Central Government or a State Government or a Corporation owned or controlled by Central Government or a State Government one member of his family, who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by Central Government or State Government, shall be given suitable employment in government service on a post except the post which is within the purview of U.P. Public Service Commission in relaxation of the normal recruitment rules, if such person - (i) fulfils educational qualification prescribed for the purpose; (ii) is otherwise qualified for government service; and (iii) makes the application for employment within five years from the date of death of government servant. The proviso attached with the said rule further provides that where the State Government is satisfied that the time limit fixed for making application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner. In other words where the State Government is satisfied that aforesaid time limit of 5 years fixed for making application for employment from the date of death of government servant causes undue hardship in any particular case it may dispense with or relax the requirement of said time limit of 5 years, as it may consider necessary for dealing with the case in a just and equitable manner. Thus, in my opinion, if the situation of any particular case so warrants, the period of 5 years limitation provided for making application for employment can be further extended beyond the said period.
23. Rule-8 deals with the relaxation from age and other requirements, but it specifically stipulates that the candidate seeking appointment under these rules must not be less than 18 years at the time of appointment, which implies that minimum age limit of 18 years prescribed for Government employment cannot be relaxed by the authority, whereas upper age limit fixed for employment can be relaxed in suitable cases. Similarly in view of Rule-5 (1) of Dying-in-Harness Rules, the educational qualification prescribed for the posts can also not be relaxed by the authorities concerned. However, other procedural requirement for selection such as written test or interview by any selection committee or authority shall be dispensed with.
24. Thus, a harmonious construction of the aforestated rules, reveals that in case, a member of family of deceased Government servants makes an application under Dying in Harness before he attains the age of 18 years or an application is moved on his behalf before attaining his age of 18 years, although such candidate cannot be given appointment unless he attains the minimum prescribed age of Government employment i.e. 18 years, but his application should not be rejected outrightly, instead thereof the proper course of action would be that his application should be kept pending and be considered on merit only when he/she attains 18 years age, provided he attains the age of 18 years within a period of 5 years time limit fixed for making application for compassionate appointment from the date of death of government servant and if it is found that five years prescribed time limit for making application for employment from the date of death of government servant has expired prior to the date of attaining his 18 years age, then the case of such applicant should be considered on attaining his age of majority i.e. on completion of his 18 years age under the proviso of Rule 5 (1) of Dying in Harness Rules only, which empowers the State Government to relax the aforesaid time limit of five years and for that purpose, in my opinion, it is to be seen that as to whether family of deceased Government servant still continues to suffer financial distress or hardship occasioned by death of bread earner so as to relax the period within which application for employment could be made and family can not be relieved from such financial crisis or distress unless compassionate appointment is given to a member of the family of deceased government servant. (Emphasis)
25. While considering the content and import of proviso to Rule-5(1) of Dying-in-Harness Rules a Division Bench of this court in Vivek Yadav Vs. State of U.P. and others, 2010 (7) ADJ page 1 in para 7 and 8 of the decision has observed as under:-
"7. ........ The proviso, in our opinion, which confers power to relax the delay in making an application within five years, also must be read to include consideration of an application even after expiry of 5 years if the applicant was a minor at the time of death of the deceased employee and makes an application within reasonable time of attaining majority.
8. The power to relax itself contemplates that in a particular case, the matter has to be dealt with in a just and equitable manner. In other words, the test to be applied is does the family of the deceased continue to suffer financial distress and hardship occasioned by the death of the breadwinner so as to relax the period within which the application could be made. These are matters of fact, which the competent authority would have to consider. In the instant case, what we find is that the application was rejected merely because it was beyond the time prescribed."
26. Now next question arises for consideration is that as to whether while examining the financial stringency or hardship of the family of deceased government servant for the purpose of compassionate appointment, the payment of terminal dues like family pension, gratuity, leave encashment, provident fund, general insurance to the family of deceased government servant can be taken into account or can be made ground for refusal of such employment to a member of the family of deceased government servant?
