IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4900 of 2008 Suresh Kumar, S/o late Radheshyam, resident of Mohalla East Dahiyawan, Jagdama Road, P.O. Chapra, P.S. Town Thana, District Saran. -------- Petitioner Versus 1. The State of Bihar. 2. Director, Employment Exchange, New Secretariat, Patna. 3. Sub-Regional Director, Employment Exchange, Chapra. 4. District Compassionate Appointment Committee, Saran at Chapra through D.M. Saran. -------- Respondents ----------- 3 21.4.2011 Heard learned counsel for the petitioner and counsel for the State. Initially when this writ application was filed on 17.3.2008, the prayer of the petitioner was confined for consideration of his case for appointment on compassionate ground on a plea that his father late Radheshyam had died in harness on 7.2.2003 and despite recommendation sent by the controlling authority of the father of the petitioner for considering the case of the petitioner for appointment on compassionate appointment, no decision had been taken. Counsel for the petitioner would submit that during pendency of this writ application, the respondents have appointed one Binod Kumar, who according to the petitioner is not in any way related to the 2 deceased employee, muchless, his son. He has accordingly sought amendment in the prayer portion of the writ application by seeking leave to also assail the order of appointment of the Binod Kumar dated 31.12.2010 issued by the Director, Employment & Training, Government of Bihar, Patna. For the reasons mentioned in this application, I.A. No. 2926 of 2011 seeking impleadment of Binod Kumar as also assailing the order of his appointment vide memo no. 1239 dated 3.12.2010 (Annexure-3) is hereby allowed. Accordingly, the prayer made in I.A. No. 2926 of 2011 is allowed and shall be treated to be part of this writ application. Learned counsel for the petitioner would submit that there are unimpeachable documents, namely, a declaration of the father of the petitioner, ration card, election card etc., which would go to show that neither the father of the petitioner had ever performed second marriage nor Binod Kumar was the son of his father. He has stressed on the aspect that his father had 3 performed only one marriage with Kanti Devi, the mother of the petitioner and there were four issues, namely, Rekha Kumari, Seema Kumari, Rajesh Kumar and Suresh Singh, the petitioner and, accordingly, this Court must hold that the appointment of Binod Kumar is per-se illegal as he was neither the son of the father of the petitioner nor was in any way entitled to get compassionate appointment after the death of his father. Counsel for the State on the other hand would point out that the petitioner himself is the son of the second wife of the deceased employee as would be apparent from the report of the Anchal Adhikari, Sadar, Chapra dated 3.7.2007 indicating that late Radheshyam, the father of the petitioner had initially married one Kismato Devi @ Moti Devi and from this first marriage, Binod Kumar was the son. In the said report of Anchal Adhikari, it has also been pointed out that Radheshyam, during life time of his first wife Kismato Devi @ Moti Devi, had performed second marriage with Kanti Devi and there were four issues from the second 4 marriage. He would, therefore, submit that when Binod Kumar, the son of Radheshyam from the first wife, was eligible for appointment on compassionate ground, there would be no reason available with the authority to appoint the petitioner, inasmuch as, the marriage of the mother of the petitioner was itself void in terms of Section 5 read with Section 11 of the Hindu Marriage Act. It would thus appear that the issue lies in the question of line of succession and is a jinx question of fact. The petitioner claims that the deceased employee had performed only one marriage with his mother Kanti Devi whereas the authorities have found that there were two marriages one with Kismato Devi @ Moti Devi, whose son was Binod Kumar and Kanti Devi, whose son is the petitioner. The authorities, therefore, prima-facie have not committed any error in appointing Binod Kumar by treating him to be the son from the first wife but, then, if the petitioner is so sure and sanguine to his claim that late Radheshyam had never performed marriage with Kismato Devi @ Moti 5 Devi and Binod Kumar in fact was stranger to the family of the father of the petitioner, it is he who will have to seek a declaration from the civil court by filing a civil suit. Counsel for the petitioner says that the petitioner will file such a civil suit but, it should be made clear that if it is held by the civil court in the suit filed by the petitioner that Binod Kumar was stranger to the family of late Radheshyam and in fact he was not the son of late Radheshyam, the respondent should consider the case of the petitioner for appointment on compassionate ground. There can be no difficulty in allowing such prayer of the counsel for the petitioner, inasmuch as, if actually Binod Kumar is a stranger and not related to late Radheshyam, his appointment on compassionate ground has to be automatically cancelled. The question, however, would be can this be decided by the Writ Court or even by the authority? The answer will always be in negative. In such a situation, if the petitioner wants to go Civil Court for seeking such a declaration, he has to implead 6 not only Binod Kumar but also Kismato Devi @ Moti Devi and official respondents herein for seeking declaration that Binod Kumar is not the son of late Radheshyam and the appointment letter dated 3.12.2010 (memo no. 1239 dated 3.12.2010) passed on his being son of late Radheshyam is illegal and void. It is, however, made clear that if the petitioner would succeed in such a suit, his claim for appointment on compassionate ground, being pending in view of his application filed and also recommended by the controlling authority, would not be rejected on the ground of delay. With the aforementioned observations and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)