IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5956 of 2005 BHUPENDRA KUMAR son of Late Bechan Mahto, resident of village- Sherpur, Police Station- Sadar, District- Muzaffarpur. …. Petitioner. Versus 1. THE STATE OF BIHAR 2. The Chief Engineer, Tirhut Nahar Pramandal, Kalambagh Road, Muzaffarpur. 3. The Executive Engineer, Tirhut Nahar Pramandal, Ratwara, Muzaffarpur. 4. District Magistrate-cum-Chairman, District Appointment Committee, Muzaffarpur. 5. Manoj Kumar son of late Bechan Mahto, resident of village- Sherpur, Police Station- Sadar, District- Muzaffarpur. ….. Respondents. with CWJC No.15107 of 2006 MANOJ KUMAR, son of late Bechan Mahto, resident of village- Kayasth Tolla Sherpur, P.S. Sadar, District Muzaffarpur. … petitioner. Versus 1. THE STATE OF BIHAR 2. Chief Engineer, Water Resources Dept., Tirhut Nahar Pramandal, Kalambagh Road, Muzaffarpur. 3. Executive Engineer, Water Resources Dept. Tirhut Nahar Pramandal, Ratwara, Muzaffarpur. 4. District Magistrate-cum-Chairman, District Compassionate Appointment Committee, Muzaffarpur. 5. Bhupendra Kumar, son of late Bechan Mahto, resident of village Sherpur, P.S. Sadar, District Muzaffarpur. … Respondents. ----------- 10. 31.03.2011 Heard learned counsel for the parties. These two writ applications arise out of the claim for compassionate appointment on the ground of death of the father of both petitioners, namely, Bechan 2 Mahto. While in writ application, CWJC No. 5956 of 2005, Bhupendra Kumar the second son from the second wife of deceased employee is the petitioner, in the other writ petition CWJC No. 15107 of 2006, Manoj Kumar the sole son from the first deceased wife of the deceased employee dying in harness is the petitioner. There is hardly any scope for dispute on the issue of compassionate appointment inasmuch as one of the dependent of the deceased employee had to be considered for appointment on compassionate ground but then in the present case the two step brothers have created a situation in which either of them have not been appointed till date and the very purpose of compassionate appointment of providing immediate relief to the dependent members of the deceased employee has been frustrated. Admittedly, the father of the petitioners had died on 28.3.2003 and in view of the claim and counter claim by the sons from the first wife and sons from the second wife of the deceased employee the authorities had found it difficult to take a final decision. Records would bear it out whereas the 3 petitioner Manoj Kumar had staked his claim for appointment on compassionate ground by stating that he was the eldest son of the deceased employee, the mother of the petitioner Bhupendra Kumar being the second wife on the other hand had filed an application requesting for appointment of the petitioner Bhupendra Kumar on the ground that Manoj Kumar right from the beginning was leaving separately in his Nanihal inasmuch as the death of first wife of the deceased employee had taken place immediately after the birth of the petitioner Manoj Kumar. The second wife, the mother of the petitioner Bhupendra Kumar therefore had projected a case that it was she and her seven children out of the second marriage with late Bechan Mahto the deceased employee who were required to be rehabilitated by providing job to the petitioner, Bhupendra Kumar. It appears that when Manoj Kumar had moved this Court in his earlier writ application, CWJC No. 4048 of 2004, certain direction were issued by this Court in the order dated 19.1.2005 for considering the case of the petitioner Manoj Kumar and in pursuance 4 thereof the Government had taken a conscious decision that as per the scheme of compassionate appointment the second wife of deceased employee i.e. mother of the petitioner Bhupendra Kumar will be entitled for compassionate appointment. When said government instructions were sent to the Executive Engineer for its compliance by the office of Chief Engineer, the Executive Engineer on his own by eliminating the case of widow the second wife had proceeded to recommend the case of the petitioner Manoj Kumar the son from the first wife of the deceased employee on the ground that the widow had no educational qualification whereas Manoj Kumar had read upto Class VIII and had fulfiled eligibility criteria for being appointed on class IV employees. The petitioner Bhupendra Kumar and his mother the second wife however were aggrieved on account of the aforesaid unilateral decision taken by the Executive Engineer and therefore when they had moved the authority protesting against the proposed appointment of Manoj Kumar, a further enquiry was carried out during which it was detected that Manoj 5 Kumar in fact had not passed Class-VIII examination and the certificate of educational qualification produced by him was forged. Thereafter, a criminal case was instituted against Manoj Kumar being Muzaffarpur Sadar P.S. Case No. 334 of 2005 dated 9.12.2005 and the respondents in their counter affidavit have taken a plea that as the criminal case is pending they