IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4148 of 2007 SUSHIL KUMAR, son of late Upendra Kumar, resident of village + P.O. Itasang, P.S. Bihar Sharif (Rahui), District Nalanda … Petitioner Versus 1. THE STATE OF BIHAR through the Commissioner cum Secretary, Department of Industries, Govt. of Bihar, Patna 2. The Director, Department of Industries, Govt. of Bihar, Patna 3. The General Manager, District Industries Centre, Nalanda 4. The Additional Director, Department of Industries, Bihar, Patna 5. The District Magistrate, Nalanda … Respondents ----------- 6. 26.4.2011 Heard. In this writ petition the petitioner has prayed for a direction to the respondents to appoint him on compassionate ground taking a plea that his father a government servant of the Industries Department and working in District Industries Centre, Nalanda had died in harness on 2.4.2004. The Respondent however taken a plea that since the appointment of the father of the petitioner was not made legally on a sanctioned post the claim of the petitioner was rejected by an order dated 2.7.2007 as contained in Annexure-1 to the counter affidavit. 2 In view of the fact such order was passed during the pendency of the writ application and had no mention of the father of the petitioner appointed illegally against an unsanctioned post, this court on 1.4.2011 had passed the following order: "Counsel for the State having found herself that the two counter affidavits do not explain the reason of the petitioner being disentitled for compassionate appointment would seek a week time to file a supplementary counter affidavit stating therein as to the nature of the post held by the father of the petitioner, and whether such post irrespective of being temporary or permanent was sanctioned or not." When the said aspect was not explained this court on 11.4.2011 had passed the following order. "Despite indulgence given to the counsel for the State there has been no supplementary counter affidavit on the issue as to whether the father of the petitioner was working against a temporary sanctioned post or permanent sanctioned post. The reliance placed by the counsel for the State on paragraph 12 of the counter affidavit will be of no avail, inasmuch as it only talks of appointment of the father of the petitioner without following prescribed manner but against the sanctioned post. If the post was sanctioned the respondents could not have denied consideration of the case of the petitioner for appointment on compassionate 3 ground, inasmuch as the circular dated 5.10.1991 does not talk of only existence of permanent sanctioned post for the deceased employee to be the relevant factor for considering the case of his dependent for appointment on compassionate ground. Counsel for the State in fact has sought one more indulgence to show that the post, on which the father of the petitioner was working, consequent to his take- over of services by the State Government, neither against a temporarily sanctioned post nor a permanently sanctioned post. This Court will accordingly give one more indulgence to the counsel for the State to file his supplementary counter affidavit on the issue but it is made clear that if on next day also there will be no supplementary counter affidavit this Court will proceed to decide the matter without awaiting for the same." Unfortunately when the counsel for State had still failed to clarify the stand taken in the counter affidavit this Court had been constrained to pass following order on 18.4.2011. "Despite two indulgence given by this Court on 01.04.2011 and 11.04.2011, answer to the sole query as with regard to the reason for refusing the appointment of the petitioner on compassionate ground, his father being working against unsanctioned post still remains illusive. It is the case of the petitioner that his father was working in a private institution namely Bunkar Training Centre, Islampur, Nalanda, which was subsequently taken over by 4 the State Government. In such institute the concept of sanctioned post could be made applicable in the period of prior to its take over, if there was a staffing pattern prescribed by the State Government. Alternatively when the institute became a governmental institution by virtue of its take over, the post on which the father of the petitioner absorbed would be deemed to be existing giving death knell to the theory of an unsanctioned post inasmuch as, if the Government had taken over an institute with all its assets and liabilities, its employees will be deemed to be taken over against the sanctioned post. These questions in fact had to be considered at the time when the decision was taken by the respondents before refusing appointment on compassionate ground to the petitioner, whose father, the sole bread earner died in the year 2004. In such a situation when the widow of the deceased employee, the father of the petitioner is also being paid family pension which would really defy all sorts of logic to reject the case of the petitioner on account of non availability of sanctioned post. The respondents were given two opportunities to support their stand but they have failed to produce any document on record and therefore, the sole plea that the Director is busy in election duty and the file relating to initial appointment of the father of the petitioner could not be traced, in fact it seems to be lame explanation. Be that as it may since, counsel for the State has produced letter of the Director of Industries dated 15.04.2011, a copy whereof is kept on record for seeking adjournment of this case till return of the Director from election duty, this Court would of course give one 5 more indulgence to the Director of Industries to take his firm stand by filing supplementary counter affidavit as also producing the original records to answer the issue in question. Let such supplementary counter affidavit be filed within a week from today and the Director of the Industries Department, on the next date shall personally remain present with the original files and record relating to appointment of the father of the petitioner so that whatever stand has been taken by him in his affidavit and/or in rejecting the case of appointment of the petitioner in the impugned order could be gone into by this Court in the presence of the authority concerned." Though the supplementary counter affidavit as directed has not been filed but the original records have been produced by the Director of Industries who has appeared in person. Having heard counsel for the parties and on perusal of the original records it now becomes clear that the father of the petitioner was actually appointed against a sanctioned post by the then Additional Director of Industries, Bihar vide his office order dated 31.8.1976 against a vacancy created on account of retirement of Janak Raut. It thus becomes clear that the plea of the father of the 6 petitioner being appointed and continued against unsanctioned post is wholly incorrect. The case of the petitioner, therefore, in all fairness ought to have been referred to the Compassionate Appointment Committee to examine as to whether the petitioner otherwise had fulfilled the requirement laid down in the Government policy for appointment on compassionate ground. That has not been done as yet and the impugned order dated 2.7.2007 as contained in Annexure-D to the counter affidavit was passed at the level of the then Director of Industries on wholly vague ground that the petitioner did not fulfil the requisite conditions laid down in the Government policy dated 5.10.1991. Not a word has been said in this order dated 2.7.2007 as to which part of the requirement of policy was not being fulfilled by the petitioner. Infact the plea of the father of the petitioner appointed illegally and unsanctioned post has also not been made the ground for rejection of the application of the petitioner. Consequently Annexure ‘D’ 7 being a vague and non-speaking order and contrary to the procedure prescribed is hereby quashed. This Court having already found that the plea raised in the counter affidavit as with regard to the father of the petitioner being appointed against an unsanctioned post is incorrect, would now direct the competent authority to now immediately refer the case of the petitioner for consideration by the Compassionate Appointment Committee of Nalanda District where the father of the petitioner was working and had died in harness. The Collector of Nalanda District on receipt of such application of the petitioner with other documents and recommendation of the controlling authority of the services of the father of the petitioner, namely, Principal, Bunkar Prashikshan Kendra, Islampur as also the Director of Industries would take its final decision within a period of three months from the date of receipt of the application filed by the petitioner in prescribed format which was earlier rejected by the order 8 dated 2.7.2007. It is also made clear that if the Compassionate Appointment Committee will recommend the case of appointment of the petitioner, consequential decision and order for appointment of the petitioner will be taken in next one month. The whole exercise, therefore, must come to an end within a period of six months. With the aforementioned observation and direction, this application is disposed of. Let appearance of Mr. B.N.Jha, Director of Industries, be dispensed with. (Mihir Kumar Jha,J.) Surendra/