IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8540 of 2008 NALINI KUMAR, son of late Surendra Rai, resident of Mohalla- Yarpur Yogiatola, P.S. Gardanibagh, District- Patna. … Petitioner. Versus 1. THE STATE OF BIHAR through Principal Secretary, Human Resources Development Department, Government of Bihar, Patna. 2. The Director Secondary Education Human Resources Development Department, New Secretariat, Patna. 3. The Regional Deputy Director of Education Patna Division, Patna. 4. The District Level Compassionate Committee through its Chairman (the District Magistrate Patna) 5. The District Magistrate, Patna. 6. The District Education Officer, Patna. 7. The District Superintendent of Education, Patna. … Respondents. ----------- 3. 10.05.2011 Heard learned counsel for the parties. In terms of earlier order of this Court dated 2.5.2011, the District Superintendent of Education, Patna has appeared in person and has filed his counter affidavit as also I. A. No. 3544 of 2011. In the aforementioned I. A. No. 3544 of 2011, a prayer has been made to recall the order dated 2.5.2011 so far it directs the District Superintendent of Education to pay a cost of Rs.10,000/-. Mr. K. P. Gupta, learned Standing Counsel XVI appearing on behalf of District Superintendent of Education, Patna would submit that Office of District Superintendent of Education had 2 earlier sent the statement of facts to the Law Officer who was then dealing with the matter but the counter affidavit could not be filed. In the considered opinion of this Court, no case has been made out in the application for recalling earlier order imposing cost of Rs.10,000/- inasmuch as nothing has been said in this application as to when the Office of DSE had supplied such statement of facts to the concerned Law Officer nor any effort has been made to explain that after giving copy of the statement of fact any effort was made by the District Superintendent of Education, Patna to ensure about the preparation and filing of the counter affidavit. Such lame explanation even otherwise is fit to be rejected inasmuch as sending statement of fact to the concerned Law Officer by itself would not amount to filing of a counter affidavit unless a counter affidavit was prepared on the basis of such statement of fact and was duly sworn by the District Superintendent of Education himself. Obviously such steps having never been taken, this application has been only filed by way of formality. 3 The facts remains that this writ application was filed on 23.5.2008 and when it was taken up after more than three years on 2.5.2011, there was still no counter affidavit which led this Court to adjourn the matter for only filing counter affidavit. It was in these circumstances, this Court in the order dated 2.5.2011 had recorded as follows;- “In this writ application, the prayer of the petitioner is for issuance of a direction for appointment on compassionate ground due to death of his father on 21.07.2003, which is said to be still pending as asserted by the petitioner in the writ application. Learned counsel for the petitioner in this regard has invited attention of this Court to the resolution and recommendation of the District Compassionate Appointment Committee dated 22.07.2005, whereby and whereunder, the petitioner was recommended for appointment either on a vacant class- III or class-IV post. He has further submitted that till date no decision on the aforesaid recommendation of the committee has been taken by the competent authority of Education Department, where the father of the petitioner was working. Learned counsel for the State has submitted that this court should dispose of this writ application by directing the competent authority to consider the recommendation as contained in Annexeure-3 or in the alternative grant three weeks time for filing of the counter affidavit, 4 inasmuch as, this case has been listed for the first time today. This Court is however, not inclined to accede to either of the prayer of the learned counsel for the State. The disposal of representation a filed by the petitioner in the year 2006 vide Annexure-3 would not be the correct way of dealing a matter relating to compassionate appointment, inasmuch as, the petitioner has waited not only for a period of eight years before the authorities from the date of death of his father for consideration of his case but also for a period of almost three years from the date of filing of this writ application for an effective adjudication. Thus if the writ petition is now disposed of with a mere direction to consider his case, he may have to still wait for his appointment as he has not been appointed despite a favourable recommendation by the Committee some six years way back on 22.07.2005. The respondents in fact having not filed their counter affidavit cannot make the petitioner suffer due to their inefficient and callous attitude. The whole idea of filing the writ applications after serving two copies on the counsel for the State is to ensure that the counter affidavit will be filed promptly and the case will be disposed of on merits instead of a mere direction for disposal of representation. As a matter of fact, disposal of such representation and passing of an order may keep the door open for further litigation and in process the petitioner would stand deprived from the purpose of appointment on compassionate ground. 5 There is in fact no justifiable reason for the respondents to have not given instruction to the Government counsel especially when the case relates to Patna itself. In that view of the matter, the prayer for adjournment of this case earlier made for three weeks and later on reduced to one week can be allowed only by directing payment of cost of Rs. 10,000/-to be paid by the District Superintendent of Education, Patna to the petitioner within a week from today and enclosing receipt showing payment of such cost by him. List this case accordingly after one week on 10th of May, 2011 at the top of the list, on which date District Superintendent of Education, Patna shall also remain personally present before this Court to explain as to why the counter affidavit has not been filed in this case.” Thus, when no justifiable ground has been made out in the connected I. A. No. 3544 of 2011 and its only relevant paragraph no. 2 reading as follows:- “That very outset this opposite party tenders his unqualified and unconditional apology for not filing the counter affidavit in this case earlier, though statement of facts for such counter affidavit was earlier submitted to the office of the learned, the then Ex-Standing Counsel No. 5 but it could not be sworn and could not be filed.” also is a vague statement, this Court will have no option but to reject the prayer for recall of the order 6 dated 2.5.2011. In fact, it is a frivolous application and is another example of waste of government exchequer. Filing of such application in fact should have been avoided. This Court under such circumstances while rejecting the application of D.S.E., Patna was inclined to enhance the cost, but considering the fact that Mr. K. P. Gupta, learned Government Counsel on behalf of D.S.E., Patna has tendered unconditional apology for the inconvenience caused to this Court in dispensation of justice, would leave the matter at rest by directing the District Superintendent of Education, Patna to comply the order dated 2.5.2011 within a week from today in which the receipt showing payment of Rs.10,000/- by way of cost through a bank draft in the name of petitioner must be filed in the Registry of this Court. I. A. No. 3544 of 2011 is, accordingly, rejected. Coming to the merits of this case, it has been explained in the counter affidavit that the petitioner had been offered appointment on the post of Panchayat Shikshak by way of his compassionate 7 appointment but he had not given his consent. Normally, such consent is not required after the judgment of Full Bench of this Court in the case of The State of Bihar & Ors. Vs. Rajeev Ran Vijay Kumar, reported in 2010(3) PLJR 294 (full bench), but then as now counsel for the petitioner having made enquiry from the petitioner who is also personally present in this Court and has communicated his willingness through his counsel to accept his appointment on the post of Panchayat Teacher, this Court would direct the District Superintendent of Education, Patna to ensure that the appointment letter of the petitioner for the post of Panchayat Teacher is issued by the Competent Authority by 30th June, 2011. With the aforesaid observations and directions this writ petition is, accordingly, disposed of. Let a copy of this order be given to Mr. K. P. Gupta, learned Standing Counsel 16 for its strict compliance. kanchan (Mihir Kumar Jha, J.)