Madras High Court
P. Umalakshmi vs State Bank Of India on 12 July, 2012
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12-7-2012 CORAM: THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMAR Writ Petition No.558 of 2007 M.P.No.1 of 2007 1. P. Umalakshmi 2. P. Parthasarathy 3. P. Om Prakash .. Petitioners Vs. 1. State Bank of India, rep.by its Chairman, 16th Floor, Corporate Centre, New Administrative Building, Madama Cama Road (Nariman Point), Back Bay Reclamation, Mumbai 400 021. 2. State Bank of India, Rep.by its Chief General Manager, Local Head Office, Circletop House, 16, College Lane, Chennai 600 006. 3. Deputy General Manager, State Bank of India, Cantonment, Tiruchirapalli 1. 4. Circle Development Officer, State Bank of India, Local Head Office, 16, College Lane, Chennai 600 006. .. Respondents Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of Declaration that the action of the respondent Bank in depriving the petitioner pension due to the Late Ponnan, who died on harness while in service on 9.4.1998 and consequently direct the first and second respondents to sanction pension to the petitioner on and from 10.4.1998 together with interest at 12% per annum and ex-gratia compensation in lieu of compassionate appointment that is being extended by the bank to the staff, if the bank is not willing to provide compassionate appointment either to the petitioner or to her children. For Petitioner : Mr.S.Vaidyanathan For Respondents : Mr.P.D.Audikesavalu O R D E R
The prayer in the writ petition is to issue a writ of declaration that the action of the respondent bank in depriving the first petitioner's pension due to Late Ponnan, who died in harness on 9.4.1998 and direct the respondents 1 and 2 to sanction pension to the petitioner on and from 10.4.1998 together with interest at 12% per annum and ex-gratia compensation in lieu of compassionate appointment that is being extended by the bank to the staff, if the bank is not willing to provide compassionate appointment either to the petitioner or to her children.
2. The brief facts necessary for disposal of the writ petition are as follows:
(a) According to the first petitioner, she is the widow of Late Ponnan, who died on 9.4.1998. First Petitioner claims that the said Ponnan married her on 14.9.1990 as per Hindu Rites and Customs.
(b) The said Ponnan was employed in the State Bank of India from 2.1.1978 and died on 9.4.1998 while in service as Assistant (Accounts) at Karur Branch.
(c) It is the contention of the first petitioner that prior to her marriage, first petitioner's husband viz., Late Ponnan married one Pitchiamma on 13.6.1979 and on 6.3.1980, Pitchiamma expressed her unwillingness to live with Ponnan and thereafter they started living separately and on 2.9.1988 petitioner's husband and the said Pitchiamma got divorce as per custom in the presence of Panchayatdars and elder members of the family.
(d) After the said customary divorce on 2.9.1988, Ponnan married the first petitioner on 14.9.1990. First Petitioner's husband filed divorce petition in H.M.O.P.No.37 of 1992 by abundant caution and got a decree of divorce on 7.9.1992 from the Sub Court, Karur. It is the contention of the first petitioner that she was the only spouse living with the said Ponnan till his death. First Petitioner gave birth to two male children on 7.10.1991 and 28.3.1993, petitioners 2 and 3 herein.
(e) First Petitioner being the widow of the said Ponnan, applied for compassionate appointment, as provision was available to appoint the legal heir of the Bank staff on compassionate ground, at that time.
(f) Application submitted seeking compassionate appointment in the year 1999 was rejected on 19.1.2000. Thereafter first petitioner submitted representation seeking compassionate appointment to her first son, namely second petitioner herein on 5.9.2000, which was also rejected on 21.10.2000 on the ground that the offer of appointment in the case of minor would be kept open up to the maximum period of six years from the date of death of the employee i.e., in this case upto 9.4.2004 and second Petitioner attained majority only on 7.10.2009. Therefore the request was rejected as there was no possibility of attaining majority before expiry of six years from the date of death of said Ponnan.
