IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7176 of 2007 Sunny Kumar Verma, S/o late Niranjan Kumar Verma, R/o Mohalla Laxmanpur, P.S. Alamganj, Town + District Patna. --------- Petitioner Versus 1. The Dist. & Sessions Judge, Patna. 2. The Registrar, Civil Court, Patna. 3. The Judge-in-Charge, Civil Court, Patna City, Patna. 4. The Hon’ble High Court of Judicature at Patna through its Registrar General. 5. The State of Bihar. 6. The Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Old Secretariat, Patna. 7. The Addl. Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Old Secretariat, Patna. 8. The Law Secretary-cum-Legal Remembrancer, Bihar, Old Secretariat, Patna. 9. The Collector-cum-District Magistrate, Patna. -------- Respondents ----------- For the Petitioner :- Mr. Pushkar Narain Shahi, Adv. Mr. Patanjali Rishi, Adv. Mr. Sanjeet Kumar Singh, Adv. For the State (Resp. 5 to 9) :- Mr. Shashi Bhushan Kumar, S.C.7 For Respondent Nos. 1 to 4 :- Mr. Piush Lall, AC to AAG-I ---------- 2 4.4.2011 Heard Mr. Pushkar Narain Shahi, learned counsel for the petitioner and Mr. Shashi Bhushan Kumar, Standing Counsel No.7 for the State as also Mr. Piush Lall, learned counsel for respondent nos. 1 to 4. The prayer of the petitioner, seeking direction for appointment on compassionate ground, is based on the death of his father who is said to have been missing ever since 6.7.1993. It has been stated in the writ application that after the father of the 2 petitioner remained missing for a period of more than seven years, the mother of the petitioner had filed Title Suit No. 19 of 2001 seeking declaration that the father of the petitioner, having been not known for a period of more than seven years, should be deemed to have been died in terms of Section 108 of the Indian Evidence Act. It has also been contended that the Civil Court by a decree had made such a declaration on 29.8.2003, whereafter, the petitioner had filed his application on 22.10.2005 but, the same was rejected on the ground that there was no provision for appointment of a Government servant allegedly missing and presumably died after a period of seven years. Mr. Shahi would submit that the solitary reason given in the impugned order would not only run counter to the scheme of the compassionate appointment, which in its wide fold would engulf all sort of death whether natural or presumptive and, therefore, no artificial dividing line can be drawn by the Government by depriving the dependants of such a Government servant, who 3 is said to be missing for a period over seven years having presumption of his death in terms of Section 108 of Evidence Act. In this context, he would also place reliance in the order of this Court in the case of Smt. Kamla Devi & Anr. Vs. The State of Bihar & Ors. reported in 2005(2)PLJR 155. Learned counsel for the respondent nos. 5 to 9, however, has submitted that the petitioner had filed his application claiming appointment on compassionate ground on 22.10.2005, whereas, the date of death of his father would be deemed to be 6.7.1993 and as such, even if the Government circular on the issue for the time being debarring consideration of the case of dependent of a missing government servant is not taken into consideration, the petitioner, as per the existing Government policy also, would not qualify for appointment on compassionate ground, inasmuch as, such application was admittedly filed after a period of twelve years from the date such presumption of the death. In this context it has also been explained that the date of birth of the petitioner was 26.1.1987 and, therefore, he 4 was aged about five and half years on the date of death of his father and he could not become major within the next five years of the prescribed period of limitation. It has also been contended that the petitioner could become major only on 26.1.2005, whereas, the presumption of death was, if not from any other date it could be at least be drawn upon completion of seven years at least with effect from 6.7.2000. Finally it has been pointed out on behalf of the respondents that the purpose of compassionate appointment was to provide immediate relief to the members of the deceased family but, if the family could survive from July, 1993 till October, 2005 when the petitioner had filed his application for the first time for his appointment on compassionate ground, there would be hardly any purpose now left for appointing the petitioner. In this context, reliance has been placed on the judgment of the Apex Court in the case of Umesh Kumar Nagpal Vs. State of Haryana & Ors. reported in 1994(4)SCC 138. While Mr. Shahi may be correct in analyzing and even criticizing the Government 5 circular seeking to draw a line of distinction between natural death and presumptive death but, then, this Court would not like to go into such question in this case for the simple reason that if the petitioner himself was not eligible within the prescribed period of limitation i.e. five years from the death of his father and could file his application only after prescribed period of limitation of five years, that by itself was sufficient for disentitling the petitioner from being appointed on compassionate ground. As a matter of fact, the case relied by Mr. Shahi, far from supporting his case, would stand in the way of the petitioner of being appointed, inasmuch as, the learned single Judge in the case of Smt. Kamla Devi (supra) had held as follows:- “4. It is true that there is a limit for making application for compassionate appointment. This limit, however, will start running from the date when the period of presumption will come to an end and not on the date of the death for by reason of a fiction of the statute made through the legislative mandate, although the death has occurred, the cognizance thereof can be 6 taken after expiry of the time specified.” Applying the aforementioned ratio in the present case, it would be found that the father of the petitioner went missing from 6.7.1993 and yet even when the presumptive death on the ground of continuing missing for a period of seven years would be 5.7.2000, the application was filed by the petitioner beyond limitation of five years i.e. on 27.10.2005. Thus, the petitioner can get no benefit by consideration of his case as his application was itself time barred. That however will not be the end of the matter. The petitioner was also ineligible for being appointed on account of his being minor on the date of presumptive death of his father, who would be deemed to have been died on 6.7.1993. As noted above, the date of birth of the petitioner is 26.1.1987 and, therefore, as on 6.7.1993, he was hardly five and half years old. The law in this regard again has been settled by division bench of this Court in the case of Anil Kumar Singh Vs. State of Bihar & Ors. reported in 1993(1) PLJR 414 that if the dependent who is a minor 7 on the date of death of the government servant and would not become major even in the prescribed period of limitation i.e. five years, he would stand disqualified, inasmuch as, the scheme for compassionate appointment can be made applicable as one of a right and by way of reservation. Judged from this angle as well, this Court would find the petitioner ineligible for his appointment on compassionate ground. Learned counsel for the respondents, in fact, is also correct in analyzing the law as with regard to the compassionate appointment, inasmuch as, a delay of more than twelve years in filing of the application on whatsoever ground would automatically disentitle a person from claiming compassionate ground. The Apex Court in the case of Umesh Kumar Nagpal (supra) has laid down law in this regard that delay in filing the application by itself would be sufficient to reject such claim of compassionate appointment. Here the family could survive and, in fact, has been surviving for last eighteen years without there being any 8 compassionate appointment. Even from the date of rejection of the application of the petitioner, a period of more than twelve years has been completed and, therefore, this Court will not exercise its discretion in favour of a person, whose appointment on compassionate ground will now serve no purpose except his own rehabilitation. Thus judged from any angle, this Court would find it difficult to allow the prayer of the petitioner. That being so, this application is, accordingly, dismissed. Rsh (Mihir Kumar Jha, J.)