IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11706 of 2009 PURNIMA DEVI, wife of late Rakesh Kumar Shrivastava, resident of village Bhojpurwa, P.S. Majha Garh, District Gopalganj ... Petitioner Versus 1. THE STATE OF BIHAR through Principal Secretary, Human Resources Development Department, Bihar, Patna 2. The Director, Primary Education, Bihar, Patna 3. The Divisional Commissioner, Saran Division at Chapra 4. The Regional Deputy Director of Education, Saran at Chapra 5. The Collector cum Chairman, District Compassionate Appointment Committee, Gopalganj 6. The District Superintendent of Education, Gopalganj ... Respondents ----------- 5. 6.12.2010 Having heard counsel for the parties as also taking into account the previous order dated 22.11.2010 reading as follows: “ Having heard learned counsel for the petitioner and counsel for the State as also taking into account the detailed order passed on 7.11.2009 and 29.10.2010, this Court is not satisfied with the show-cause reply filed by the respondent, District Superintendent of Education, Gopalganj who, in fact, was all along holding the post of District Superintendent of Education, Gopalganj from the date the recommendation was made by the District Compassionate Appointment Committee for appointing the petitioner on Class-3 post. The object of compassionate appointment, being very sanguine, namely, to redress the untold misery inflicted upon the family of 2 the deceased employee, this Court would hold that whatever action was ultimately taken by the District Superintendent of Education, Gopalganj leading to the appointment of the petitioner and now on the post of Nagar Shikshak vide order dated 20.11.2010, could have been taken by the District Superintendent of Education, Gopalganj even in the year 2008 itself. There is thus no justifiable reason for delaying the appointment of the petitioner for a period of almost two years. Additionally, this Court would find that the explanation given by the District Superintendent of Education, Gopalganj in his show- cause also does not synchronize with the stand taken by the respondent no.4. It is not the case of the District Superintendent of Education, Gopalganj that he was not aware of filing of this writ application and in fact counsel for the State, on the basis of his own official records, would point out that letter was written to the District Superintendent of Education, Gopalganj informing about the filing of the writ application immediately on receipt of the copy on 21.8.2009. The District Superintendent of Education, Gopalganj, in fact, if he had filed his counter affidavit at that point of time enclosing some of the documents now being filed by him in his defence, probably his bonafide could have been explained. Such counter affidavit, in fact, had to be virtually obtained from him as would be clear from the earlier order of this Court dated 29.10.2010, which reads as follows:- “The District Compassionate Committee had recommended for appointment of the petitioner on 3 compassionate ground and the same was communicated to the District Superintendent of Education, as contained in memo no. 887 dated 28.07.2008, vide Annexure-2. Inspite of the same, petitioner did not receive any appointment letter and, therefore, she moved this Court. When the case was heard on 07.11.2009, learned Counsel for the State was directed to file counter affidavit showing reasons for non- issuance of appointment letter. The respondents were also directed to issue appointment letter in favour of the petitioner before filing the counter affidavit and make statement in their counter affidavit regarding the issuance of appointment letter. Learned Counsel for the respondents submits that this order was communicated to all the concerned respondents including the District Superintendent of Education, Gopalganj promptly. However, no counter affidavit has been filed by the District superintendent of Education and only a counter affidavit of Regional Deputy Director of Education has been filed in Court today. In the said counter affidavit, it is stated that from the records it appears that after receiving the recommendation of the District Compassionate Committee, the District Superintendent of Education, Gopalganj had sought for some guidelines from the Regional Deputy Director of Education, Saran vide letter no. 471 dated 18.09.2008 which was returned by the Regional Deputy Director of Education, Saran vide letter no. 921 dated 22.10.2008 categorically stating that in view of the recommendation made by the District Compassionate Committee the appointment of the petitioner had 4 to be made at the district level itself. Thereafter, in the light of the order dated 07.11.2009 of this Court, the Regional Deputy Director of Education, Saran again reminded the District Superintendent of Education, Gopalganj vide letter no. 1428 dated 15.12.2009 to ensure appointment of the petitioner . It is also stated that in terms of the Department’s letter no. 2755 dated 22.06.2009, petitioner had herself requested for appointment as Nagar Shikshak vide her letter dated 22.02.2010. Considering her such request District Superintendent of Education, Gopalganj vide letter dated 10.03.2010 asked for consent from the petitioner. It is stated in the letter that the consent of the petitioner has not been received till now. It is further stated that the Regional Deputy Director of Education has again reminded the District Superintendent of Education, Gopalganj vide his letter dated 09.06.2010 asking him to take initiative at his level in the matter of appointment of the petitioner on compassionate ground. Learned counsel for the petitioner, on instructions from the petitioner, submits that the petitioner has neither received any letter from the District Superintendent of Education, Gopalganj asking for her consent nor has received the appointment letter till now. In the circumstances, let the District Superintendent of Education, Gopalganj appear in court in this case on 19th of November, 