IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1425 of 2009 MANISH KUMAR S/O LATE BIRENDRA KUMAR SINHA AND LATE MANJU SINHA, R/O VILLAGE-DIGHWARA P.O.+P.S. DIGHWARA, DISTRICT-SARAN. ………..Petitioner Versus 1. THE STATE OF BIHAR. 2. THE COLLECTOR-CUM-CHAIRMAN OF DISTRICT COMPASSIONATE APPOINTMENT COMMITTEE, HAZIPUR, VAISHALI. 3. THE SECRETARY, PUBLIC HEALTH & ENGINEERING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA (P.H.E.D.). 4. THE EXECUTIVE ENGINEER, DEPARTMENT OF PUBLIC HEALTH ENGINEERING, HAJIPUR, PARMANDAL, VAISHALI. …………Respondents ----------- 02 29.03.2011 From the records, it appears that petitioner has been fighting litigation before this Court since 2003 for his compassionate appointment which is being resisted by the respondents. The first writ petition petitioner had filed in 2003, which was numbered as C.W.J.C. No. 9013 of 2003. The order disposing of the writ petition, as contained in Annexure-A with the counter affidavit, shows that the case of the petitioner was that his mother died on 25.05.1995, he had applied for compassionate appointment on 15.05.2000, after obtaining his matriculation certificate. Since the same had been pending before the concerned respondent, he had come before this court. The respondents appeared and it was submitted on their behalf that the 2 matter of compassionate appointment of the petitioner had been referred to the Committee. Accordingly, the writ application was disposed of with a direction to the respondents to dispose of the matter of the petitioner within eight weeks of submission/receipt of the order. However the case of the petitioner for compassionate appointment was rejected by the Committee. Hence, he moved this Court again through C.W.J.C. No. 7958 of 2004. By order as contained in Annexure-C with the counter affidavit, the said writ application was dismissed by this Court on the ground that the application of the petitioner submitted on 15.05.2000 was not in proper form, as required by the rules and, therefore, the same was rightly rejected by the respondents. Petitioner moved before the Division Bench against the said order in L.P.A. No. 581 of 2005. The order disposing of the said L.P.A. as contained in Annexure-D with the counter affidavit shows that the Division Bench did not find the order of learned Single Judge as correct and held that the authorities cannot be permitted to reject the application of the party for his compassionate appointment only on the ground that it was not in proper form. Accordingly, the order of the learned Single Judge was set aside and the authorities were 3 directed to consider the application of the petitioner on merits. After the order passed by the Division Bench, the case of the petitioner was considered again by the Compassionate Committee in its meeting dated 10.01.2006 and was rejected on the ground that his application submitted on 27.11.2001, was time barred. Accordingly, the petitioner filed another writ application, namely, C.W.J.C. No. 2086 of 2006, challenging the said decision of the Compassionate Committee dated 10.01.2006. The writ application was disposed of by order as contained in Annexure-F, wherein the learned Single Judge found that the decision of the Compassionate Committee was not in compliance with the letter and spirit of the Division Bench. Hence, it remitted the matter back to the authorities to consider the original application of the petitioner dated 15.05.2000 filed by him on merits. The Committee has thereafter consider the case of the petitioner again and in its meeting dated 5.12.2006 has rejected his case again finding that the petitioner had not submitted any application on 15.05.2000 in the office and this has been communicated to this Court. In the circumstances petitioner has been compelled to come to this Court again in this writ 4 application. A counter affidavit has been filed in this case by the respondents. The categorical stand of the respondents is that no application of the petitioner dated 15.05.2000 is available on the record. The first application of the petitioner which is available on record is dated 18.07.2001 which was incomplete. Thereafter petitioner filed another application on 27.11.2001 with all requisite particulars and with complete informations and details. Since these two applications were time barred, the case of the petitioner was considered and has been rejected by the respondents. In view of the stand of the respondents in the counter affidavit, it is apparent that entire issue hinges on the question whether the petitioner had filed an application for his compassionate appointment on 15.05.2000 or not. Typed copy of the said application has been annexed with the writ application as Annexure-1 and its photocopy has now been produced with supplementary affidavit filed on 16.03.2011 as Annexure-7. There is an endorsement in the margin of the application of receipt of