have not taken any further decision for appointment of either of the petitioners. Counsel for the petitioner, Manoj Kumar has submitted that the whole story of the petitioner Manoj Kumar producing false certificate is itself unbelievable and as a matter of fact the said forged document has been inserted by some one in the records in order to deprive him from being appointed on compassionate ground. He has further submitted that the petitioner Manoj Kumar has no means of sustenance and he is finding of difficult to support himself by doing majdori on daily wages. He would therefore submit that this Court should direct the petitioner Manoj Kumar to be appointed subject to the result of the criminal case and in that event he would 6 undertake to support all the family members of the deceased employee i.e. the widow, the second wife of late Bechan Mahto, the mother of the petitioner Bhupendra Kumar as also dependents seven children out of the second marriage of the deceased employee. Counsel for the petitioner Bhupendra Kumar, on the other hand, has submitted that as per the government circular and policy there would be no question of appointment of Manoj Kumar on compassionate ground till the criminal case is finally disposed of inasmuch as in the Government Circular dated 5.10.1991 there is clear provision for denying appointment on compassionate ground to any person who is facing criminal charge. He would also submit that while from the first marriage of the deceased employee, Manoj Kumar himself is the only son but from second marriage not only the petitioner at least his two other minor brothers and two unmarried sisters apart from the widow have to be supported. He would accordingly submit that since the widow now is not only aged about 60 years but even otherwise incapable of working, this Court should direct for appointment of 7 petitioner Bhupendra Kumar on compassionate ground. This matter was heard earlier and counsel for the parties were asked to take instruction as to whether in the event, the petitioner Bhupendra Kumar being appointed, will support Manoj Kumar eldest son of the deceased employee and his step brother by parting with at least one-fourth of his salary that may be paid to him by way of being appointed on compassionate ground. Mr. Nirmal Kumar, learned counsel appearing on behalf of the petitioner Bhupendra Kumar having obtained instructions has submitted that not only the petitioner but his all family members i.e. widow and the dependent minor sons and unmarried daughters have no difficulty in undertaking to maintain their step brother Manoj Kumar by providing one- fourth of salary quantified at Rs. 2750/- per month that may be paid to petitioner Manoj Kumar. Counsel for the petitioner Manoj Kumar has also submitted that if one-fourth salary of the petitioner Bhupendra Kumar after his appointment on compassionate ground is given to the petitioner Manoj 8 Kumar, he will give up his claim for compassionate appointment. In such a situation, when this Court would find that the very object of compassionate appointment has been frustrated to a large extent only on account of ongoing dispute between the two step brothers and there is also no denial to this aspect that the petitioner Bhupendra Kumar is fully eligible for being appointed on compassionate ground, this Court with the consent of petitioners, in the interest of justice would dispose of both the writ petitions by giving following directions:- (i) The petitioner, Manoj Kumar shall withdraw his case for appointment on compassionate ground as also any claim for his share in death cum retirement benefit of Late Bechan Mahto by filing an application before the competent authority within a period of one month from the date of receipt of this order. (ii) After the petitioner Manoj Kumar will withdraw his case for appointment on compassionate ground, the authority shall proceed to examine and take a final decision for appointment of the petitioner Bhupendra Kumar as early as possible preferably within a period of three months 9 from the date of withdrawal of the claim for compassionate appointment by the petitioner Manoj Kumar. (iii) In the event the petitioner Bhupendra Kumar would be appointed on compassionate ground, he will pay a sum of Rs.2750/- per month from his monthly salary and to that extent, the competent authority shall deduct the aforementioned amount from the monthly salary of the petitioner Bhupendra Kumar and deposit the same in a bank account of petitioner Manoj Kumar which would be withdrawn by him on month to month basis. It is made clear that after receiving payment of Rs.2750/- per month from the salary of Bhupendra Kumar, the petitioner Manoj Kumar will have no other claim whatsoever in any of the other death cum retirement benefit to be received on account of death of late Bechan Mahto which of course would be without affecting his right in his ancestoral property. With the aforementioned observations and directions, these writ applications are disposed of. kanchan/- ( Mihir Kumar Jha, J.)