2010 and file a show cause as to why action may not be taken against him for sitting over the matter for so long and he may not be directed to pay the salary of the petitioner from the date he received the letter of the Regional 5 Deputy Director of Education dated 28.07.2008 replying to his quer4y till date, from his own pocket.” This Court, therefore, even after noticing the fact that the petitioner has ultimately been sought to be appointed by order dated 20th November, 2010 would direct the District Superintendent of Education, Gopalganj to file his further show-cause as to why he be not held guilty for causing impediment in the dispensation of justice by not filing the counter affidavit as also the proof that he had sought to comply the first order of this Court dated 7.11.2009 in letter and spirit, which reads as follows:- “The petitioner has been died on 26.05.2007 while working as Assistant Teacher at Government Primary School at Manjharia, Gopalganj. She applied for compassionate appointment on 20.09.2007 and the District Compassionate Appointment Committee has made a recommendation for petitioner’s appointment on class- III post vide Memo No. 887 dated 28.07.2008 since the date of recommendation till date no appointment letter has been issued. Counsel for the petitioner submits that she is running from pillar to post to get appointment letter in her favour which has not been issued despite the fact that the recommendation has already been made in favour of the petitioner in the year 2008. Put up this matter after three weeks within first five cases. Counsel appearing for the State will file counter affidavit, showing reason for non-issuance of appointment letter. The respondents are directed to issue appointment letter in favour of the petitioner before filing the counter affidavit and make statement in their counter 6 affidavit regarding the issuance of appointment letter.” List this case after two weeks as a tied up matter on 6th of December, 2010 when the District Superintendent of Education, Gopalganj, who is present today, shall again remain present. this Court is now satisfied from the supplementary show cause filed today that the delay in appointment of the petitioner on compassionate ground cannot be solely attributed to the District Superintendent of Education, Gopalganj, alone especially when it was also the petitioner herself who had earlier been insisting for her appointment only on a Class III clerical post and could give her consent for appointment on the post of teacher for the first time only on 20.2.2010 in response to the letter of the D.S.E., Gopalganj dated 10.12.2008. Thus, if the petitioner had exhausted considerable time only for giving her consent for appointment on the post of teacher and her appointment could be made within few months of her giving such consent, this Court now in the changed scenario when the appointment of the petitioner has already been made on 7 20.11.2010 and she has also joined the assignment can not hold that it is the D.S.E., Gopalganj who would be liable to pay salary to the petitioner for the period 28.7.2008 onwards for the delayed in making appointment of the petitioner. Admittedly the D.S.E., Gopalganj could not have issued an appointment letter on his own especially when the Compassionate Appointment Committee had recommended for her appointment on a Class III post which could not be honoured due to want of vacancy. In subsequent correspondences of the authorities and awareness of the petitioner of her likelihood of being appointed on the post of teacher would only go to show that had the D.S.E., Gopalganj been a bit more vigilant probably the appointment of the petitioner could have been made if not at any point of time at least in the month of March, 2010, but then ultimately dead-lock of consent was resolved. Thus, when the delay in appointment of the petitioner being on various circumstances for which D.S.E. alone 8 cannot be held responsible, this Court would now drop the proceedings by only awarding cost of Rs. 10,000/- to be paid by the D.S.E., inasmuch as it can not be denied that the petitioner was compelled to file a writ application, whereafter only her appointment was made as has been noted in the earlier order. In this context it has to be also kept in mind that the D.S.E. was the controlling authority of the husband of the petitioner and therefore, even if he had no direct power of making appointment as per recommendation of the District Compassionate Appointment Committee, he had to atleast take immediate action to ensure that the widow petitioner was given means of sustenance for supporting herself as her dependent children. The object of compassionate appointment being one for meeting sudden crisis on account of the death of the bread earner, the controlling authority cannot take an indifferent attitude by remaining a mute spectator even after a recommendation was made by the 9 District Compassionate Appointment Committee. There being no conscious effort at least on the part of the D.S.E., Gopalganj from the date the recommendation was made by the District Compassionate Appointment Committee at least till the month of February, 2010 and if his earlier letter which was sent at the point of time when the District Compassionate Appointment Committee had not even made any recommendation is ignored it would still lead to the position that at the least the D.S.E. had failed to do the needful and which he had ultimately done after this Court had taken the matter seriously and had passed an order for appointment of the petitioner. Moreover the delay in filing of the counter affidavit by the D.S.E. for a peiod of more than two years leading to continued harassment to the petitioner would also make him liable to pay cost of Rs. 10,000/- to the petitioner. The cost of Rs. 10,000/- therefore must be paid to the petitioner by Mr. Rakesh Kumar Choudhary, D.S.E., 10 Gopalganj, within a period of one month from today. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/