27. This question has directly come under consideration of this court earlier at several occasions. In State Bank of India and others Vs. Ram Piyarey and others, (2001) 2 U.P.L.B.E.C. 1597, a Division Bench of this court in paras 8 and 11 of the decision observed as under:-
"8. It is well settled that 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. In our opinion, the learned Single Judge was correct in holding that the receipt of family pension by the widow and a sum of Rs. 1.42 lacs paid to widow after deducting the loan cannot be taken to be a good ground for rejecting the case for appointment on compassionate ground. It is common knowledge that the widow is entitled to family pension and other benefits in the event her husband dies in harness. If the plea of the Bank is accepted then no appointment can be made on compassionate ground and the scheme of the Bank shall have no meaning. We are of the view that the learned Single Judge was quite justified in allowing the writ petition.
28. The aforesaid decision has been followed by this court in Sharda Devi (Smt.) Vs. District Magistrate/Collector, Ghaziabad and others, 2003 (2) U.P.L.B.E.C. 1134 and these decisions are binding upon this court, therefore, this court can not take different view in the matter.
29. Thus, in view of afore-stated legal position, it is clear that while considering the case of compassionate appointment of dependent of government servant, question of financial hardship or stringency, which the family of deceased government servant faces, has to be considered and while doing so, it is to be seen that whether the family of deceased government servant suffers financial distress or hardship occasioned by death of bread earner and family cannot be relieved from such financial crisis without giving compassionate appointment to any member of the family of deceased Government servant. However, while considering the financial stringency it is not open for the appointing authority to take into account the terminal dues of deceased government servant payable to his family for the refusal of compassionate appointment to a member of his family, otherwise the provisions of Dying in Harness Rules would be rendered meaningless for the reason that widow of deceased Government servant always receives family pension and other service benefits like gratuity, leave encashment, G.P.F. and other terminal dues on account of death of Government servant. It is no doubt true that while ascertaining the financial condition of the family of deceased government servant the current income of the family accrued from different sources should be ascertained and be taken into account, thereupon, if it is found that said income is not sufficient to maintain and to tied over financial crisis of the family caused on account of sudden death of employee, in such situation, in my considered opinion, it is not open for the appointing authority to refuse compassionate appointment to a member of family of deceased government servant on that count, if the dependent of the government servant is otherwise eligible and qualified for the post.
30. At this juncture it is also to be noted that while applying the Dying-in-Harness Rules to the employees of High Court and Sub-ordinate courts, the provisions of said Rules should be applied with necessary modification. Thus, in case of compassionate appointment in Sub-ordinate courts, the power to relax the rules, in my opinion, shall lie with the High Court instead of State Government for the reason that sub-ordinate courts are under direct control and supervision of High Court and not the State Government.
31. Now applying the aforesaid legal proposition in given facts and circumstances of the case, I find that it is not in dispute that on the date of death of Sri Gopi Chandra Rajak on 1.6.2002, the petitioner was only 12 years 11 months and 6 days old and was not eligible to get appointment under Dying-in-Harness Rules, therefore, his mother Munna Devi moved an application on 31.7.2002 seeking her appointment on compassionate basis on a suitable post but since she was not qualified for any post in the District Judgeship, therefore, an option was given to her to seek compassionate appointment of his elder son (petitioner) as dependent of her husband on completion of his 18 years age on expiry of four years. Accordingly, she has given her consent for compassionate appointment of his son (petitioner) vide applications dated 23.12.2002 and 21.3.2006. On the said application dated 21.3.2006 District Judge, Sonebhadra had passed an order on 22.6.2006 directing to put up the same before him when the petitioner would attain the age of 18 years. But on completion of his age of 18 years the application of petitioner for compassionate appointment dated 3.7.2007 was rejected by the District Judge vide impugned order dated 22.8.2007 on the ground that the same was not maintainable.