the same. It is stated in the application that the said application were received by one Krishnadeo Ram, the then Head 5 Clerk in the office of respondent no. 4 (Executive Engineer) and the initial is of that Head Clerk. One more document annexed with the supplementary affidavit by the petitioner is an application dated 16.12.2005 addressed to the District Magistrate, wherein there is a list of documents and it is stated that they are being filed after the disposal of his aforesaid L.P.A., in which there is a mention of a carbon copy of the application submitted by the petitioner on 15.05.2000. On the basis of these two documents, and pleading made in the supplementary affidavit, learned counsel for the petitioner submits that the case of the petitioner, that he had filed an application on 15.05.2000 itself for compassionate appointment, which was within time, should be accepted. The fact of availability of that application in the office is denied in the counter affidavit. Therefore, in normal course, a verification of the initials of the said Head Clerk on the application from his admitted initials available in the office would have become necessary. But one aspect of the matter dissuades this Court from taking that course. This Court finds that from the very beginning the definite case of the petitioner had been that he had filed an application for 6 compassionate appointment on 15.05.2000. The first order of this Court in the first writ application of the petitioner, as contained in Annexure-A, shows that, as far back as in 2003, he had made such a plea before this Court. Subsequent proceedings also show that this has been the consistent case of the petitioner. On the other hand, this Court finds that the respondents have initially taken stand that, that application of the petitioner was not in proper format, which clearly amounts to an implied admission on their part that the application was available with them. In the subsequent proceeding of Compassionate Committee wherein second time the case of the petitioner was considered and rejected, it is no where mentioned that, that application of the petitioner is not available with the respondents. They have only found that the application of the petitioner dated 18.07.2001 and 27.11.2001 were time barred. Thus, it is clear that till on the date of order of this Court passed in C.W.J.C. No. 2086 of 2006, the respondents never applied their mind found to the pleading made by the petitioner on oath in 2003 itself that he had filed an application on 15.05.2000. Since the petitioner had pleaded as such in 2003 itself, the respondents were required to apply their mind immediately to the same, especially in view 7 of the fact that they were rejecting his subsequent applications being time barred. The stand taken by the respondents at the initial stage that petitioner’s application dated 15.05.2000 was not in format also creates an impression that at some point of time that application was available on record and had passed through their eyes. The petitioner has produced the photocopy of the aforesaid application with endorsement on the same allegedly made by one Krishnadeo Ram, Head Clerk in the office of the respondent-Executive Engineer. The petitioner could not do anything more than that. Submitting application in the office, duly being received by the Head Clerk, was enough on the part of the petitioner to carry his request for his compassionate appointment. The rest had to be done by the respondents. Even if that application was not in format, responsibility lay with the respondents to get the proper format filled up by petitioner and place his case for consideration before the Committee. This Court is of the view that equity arises in favour of the petitioner and in view of absence of earliest denial by the respondents of existence of such an application, and presumption arises that the petitioner had filed the application dated 15.05.2000 8 which was duly received by the Head Clerk of the office. In the facts and circumstances of this case, and benefit of doubt, if at all, must go in favour of petitioner. In the circumstances, the application of the petitioner for his compassionate appointment has to be treated in time and has to be considered on merits. The subsequent applications dated 18.07.2001 and 27.11.2001 must, therefore, be considered as supplementary to his original application dated 15.05.2000 and must be considered on merits. The application is accordingly, allowed with direction to the concerned Executive Engineer to prepare the records and place the matter again before the District Compassionate Committee for consideration on merits in its next meeting. Since the petitioner is fighting litigation in this Court since 2003, the decision must be taken by the District Compassionate Committee and consequential order must be passed within four weeks. Safik ( J. N. Singh, J.)