IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6459 of 2008 PRAMOD KUMAR, son of late Rambriksha Ram, resident of Sundarpur Ambedkar Colony, P.S. Sultanganj, P.O. Mahendru, District Patna … Petitioner Versus 1. THE STATE OF BIHAR 2. The District Compassionate Appointment Committee, Patna through its Chairman, P.O.+ P.S.+ District Patna 3. The District Magistrate, Patna 4. The Superintendent Patna Medical College and Hospital, Patna … Respondents ----------- 3. 2.5.2011 Heard counsel for the parties. The prayer of the petitioner in this writ application is confined to considering his case for appointment on compassionate ground on the basis that his mother late Radhiya Devi while working as lady Sweeper in Patna Medical College and Hospital had died on 3.7.2000 in harness and the petitioner being dependent son and also eligible for appointment had filed his application before the Superintendent of Patna Medical College and Hospital but no final decision had been taken on the same despite a favourable recommendation made by the District Compassionate Appointment Committee in the meeting held on 16.1.2004. Learned counsel for the petitioner would submit that since the Government 2 policy laid down in the circular dated 5.10.1991 does not give any further liberty to the appointing authority to sit over the recommendation made by the District Compassionate Appointment Committee, the resultant delay in appointment of the petitioner on compassionate ground has to be not only condemned by this Court but the petitioner will also be entitled for direction for his appointment on compassionate ground. When this case was placed after a period of exactly three years of its being filed, there was no counter affidavit and this Court was constrained to seek personal appearance of the Superintendent of Patna Medical College and Hospital vide its order dated 22.4.2011. Subsequently a counter affidavit has been filed with a copy served on the counsel for the petitioner on 28.4.2011 wherein it has been stated that though the District Compassionate Appointment Committee had recommended the case of the petitioner for appointment on compassionate ground but it had made it clear in its such 3 recommendation that the certificate of educational qualification of the petitioner has to be verified by the appointing authority, namely, Superintendent of P.M.C.H. It has been further explained in the counter affidavit that in course of enquiry as with regard to genuineness of certificate produced by the petitioner it was found that such school was not in existence and thereafter the matter was referred for opinion of the District Superintendent of Education, Patna. The D.S.E., Patna, however, by his letter dated 11.5.2005 (Annexure D) had informed the Superintendent, P.M.C.H., that the school in question from which the petitioner had claimed to have passed Class VIII examination as shown in his transfer certificate was a non-governmental school and the students of such school were not appearing in the district level examination conducted under the surveillance of the State Government. The Superintendent has also explained somehow the matter relating to the petitioner had still remained pending even when his case was placed before a 4 Committee constituted by him in his letter No. 8578 dated 29.11.2005. Mr. Rajiv Roy, learned counsel for the State, however, fairly submits that the proceeding of the four man committee dated 3.12.2005 as contained in Annexure ‘G’ though contains the name of the petitioner but since he was never appointed, the same may not be relevant for any purpose much less for establishing that the case of the petitioner pursuant to the recommendation of the Committee dated 16.1.2004 was ever considered for his appointment on compassionate ground. From the pleadings on record, this much becomes clear that the petitioner is a dependent of a deceased employee dying in harness and his application was filed within prescribed time whereafter the District Compassionate Appointment Committee also had found him eligible in all respect for being appointed on a Class IV post in P.M.C.H. and had accordingly made its recommendation on 16.1.2004 and had also sent it to the Superintendent, P.M.C.H., being the appointing authority of Class IV post, for 5 passing an appropriate order. Thus the delay of more than seven years in verification of the educational qualification certificate of the petitioner which even otherwise had to be made by the appointing authority before issuing the appointment letter and/or acceptance of his joining cannot be held to be bonafide. The reference to an enquiry report dated 1.9.2004 as contained in Annexure ‘B’ being such an enquiry by the learned counsel for the State may have some relevance though it was not directly related to the case of the petitioner. This submission that