32. It is not in dispute that period of limitation for making an application for compassionate appointment under rule 5(1) of Dying-in-Harness Rules is prescribed as five years from the date of death of government servant. The aforesaid period of limitation from the date of death of Gopi Chandra Rajak expired on 31.5.2007. The petitioner has attained the age of majority i.e. 18 years of his age on 4.6.2007 only after four days later on expiry of the aforesaid period of 5 years limitation. Thus, the application for compassionate appointment of the petitioner moved by his mother on 21.3.2006 could be considered by the appointing authority on 4.6.2007 when he attained the age of 18 years by treating the same to be beyond time by four days only or the application for compassionate appointment moved by the petitioner on 3.7.2007 could be considered to be barred by time by one month and 3 days only, but the aforesaid applications moved by the petitioner and his mother could not be rejected on the ground that they were not maintainable at all, instead thereof, in my considered opinion, the proper course of action was that the District Judge, Sonebhadra should have referred the matter before High Court in its administrative side under the proviso of Rule-5(1) of Dying-in-Harness Rules for relaxation of 5 years period of limitation by stating the financial condition of family of deceased employee and in such situation the High Court in administrative side could examine that as to whether in given facts and circumstances of the case, the petitioner was justified in making such belated application for compassionate appointment beyond period of five years from the date of death of his father and five years time limit fixed for making such application causes undue hardship in dealing with the case of the petitioner in just and equitable manner and that the time limit fixed for making application for compassionate appointment should be relaxed in exercise of the power under the proviso of Rule 5(1) of Dying-in-Harness Rules. But the aforesaid course of action was not adopted by the District Judge, Sonebhadra and rejected the application of compassionate appointment of petitioner, therefore, in my opinion, the impugned action taken by the District Judge cannot be held to be justified.
33. Thus, further question arises for consideration of this court is that as to whether in given facts and circumstances of the case, the matter should be remitted back to the District Judge, Sonebhadra for referring the same before this court in administrative side for relaxation of the time limit provided for making application for compassionate appointment under the proviso of Rule 5(1) of Dying-in-Harness Rules, or not? In this connection, it is to be noted that since from the date of death of Government servant a period of more than 9 years have already passed and the petitioner has also attained the age of 18 years much before on 4.6.2007 i.e. more than 4 years ago and there are sufficient material on record on the basis of which his case can be decided on merit and remitting the matter back either before the District Judge or to the administrative side of this court, would further cause considerable delay in disposal of the matter, therefore, in order to cut short, and to provide immediate financial assistance to the family of deceased employee, it would be appropriate to decide the case of the petitioner on merit, instead of remitting the matter back to the District Judge.
34. Thus, on the basis of material available on record, I find that it is not in dispute that Gopi Chandra Rajak while working as peon in the office of District Judge, Sonebhadra died leaving behind him Smt. Munna Devi his widow, Smt. Aneeta Devi married daughter, Sri Pramod Kumar Rajak (petitioner), Sri Rajesh Kumar Rajak and Sri Kamlesh Kumar Rajak sons. It is further not in dispute that all the three sons of deceased Gopi Chandra Rajak are still unemployed and unmarried and his widow Smt. Munna Devi is also patient of heart and diabetes causing huge financial loss. It is also not in dispute that two brothers of petitioner namely Rajesh Kumar Rajak and Sri Kamlesh Kumar Rajak are students and there is no other source of income for survival of the family of deceased government servant. In my opinion, a meagre amount of payment of family pension and/or other service benefits to widow of deceased employee would not relieve the family from financial distress or stringency occasioned by sudden death of Gopi Chandra Rajak, thus I am of the opinion that the family of deceased government servant is still facing financial distress or hardship and cannot be relieved from such financial distress unless the compassionate appointment is given to the petitioner. In this backdrop of the case, since the petitioner has attained 18 years of his age after expiry of 5 years limitation from the date of death of his father, therefore, in my opinion, he could not move application for compassionate appointment before attaining his age of majority or the application moved by the mother of petitioner on 21.3.2006 for his compassionate appointment could not be considered on merit earlier to the date of completion of 18 years of his age. Accordingly, the aforesaid application moved by petitioner for compassionate appointment on 3.7.2007 is treated to be within time and the application is liable to be considered on merit. In this connection, it is to be further noted that the petitioner undisputedly has passed High School, therefore, he has educational qualification for appointment on the post of peon i.e. class IV post in District Judgeship, Sonebhadra. Therefore, the District Judge, Sonebhadra is directed to consider the claim of compassionate appointment of the petitioner and appoint him on a class IV post in the judgeship by satisfying himself about his character and medical fitness after verification of his original records of educational qualification within four weeks from the date of production of certified copy of this order before him. In case, there exists no vacancy against class IV post in judgeship, the District Judge is directed to make appointment of the petitioner on a supernumerary post of peon in District Judgeship.
35. With the aforesaid observation and direction, writ petition succeeds and is allowed.