(g) Again first petitioner submitted a representation for appointment on compassionate ground on 10.7.2002 and till date no action is taken on the said representation seeking compassionate appointment. Petitioner's sons were sanctioned with family pension and according to the petitioner after their attaining the age of 25 years, they will not be getting family pension and therefore petitioner is entitled to get family pension as the widow of the deceased employee viz., Ponnan from 10.4.1998.
(h) According to the first petitioner, the rejection of request seeking compassionate appointment on the ground that the first petitioner was the second wife and as on the date of her marriage with the said Ponnan, the first marriage of Ponnan was subsisting, was without noticing the customary divorce prevailed. The marriage between the first petitioner's husband Ponnan and his first wife Pitchiamma got divorced in the year 1988 and thereafter only the marriage between the first petitioner and the said Ponnan had taken place. Thus the first petitioner is entitled to get family pension as the widow of in the alternative one of the sons of the first petitioner is bound to get appointment on compassionate grounds.
3. The respondents have filed counter affidavit contending as follows:
(i) One V.Ponnan who was employed in the State Bank of India died in harness on 9.4.1998 and on the basis of the legal heirship certificate issued by the Tahsildar showing that the first petitioner was the wife of the said Ponnan and two children viz., P.Parthasarathy born on 9.10.1991 and P.Omprakash born on 28.3.1993, the gratuity and provident fund amounts payable to the said Ponnan were disbursed, which were received by the first petitioner. Family pension on monthly basis was also sanctioned to the first petitioner treating her as wife of Late Ponnan and the same was paid till February, 2000.
(ii) While considering the request of the first petitioner seeking compassionate appointment, the bank realised that the said V.Ponnan had earlier contracted a marriage with one Pitchiamma, which was dissolved by a decree of divorce only on 7.9.1992 in H.M.O.P.No.37 of 1992 passed by the Sub Court, Karur and during subsistence of the said marriage, first petitioner married the said Ponnan on 14.9.1990 and the same is in violation of Sections 11 and 17 of the Hindu Marriage Act, 1955. Therefore, the first petitioner cannot be treated as legally wedded wife of the said Ponnan and consequently her request for compassionate appointment was rejected and payment of family pension was also stopped from March, 2000.
(iii) The sons of the first petitioner are however continued to be treated as legitimate children of the said Ponnan in terms of Section 16 of the Hindu Marriage Act, 1955 and the elder son was substituted to receive family pension from March, 2000 as provided in the pension scheme. The earlier payment of terminal benefits and family pension till February, 2000 to the first petitioner has to be treated as the amounts utilised for the benefit of minor children.
(iv) The request seeking compassionate appointment to the elder son, second petitioner herein, who was then a minor, could not be considered as the offer of appointment could be kept open only for the period of six years from the date of death of concerned employee, lapsed on 9.4.2004 and the elder son attained majority only on 7.4.2009. The legal heirship certificate produced by the first petitioner from the Tahsildar is not a conclusive proof of the status of the first petitioner.
(v) The divorce decree having been obtained only on 7.9.1992, the alleged marriage of the first petitioner with the said Ponnan on 14.9.1990 was during the subsistence of the first marriage. First Petitioner's date of birth being 26.10.1974, she had not attained the requisite age of 18 years as on 14.9.1990 to marry the said Ponnan on 14.9.1990.
(vi) As per the State Bank of India Employees' Pension Fund Rules, pension can be disbursed,
(a) to the widow/widower upto her/his death or re-marriage, whichever is earlier;
(b) failing (a) above, to the eldest surviving son in order of their birth upto the age of 25 years or he/she is gainfully employed, whichever is earlier;
(c) in case the beneficiary is an unmarried daughter, until she attains the age of 25 years or is gainfully employed or married in case of daughter, whichever is earlier;
(d) this process will continue till the last beneficiary attains the age of 25 years or is gainfully employed or married in case of daughter, whichever is earlier.