since the petitioner also had produced a school leaving certificate issued by Baudh Madhya Vidhalaya, Musallahpur, Patna about which there were already similar claim from other persons seeking appointment in P.M.C.H. on Class-IV posts and the said school was found not in existence in course of enquiry of the Deputy Superintendent and his team cannot make the petitioner disentitled for appointment on compassionate ground as there is no specific finding that the petitioner's such certificate dated 31.12.1984 of his having 6 passed Class-VIII examination in the year 1984 was forged. This Court has also carefully perused the report dated 24.8.2004 contained in Annexure ‘B’ to the counter affidavit which surprisingly contains signature of four members in the date of 1.9.2004 and it is also not clear as to for what purpose this report was prepared on 24.8.2004, specially when the connected document namely letter No. 4636 dated 16.6.2004 containing terms of reference of such enquiry has not been produced in the counter affidavit. More over from the reading of Annexure ‘B’ it does not transpire that the same was directly in relation to making an enquiry for compassionate appointment of the petitioner. As noted above a direct reference infact in this regard concerning the petitioner seems to have been made only by a letter of Superintendent P.M.C.H. dated 10th of March, 2005 (Annexure C) wherein quoting the certificate number and the date of certificate of the petitioner a pointed query was made from the District Superintendent of Education, Patna as to 7 whether such certificate was a genuine certificate from a school claimed by the petitioner. The D.S.E., Patna in his answer to the said query vide his letter dated 16.6.2004 (Annexure-D) did not say that the school namely Baudh Madhya Vidyalaya was not in existence or that the certificate of the petitioner was forged or false, rather a tangent reply was given by him that though the school was in existence, its students were not appearing in Class VIII examination. Thus, at least on the basis of Annexure ‘D’ no final determination could have been made as with regard to non- fulfilment of eligibility condition for appointment on Class IV post. It has to be kept in mind that while the Government had laid down the qualification for the post of Class IV employee as would be apparent from the Govt. circular dated 23rd September, 2002 it did not prescribe that such Class VIII examination has to be passed from a Government School or a Government aided school. In that view of the matter, the petitioner could not have been refused 8 appointment on the ground that though his certificate was genuine but he had not passed Class VIII examination from the Government school or a Government aided school and therefore not fulfilled qualification prescribed for appointment on a Class IV post. In that view of the matter, as the respondents till date have not taken any final decision in a period of more than seven years and in fact for which they have also no valid explanation except inefficiency on the part of the previous Superintendents of P.M.C.H., Patna, this Court would direct the present Superintendent of P.M.C.H., Patna to take his final decision on the recommendation made by the District Compassionate Appointment Committee within a period of two months from the date of receipt/ production of a copy of this order. It is however made clear that the Superintendent of P.M.C.H. shall not reject the case of the petitioner on the ground that the petitioner had passed his Class VIII examination from a school which was 9 neither aided by the Government nor was a Government school. At the same it will always be open for the Superintendent of P.M.C.H. to make his own enquiry with regard to genuineness of the certificate produced by the petitioner and in case he finds any flaw in such certificate, he after giving a notice and/or opportunity of hearing to the petitioner before rejecting the case of the petitioner on any ground would proceed to dispose of his claim for appointment on compassionate ground by a speaking order. Such notice and/or opportunity of hearing to the petitioner must be given to him both on account of inordinate delay caused by the Superintendent in taking a final decision despite his filing of this writ petition as also on account the recommendation in his favour by the District Compassionate Appointment Committee. The entire exercise, therefore, relating to taking a final decision in the manner indicated above must be completed by the Superintendent in the prescribed time limit of two months from the date of receipt/production of a copy of this order. 10 With the aforementioned observation and direction, this application is disposed of. The personal appearance of the Superintendent of P.M.C.H. is also dispensed with. (Mihir Kumar Jha,J.) Surendra/