IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15600 of 2009 1. Rajeev Kumar Manjhi S/O Late Ram Autar Manjhi R/O Vill.- Jagatpura, P.O. Sawaja, P.S. Barharia, Distt.- Siwan Versus 1. The State Of Bihar Through Director General Of Police 2. Principal Secretary, Deptt. Of Personnel And Administrative Reforms, Govt. Of Bihar, Patna 3. Joint Secretary, Home (Police) Department Govt. Of Bihar, Patna 4. Superintendent Of Police, Siwan 5. Collector-Cum-Chairman, District Compassionate Appointment Committee, Siwan ----------- 3. 18.08.2011 Heard learned counsel for the petitioner and the State. No counter affidavit has been field on behalf of the State despite the fact that the writ application was filed one and a half years ago. The father of the petitioner died in harness on 7.5.2001 as Subedar in the District Police Force. On 4.7.2005 the petitioner applied for compassionate appointment. The mother of the petitioner abdicated her claim in his favour. The respondents rejected his claim on 26.4.2008 on the ground that his elder brother was already in Government service in the Police as a Constable, referring to certain orders of this Court in C.W.J.C. No. 6668 of 2003 (Mahabir Paswan Vs. State of Bihar & ors.) and 7744 of 2003 (Jay Prakash Choudhary Vs. State of Bihar & Ors.). Learned counsel for the petitioner submits 2 that under a departmental letter No. 895 dated 18.2.1995 compassionate appointment could not be denied only on the ground that another son was in service if he was not maintaining the family and was separated. In light thereof directions were given in 1998(1) PLJR 125 (Bharat Prasad Vs. The State of Bihar & Ors.), to consider the claim for compassionate appointment on facts. The submission is that the crux of the question is if the elder son was looking after the family or not. If he was not, and the authorities were satisfied of the same, the petitioner did have a case to be considered for appointment and otherwise not. It was lastly submitted that in similar circumstances the respondents have provided employment to one Binod Singh by an order dated 18.9.2007 notwithstanding that his brother was in the Army. Counsel for the State supported the impugned order. In the case of Mahabir Prasad (supra) and Jay Prakash Choudhary (supra) the claim was rejected on the reasoning contained in 2004(2) PLJR 453 (DB), that in a case of sibling rivalry with competing claims for compassionate appointment the authorities were under no obligation to do so. Presently there are no competing 3 claims for compassionate appointment by the two brothers. Any appointment on compassionate ground can be made strictly in terms of the policy regulating the same. If the policy dated 18.2.1995 provides for consideration of the claim of a second son notwithstanding the elder son being in employment, but subject to the satisfaction of the authorities with regard to the destitute and penury of the family because the employed brother was not looking after the family and the widow was also suffering on that count, the claim for compassionate appointment cannot be shut outright. In 2000 (4) PLJR 651 (DB) considering the denial of claim for compassionate appointment in a case where both the mother and father were in Government service and/or superannuated, the crux of the decision at Paragraph 13 is as follows:- “13…….. Thus, the crucial test to decide as to whether a person is to be appointed on compassionate ground or not is to find out whether the family has other sources of livelihood or not at the relevant time to meet the hardship, and once it is found that the financial condition is sufficient to tide over crisis, then no appointment can be made on compassionate ground and the question whether the other spouse is continuing in service or has retired is wholly immaterial” 4 The touchstone for the exercise of the power therefore is that does the family have other sources of survival or is it left destitute. In each case therefore it is a question of fact to be arrived at after an enquiry. Learned counsel for the petitioner has strenuously relied upon a report submitted by the Halka Karamchari on 12.5.2008 in support of the claim that the elder brother was separated and was not looking after the family. The Court has perused the same but is not satisfied that it is an enquiry of the nature required to sustain an appointment on compassionate ground indicating destitute and penury. The Court therefore does not uphold the impugned order dated 26.4.2008. That the petitioner may have represented against the same and which came to be rejected for like reason on 22.6.2009 is not relevant. The same automatically stands set aside. The matter is remanded to the Collector, the Chairman of the District Compassionate Appointment Committee to call for a proper enquiry report from a responsible functionary of the Government at a middle level and then take a fresh 5 decision in the light of the present discussion within a maximum period of four months from the date of receipt/production of a copy of this order. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)