(vii) First Petitioner's son viz., P.Parthasarathy is receiving family pension, which he would be receiving till he attains the age of 25 years, or getting gainfully employed, whichever is earlier. Thereafter the second son viz., P.Omprakash would be eligible to receive family pension till he attains the age of 25 years or gainfully employed, whichever is earlier. The family pension is continuously paid from the date of demise of the said Ponnan without any interruption. Hence the claim made by the first petitioner to grant her family pension from 10.4.1998 onwards with interest at 12% per annum is untenable and the first petitioner is not entitled to claim family pension by operation of law. As per the scheme, petitioners 2 and 3 are not eligible to get compassionate appointment.
4. The learned counsel for the petitioners at the time of arguments submitted that even though first petitioner has prayed for payment of family pension and ex-gratia compensation in terms of compassionate ground appointment and if the Bank is not willing to provide compassionate appointment either to the first petitioner or to her children, he is not very particular in pressing the prayer for compassionate appointment and the prayer may be restricted to the claim for the sanction of family pension to the first petitioner.
5. The learned counsel for the petitioners further submitted that the marriage between the first petitioner's husband Late V.Ponnan and the said Pitchiamma having been divorced as per custom as early as on 2.9.1988, the marriage between the first petitioner and the said V.Ponnan performed on 14.9.1990 is legal and therefore the first petitioner got the status of the wife of the said V.Ponnan from the said date onwards. Subsequent divorce petition filed in H.M.O.P.No.37 of 1992 before the Sub Court, Karur was only to get the seal of approval of the divorce by abundant caution and the divorce decree granted on 7.9.1992 will relate back to 2.9.1988. Therefore the contention of the respondents that the first petitioner married the said Ponnan during the subsistence of the first marriage is unsustainable and the first petitioner is entitled to get family pension as widow of the deceased V.Ponnan. The learned counsel also relied on certain judgments in support of his contentions.
6. The learned counsel appearing for the respondents on the other hand submitted that the first petitioner has not proved before the competent Court, the customary divorce allegedly taken place between V.Ponnan and the said Pitchiamma on 2.9.1988 and instead of proving the customary divorce, V.Ponnan has chosen to file H.M.O.P.No.37 of 1992 before the Sub Court, Karur to dissolve the marriage between himself and the said Pitchiamma under section 13(1)(i-b) of the Hindu Marriage Act, 1955 and an exparte decree was passed by the Sub Court, Karur, as the said Pitchiamma failed to appear when the matter was called on 7.9.1992. The learned counsel also submitted that even the petition and affidavit filed in support of the HMOP is not filed before this Court to find out as to whether any pleading at all was made by the said V.Ponnan regarding the alleged customary divorce said to have taken place on 2.9.1988. Therefore the marriage between the first petitioner's husband and the said Pitchiamma can be treated as dissolved only from 7.9.1992. The first petitioner having married the said V.Ponnan on 14.9.1990 i.e, two years prior to the dissolution of marriage through a Court of law, the marriage between the first petitioner and the said V.Ponnan cannot at all be treated as valid marriage to claim that the first petitioner is the wife of the said V.Ponnan. The learned counsel also submitted that after the divorce decree dated 7.9.1992, there was no marriage between the first petitioner and the said V.Ponnan and the same is also not the case of the first petitioner. Therefore, according to the learned counsel, the first petitioner has no right to pray for the sanction of family pension as widow of Late V.Ponnan. The first petitioner also cannot seek compassionate appointment to her son as the application has to be made within six years from the date of death of the Bank employee. The learned counsel also relied on the judgment of the Supreme Court reported in (2010) 9 SCC 484 : JT 2010 (9) SC 67 (Mahendra Nath Yadav v. Sheela Devi) in support of his contentions and prayed for dismissing the writ petition.
