The rights of a child born are regarded by reference to the moment of conception and not of birth and the unborn child in the womb if born alive is treated as actually born for the purpose of conferring on him benefits of inheritance

HINDU SUCCESSION ACT,1956 – CASE LAW – Section 20

PriyeshVasudevan v. Shameena

Bench:J Kurian Joseph, J K.T.Sankaran

Facts:

• Vasudevan, the father of the appellant, was a Sanskrit teacher in school .Vasudevan died on 10.4.1980 while in service. Appellant, the child in the womb was born on 11.12.1980.
• He submitted an application for compassionate appointment under the Compassionate Employment Scheme, which was made applicable to teachers of aided schools under Rule 51B of Chapter XIVA of the Kerala Education Rules. The application was made on 29.11.2000, within two years of his attaining majority.
• The appellant had the requisite qualification for appointment. The Manager of the School stated that the appellant is not eligible for appointment under the Dying-in-Harness Scheme.

Issue: 

Whether a posthumous child of a teacher in an aided School, who died in harness, is entitled to get appointment under the Compassionate Employment Scheme on his attaining majority?

Contentions raised by Respondent:

• There must be some proximity between the date of death and the date of application for compassionate appointment. The right conferred on the dependents of the deceased employee for compassionate appointment is neither absolute nor unlimited.
• There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there are some specific provisions. The very basis of compassionate appointment is to see that the family gets immediate relief.

Contentions raised by Appellant:

• A child in the womb would be a 'dependent' under the Scheme and that a posthumous child is entitled to the benefit of the Compassionate Employment Scheme on his attaining majority, provided, the application is filed within the period provided in Clause 19 of the scheme.

Held:

As the scheme is intended to help the bereaved family of the deceased Government servant, the application for employment assistance should be processed at all stages and at all levels with a sense of urgency. Thus, we hold that the appellant is entitled to the benefit under the Compassionate Employment Scheme. Therefore, we direct the first respondent Manager and the Assistant Educational Officer, Balussery to see that the appellant is given a deemed appointment in the first vacancy against which approval is granted by the Assistant Educational Officer.