IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16511 of 2007 1. MOSMAT JAI MALA DEVI wife of late Rajeshwar Mandal, resident of village Gadhi,P.S. Nayaramnagar District-Munger. 2. Nitesh Kumar, son of late Rajeshwar Mandal, resident of village Gadhi, P.S. Nayaramnagar, District- Munger…… Petitioners Versus 1. THE STATE OF BIHAR through the Chief Secretary, Government of Bihar, Patna. 2. The Director General cum Inspector General of Police, Bihar, Patna. 3. I.G. ( Personnel), Bihar, Patna. 4. Commandant B.M.P., Patna. ….. Respondents ----------- For the petitioners: Mr. N.K. Agrawal, Senior Advocate Mr. Pankaj Kumar Singh No.1, Advocate Mr. T. Sharma, Advocate For the State: Mr. S.B.N. Singh, A.C. to G.A. IX. --------- 4. 26.4.2010 Heard learned counsel for the petitioners and learned counsel for the State. The petitioners seek quashing of memo No.3927/P-2 dated 10.9.2004 issued by the D.I.G. (Personnel), Bihar, Patna and letter No.209/P-2 dated 8.2.2009 issued by respondent No.3, I.G. (Personnel), Bihar, Patna, by which the claim for compassionate appointment of petitioner No.2 has been rejected on the ground of its being time barred and further seek direction upon the authorities to appoint petitioner No.2 on compassionate ground as Bal Arakshi. The short facts of the case are that the husband of petitioner No.1 and the father of petitioner No.2, namely, Rajeshwar Mandal, who was a constable in B.M.P.5 died in a land mine - 2 - explosion caused by extremists while on election duty on 7.5.1996. Petitioner No.1 filed an application for compassionate appointment within time but was directed to apply in due proforma and also submit the certificates. No further steps were taken by her and thereafter she filed an application for compassionate appointment of her son, i.e., petitioner No.2 on the post of Bal Arakshi on 23.1.2001 and she filed a further application on 23.1.2004 for the same purpose. The same was rejected by the aforesaid impugned order on the ground that there was no proof in the office that the application has been filed within a period of five years fixed under the relevant Circular. The stand of the respondents in the counter affidavit is that the application dated 23.1.2004 for appointment of petitioner No.1’s son as Bal Arakshi was duly processed and subsequent assertion on behalf of the petitioners regarding an application having been filed on 23.1.2001 was on due verification not found supported by any records in the office. Learned counsel for the petitioners submits that since the petitioners have applied - 3 - well within the period of five years, hence, the rejection on the ground of application being barred by time as per the relevant Government Circular is not based on the facts of the case and for the said reason, it is required to be set aside. Learned counsel for the petitioners also assails the stand taken in the counter affidavit regarding petitioner No.2 being less than 12 years old even if it is presumed that the earlier application was filed on 23.1.2001. It is further submitted by learned counsel that it is not open to the authorities to support the orders passed by them and impugned in the writ petition on the basis of any new ground, not taken in the order in terms of the law laid down by the Apex Court in the case of Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and ors. : A.I.R. 1978 S.C. 851. Learned counsel for the State, on the other hand, submits that the authorities on due verification did not find in the record that petitioner No.1 had applied on 23.1.2001 and thus it cannot be said that the ground of rejection is non est. - 4 - It is further contended that the additional point raised by the petitioners goes to show that in any case, petitioner No.2 was not entitled to be appointed as Bal Arakshi on the alleged date of filing of the earlier application, i.e., 23.1.2001 or even within five years of the death of the deceased employee on 7.5.1996. It is urged that the date of birth of the petitioner No.2 is clearly mentioned as 2.11.1991 in the Transfer Certificate issued by the Headmaster of Rajkiya Madhya Vidyalaya, Sadarampur, Munger on 15.9.2003 and shows that he was admitted in the said school from 30.3.2001 and left it on 15.9.2003 while he was studying in class-VII. It is submitted that the said evidence disentitles petitioner No.2 for any appointment on compassionate ground. On a consideration of the facts and circumstances of the case and the submissions of learned counsels for the parties, this Court does not find any force in the submissions of learned counsel for the petitioners. From a perusal of so-called application dated 23.1.2001 it cannot be said that the said application with the date on the margin is any proof regarding the said letter - 5 - having been received in the office of the Commandant B.M.P.-5, Patna. Moreover, it is evident from the statements made in the counter affidavit that the said specific plea was got examined by the respondents and it was found, as a matter of fact, that there was no such earlier application made on 23.1.2001 prior to the application dated 23.1.2004. Thus under the writ jurisdiction, this Court is unable to hold that there was necessarily an earlier application filed within time with respect to the appointment of petitioner No.2 on compassionate ground. Hence, the ground on which the rejection has been made cannot be straightaway set aside. This Court may have considered the aforesaid aspect of the matter and given a second chance to petitioner No.2 for consideration of his application but in view of the date of birth recorded in the School Transfer Certificate as 2.11.1991, the petitioner No.2 was neither eligible on 23.1.2001 nor at any time within five years from the date of death of his father on 5.7.1996 to be appointed as Bal Arakshi, for which according to the relevant Circulars, the minimum - 6 - age requirement is 12 years and application for compassionate appointment has to be made within five years of death. Another reason for not issuing any direction in favour of petitioner No.2 is the passage of 14 years since the death of the deceased employee. The whole purpose of compassionate appointment is to relieve the immediate financial hardship caused to the family of the deceased Government servant. After 14 years the said necessity cannot be said to continue to exist, as the question of compassionate appointment cannot be left open indefinitely until a minor becomes eligible for appointment on compassionate ground, as laid down by the Apex Court in the case of Umesh Kumar Nagpal vs. State of Baryana and others: (1994) 4 S.C.C. 138. In the aforesaid view of the matter there is no merit in the writ application and it is, accordingly, dismissed. VPS ( Ramesh Kumar Datta, J. )