7. I have considered the rival submissions made by the learned counsel for the petitioners as well as learned counsel for the respondents.
8. The points arise for consideration in this writ petition are as to whether the first petitioner can claim family pension after the demise of her alleged husband viz., V.Ponnan, on the facts and circumstances of the case and whether the petitioners 2 and 3 can claim compassionate appointment to any one of them after 9.4.2004.
9. The deceased V.Ponnan was employed in the State Bank of India and at the time of his death on 9.4.1998 he was serving as Assistant (Accounts) at Karur Branch. Admittedly, the deceased V.Ponnan married one Pitchiamma on 13.6.1979. According to the first petitioner, the said marriage between V.Ponnan and Pitchiamma was dissolved by custom on 2.9.1988. The first petitioner claims to have married the said V.Ponnan on 14.9.1990 and gave birth to two sons viz., P.Parthasarathy on 7.10.1991 and Omprakash on 28.3.1993. The said V.Ponnan died on 9.4.1998 and while in service the said V.Ponnan filed H.M.O.P.No.37 of 1992 before the Sub Court, Karur and prayed for dissolution of the marriage between him and the said Pitchiamma under Section 13(1)(i-b) of the Hindu Marriage Act, 1955. The ground raised in HMOP was desertion. In the said petition filed in H.M.O.P.No.37 of 1992, the said Pitchiamma was described as wife of V.Ponnan, son of Late Venkatachalam Pillai. The Sub Court, Karur passed an exparte decree as the respondent in the said HMOP viz., Pitchiamma was called absent and therefore a decree was passed as prayed for, the translated version of which runs as follows:
"SUB COURT, KARUR Present: Thiru A.Selvadoss.,M.A.,B.L.,Sub Judge Monday, the 7th day of September, 1992 H.M.O.P.No.37/92 V. Ponnan, S/o.Venkatachalam, No.53, Bharathiyar Street, Vengamedu, Karur Town & Taluk .. Petitioner Vs. Pitchiamma, W/o.Ponnan, D/o.Late Shanmugam Pillai, No.12, Nainar Koil Lane, Malaikottai North Street, Trichy Town & District. .. Respondent The Petitioner prays that the marriage solemnized between him and the respondent may be dissolved u/s.13(1)(i-b) of the Hindu Marriage Act, since the respondent had deserted him for more than 2 years continuously.
Date of filing of the petition : 7-9-1992 Fixed Court Fee of Rs.10/- has been paid.
When this petition came up before me for final hearing M/s.V.Ponnusamy, Advocate appeared on behalf of the petitioner and since the respondent was called absent, the respondent was set exparte and this Court, on this day, doth order and decree as follows:-
That the marriage solemnized between the petitioner and the respondent, be and hereby, is dissolved."
It is curious to note from the exparte decree that the divorce petition viz., H.M.O.P.No.37 of 1992 was filed on 7.9.1992 and the exparte decree was also passed on the same date, that was on 7.9.1992. Thus, it is not clear how notice could have been served on the respondent in HMOP viz., Pitchiamma on the date of filing of HMOP itself and how the case was called for final hearing on the same day of filing and how the exparte decree could have been passed by the Sub Court, Karur.
10. Further, in the second additional typed set filed by the petitioners a document is filed to show that sum of Rs.35,000/- was paid to the said Pitchiamma by V.Ponnan on 26.6.1992 towards full and final settlement of maintenance payable to the said Pitchiamma. The said fact also creates a genuine doubt regarding the claim made by the first petitioner that the marriage between the V.Ponnan and Pitchiamma got divorced on 2.9.1988 as per their custom. If really the alleged divorce by custom had taken place on 2.9.1988, there should have been a full and final settlement regarding maintenance on that date itself and there may not be any necessity to pay a sum of Rs.35,000/- to Pitchiamma by V.Ponnan on 26.6.1992.
11. Petitioners have not filed the affidavit and petition in HMOP No.37 of 1992 filed before the Sub Court, Karur seeking dissolution of marriage between V.Ponnan and the said Pitchiamma. Even in the document dated 26.6.1992, filed showing the settlement of maintenance, it is stated that the settlement regarding maintenance was arrived at with Panchayatdars pursuant to which a sum of Rs.35,000/- was received. The said document was registered at the office of the Sub Registrar (West), Karur, as Document No.217, Book No.4 on 26.6.1992. Thus, it is evident that the alleged customary divorce said to have taken place between V.Ponnan and Pitchiamma on 2.9.1988 is unbelievable. Neither the first petitioner nor V.Ponnan have chosen to establish the customary divorce said to have taken place between V.Ponnan and Pitchiamma on 2.9.1988 through the competent Court of law by adducing oral and documentary evidence. The decree of divorce obtained on 7.9.1992 was only an exparte decree, wherein there was no factual proof of the alleged customary divorce said to have taken place on 2.9.1988. In the absence of any such positive proof on the part of V.Ponnan or Pitchiamma or at the instance of the first petitioner and having regard to the fact that the divorce decree was obtained by V.Ponnan only on 7.9.1992, the first petitioner's alleged marriage with V.Ponnan on 14.9.1990 is not a valid marriage in the eye of law, particularly when the same is prohibited under Sections 5(i), 11 and 17 of the Hindu Marriages Act, 1955, which read as follows:
"Sec.5 Conditions for a Hindu Marriage.- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-
(i) neither party has a spouse living at the time of the marriage;
............
Sec.11. Void marriages. Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.
Sec.17. Punishment of bigamy. Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code (45 of 1860) shall apply accordingly."
Thus the first petitioner cannot claim the status as wife of V.Ponnan on the basis of the alleged marriage said to have taken place on 14.9.1992 due to the subsistence of the earlier marriage between V.Ponnan and Pitchiamma, which got dissolved only on 7.9.1992 as per the exparte decree on the file of Sub Court, Karur.
12. (a) Similar issue arose before the Honourable Supreme Court in the decision reported in JT 2010 (9) SC 67 : (2010) 9 SCC 484 (Mahendra Nath Yadav v. Sheela Devi). In the said case the issue was as to whether while pleading the customary divorce, the fact should be established before the competent forum or not. In the said case also, even though there was a pleading that there was dissolution of marriage through Panchayatdars as per custom, having regard to the fact that subsequently a divorce OP was filed under section 13 of the Hindu Marriage Act, 1955 and divorce decree was ordered, the Supreme Court disbelieved the contention raised regarding customary divorce. The facts of the said case squarely apply to the facts of this case. In paragraph 7 (in SCC) the Supreme Court held thus, "7. The High Court has rightly held that dissolution of marriage through Panchayat as per custom prevailing in that area and in that community permitted cannot be a ground for granting divorce under Section 13 of the 1955 Act. We fully agree with the said decision for the reason that in case the appellant wanted a decree on the basis of customary dissolution of marriage through Panchayat held on 7-6-1997, he would not have filed a petition under Section 13 of the 1955 Act. Filing this petition itself means that none of the parties was of the view that the divorce granted by the Panchayat was legal. In view of the above, we do not see any reason to interfere with the well-reasoned judgment of the High Court."
(b) In the decision reported in (2002) 2 SCC 637 (Yamanaji H. Jadhav v. Nirmala) the question arose regarding the acceptance of the documents relied on by the parties, by executing a deed of divorce without proving the customary practice being followed in the area in question. The Supreme Court held that the Trial Court was obliged to frame an issue whether there was proper pleading by the party contending existence of customary divorce in the community to which the party belongs and whether such customary divorce and compliance with the manner of formalities attendant thereto was in fact established in the case on hand to the satisfaction of the Court. The Supreme Court having noticed that there was no such issue framed and established, set aside the order of the Trial Court confirmed in appeal by the High Court and remitted the matter to the trial court to decide such an issue and decide the same. In paragraph 7 the Supreme Court held thus, "7. ......... In the instant case, we have perused the pleadings of the parties before the trial court and we do not find any material to show that prevalence of any such customary divorce in the community, based on which the document of divorce was brought into existence was ever pleaded by the defendant as required by law or any evidence was led in this case to substantiate the same. It is true that in the courts below the parties did not specifically join issue in regard to this question and the lawyers appearing for the parties did orally agree that the document in question was in fact in accordance with the customary divorce prevailing in the community to which the parties belonged but this consensus on the part of the counsel or lack of sufficient pleading in the plaint or in the written statement would not, in our opinion, permit the court to countenance the plea of customary divorce unless and until such customary divorce is properly established in a court of law. In our opinion, even though the plaintiff might not have questioned the validity of the customary divorce, the court ought to have appreciated the consequences of there not being a customary divorce based on which the document of divorce has come into existence bearing in mind that a divorce by consent is also not recognisable by a court unless specifically permitted by law. Therefore, we are of the opinion to do complete justice in this case it is necessary that the trial court be directed to frame a specific issue in regard to customary divorce based on which the divorce deed dated 26-6-1982 has come into existence and which is the subject-matter of the suit in question. In this regard, we permit the parties to amend the pleadings, if they so desire and also to lead evidence to the limited extent of proving the existence of a provision for customary divorce (otherwise through the process of or outside court) in their community and then test the validity of the divorce deed dated 26-6-1982 based on the finding arrived at in deciding the new issue."
(c) Again in the decision reported in (2005) 9 SCC 407 (Subramani v. M.Chandralekha) similar issue regarding the customary divorce pleaded was considered by the Supreme Court. In paragraphs 9 and 10 the issue was discussed and applying the judgment cited supra viz., (2002) 2 SCC 637, the Supreme Court set aside the Judgment of this Court reported in (2002) 1 MLJ 320 (M.Chandralekha v. Subramani) and allowed the civil appeal.
13. From the above referred decisions of the Honourable Supreme Court and in the light of the statutory provision contained in Section 29(2) saving customary form of divorce, the party pleading the form of customary divorce is bound to raise the issue specifically before the competent court and prove the same by adducing oral and documentary evidence and get a judicial pronouncement regarding the proof of customary divorce. In such contingency only the alleged divorce by custom can be accepted by the Court.
14. As already held in the said case, neither the first petitioner's husband nor the said Pitchiamma or the petitioner, who is now claiming that the marriage between V.Ponnan and Pitchiamma was put an end to by customary divorce on 2.9.1988, proved the said customary divorce. First Petitioner has raised only a vague plea of customary divorce and there is no positive proof available to accept the said contention. The said issue also cannot be decided in this writ petition as the jurisdiction under Article 226 of the Constitution of India is very limited, where disputed questions of fact cannot be decided.
15. Issue regarding sharing of family pension between the two persons claiming to be the wives of deceased Government servant, at the rate of 50% every month, which agreement was entered into between the parties, can be enforced through Court of law and the Accountant General of Tamil Nadu can be compelled to grant 50% family pension to each of them, came up before this Court and in paragraphs 7 to 10 the Division Bench of this Court held thus, "7. In this context, the Tribunal referred to the judgment of the Supreme Court in Rameshwari Devi v. State of Bihar [(2002) 2 SCC 431] and relied on paragraph 14 of the judgment, which reads as follows:-
Para 14: "It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this Act, children of a void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolves firstly on heirs in clause (1) which include the widow and son. Among the widow and son, they all get shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described as a widow of Narain Lal, her marriage with Narain Lal being void. The sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal. That is, however, the legal position when a Hindu male dies intestate. Here, however, we are concerned with the family pension and death-cum-retirement gratuity payments which are governed by the relevant rules. It is not disputed before us that if the legal position as aforesaid is correct, there is no error with the directions issued by the learned Single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment."
8. Mr. S.M.Subramaniam, learned counsel for the petitioner submitted that an agreement was reached on 25.02.1995 between the petitioner and the fifth respondent, before the Panchayatdar stating that out of the terminal dues payable to late Ravindran, such as Family Welfare Fund, Special PF, Gratuity, Encashment of Earned Leave, GPF, the fifth respondent will receive 40% and the petitioner and her children will receive 60%. Out of the pension payable, each will receive 50% of the same every month and that the petitioner is entitled to get compassionate appointment.
9. The said agreement was filed before the District Munsif Court for passing appropriate decree. But before the District Munsif Court, the official respondents were given up and the private arrangement between the petitioner and fifth respondent was the basis for decreeing the suit. Such a decree will not bind on the official respondents. In any event, we do not find anything illegality or irregularity in the order passed by the Tribunal and it is perfectly in accordance with the right of the parties as provided under the Tamil Nadu Pension Rules, 1978. If the parties are having any private arrangement, it is for them to work out their rights in terms of their private arrangement and certainly, the State cannot be bound by such arrangements made de hors the Rules.
10. Under these circumstances, we do not find any illegality or irregularity in the order passed by the Tribunal. Accordingly, the writ petition is dismissed. ......."
16. The decision relied on by the learned counsel for the petitioners in support of his contentions are clearly distinguishable on facts and in none of the cases the Supreme Court held that in the absence of proof of customary divorce between the first wife and a person, the person marrying second time (when the first wife is living), can be treated as a wife and claim benefits of family pension after the demise of the Government Servant.
17. As far as the claim of compassionate appointment of the first petitioner's son, the respondent bank passed an order on 21.10.2000, which reads as follows:
"Adhoc appointment on compassionate grounds to dependants of employees who die in harness - Shri V. Ponnan, Assistant (Accounts) (deceased) With reference to your application requesting for adhoc appointment to your son Master Parthasarathy, we are unable to consider your request on the following reasons:
"As per extant norms, the offer of appointment may be kept open upto a maximum period of six years from the date of death of the employee i.e., upto 09.04.2004 only. As the date of birth of Master Parthasarathy is 7.10.1991 and he attains majority only on 7.10.2009, he is not eligible for claiming adhoc appointment."
This is for your information."
From the perusal of the said order it is clear that the scheme of the Bank is to keep the offer only for a period of six years from the date of the death of the employee i.e, upto 9.4.2004. The first petitioner's eldest son viz., second petitioner herein, having born on 7.10.1991, he attains majority only on 7.10.2009. Thus, the second petitioner is not eligible to get appointment on compassionate grounds.
18. The Supreme Court in the decision reported in (2011) 4 SCC 209 ( Bhawani Prasad Sonkar v. Union of India) held that compassionate appointment cannot be made in the absence of rules or regulations issued by the Government or Public authority. The request is to be considered strictly in accordance with the governing scheme and no discretion is left with any authority to make compassionate appointment, dehors the scheme.
19. Considering all the above facts and circumstances of this case and on law as well as the above cited judgments of the Honourable Supreme Court and of this Court, I am of the view that the petitioners have not made out any case to issue any of the declaration as sought for in this writ petition.
There is no merit in the writ petition and the same is dismissed. No costs.
vr To
1. The Chairman, State Bank of India, 16th Floor, Corporate Centre, New Administrative Building, Madama Cama Road (Nariman Point), Back Bay Reclamation, Mumbai 400 021.
2. The Chief General Manager, State Bank of India, Local Head Office, Circletop House, 16, College Lane, Chennai 600 006.
3. The Deputy General Manager, State Bank of India, Cantonment, Tiruchirapalli 1.
4. The Circle Development Officer, State Bank of India, Local Head Office, 16, College Lane, Chennai 600 006