IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.993 of 2006 RAJ KISHOR KUMAR, son of late Ramdeo Mahto, resident of village Bishunpur Raji, P.S. Rampur Hari Meenapur, Dist.Muzaffarpur ---petitioner Versus 1.THE STATE OF BIHAR 2.The Director, Primary Education,Bihar,Patna 3.The District Magistrate-cum-Chairman, District Compassionate Committee, Muzaffarpur 4.The District Superintendent of Education, Muzaffarpur 5.The Sub-Divisional Officer, Muzaffarpur 6.The Area Education Officer, Muzaffarpur 7.Jai Kishore Mahto, son of late Ramdeo Mahto resident of village Bishunpur Raji, P.S. Rampur Hari, Dist. Muzaffarpur---respondents with CWJC No.16352 of 2008 JAI KISHORE MAHTO, son of late Ramdeo Mahto, resident of village Bishunpur Raj, P.O.Rampur Hari, P.S. Minapur,Dist. Muzaffarpur-petitioner Versus 1.THE STATE OF BIHAR 2.The Director, Primary Education,Bihar,Patna 3.The District Magistrate-cum-Chairman, District Compassionate Committee,Muzaffarpur 4.The District Superintendent of Education, Muzaffarpur 5.The Sub-Divisional Officer,Muzaffarpur 6.The Area Education Officer,Muzaffarpur 7.Raj Kishore Kumar, son of late Ramdeo Mahto resident of village Bishunpur Range, P.O. Rampur Hari, P.S.Minapur,Dist. Muzaffarpur ---respondents ----------- For the petitioner:M/S Uma Kant Shukla Pramod Kumar For the State :Mr.Bhaskar Shankar,A.C. to G.P.XII (in CWJC No. 993 of 2006) For the petitioner :M/S Durga Nand Jha Upendra Choubey For the State :Mr.S.K.Ranjan, A.C. to S.C.23. ----- 2 10. 3.3.2009 The two writ applications have been filed by the two sons of the deceased Government employee, both claiming appointment on compassionate ground and accordingly they have been heard together and are being disposed of by this common order. C.W.J.C.No. 993 of 2006 has been filed by Raj Kishor Kumar stating that the father of the petitioner, who was working as a Peon in the office of the Block Education Extension Officer, Meenapur-2, Muzaffarpur, died while in service on 3.7.1995. On 25.7.1996 he filed an application for appointment on compassionate ground. The petitioner claims to be the eldest son of the second wife of the deceased employee, whereas respondent no.7 Jai Kishore Mahto(who is also the petitioner in the second writ application,C.W.J.C.No. 16352 of 2008) is stated to be the son of the first wife of the deceased employee. The petitioner is claiming that after the death of the first wife the deceased employee again married and four sons including the petitioner were born out of the said marriage. He is also claiming that after death of his father he is managing 3 the whole affairs of the family and that respondent no.7 is living separately from before the death of their father and managing his affairs out of his own earnings. The District Compassionate Committee by its order dated 23.5.2000 rejected the claim of the petitioner on the ground that he was the son of the deceased employee born from the second wedlock which is contrary to law. Being aggrieved by the same, the petitioner came to this Court by filing C.W.J.C.No. 3751 of 2000 in which respondent no.7 also appeared and the application was disposed of by this Court by order dated 28.3.2005 directing the respondent authorities to take appropriate decision in the matter with regard to the issue of appointment of both the petitioner and respondent no.10 in accordance with law within a period of three months. Thereafter the District Compassionate Committee in its meeting dated 8.12.2005 considered the case of the petitioner and again rejected the same on the ground that son of the first wife is alive and in the said circumstances the son of second wife does not 4 have any right to appointment on compassionate ground. The case of the petitioner Jai Kishore Mahto in C.W.J.C.No. 16352 of 2008 is that he is the only son of the first wife of the deceased employee and from the marriage of the deceased employee he and one sister were born. It is his specific case that during the subsistence of marriage of his mother with the deceased employee the marriage with the mother of the petitioner of the first case, namely, Raj Kishor Kumar, took place. He claims to have filed an application in typed form before the respondent authority on 11.9.1995 for appointment on compassionate ground and thereafter by order bearing Memo No. 222 dated 22.6.1999 issued from the office of the S.D.O.,East Muzaffarpur,(Annexure-3) addressed to him and other petitioner and his mother, all the parties were directed to appear on 6.7.1999 so that it could be determined as to which son should be appointed on compassionate ground in the interest of the family. Again letter bearing Memo No. 280 dated 16.7.1999 of the Sub Divisional Officer, East Muzaffarpur, 5 addressed to the petitioner and to Raj Kishor Kumar and his mother was issued referring to the earlier letter dated 22.6.1999, directing them to appear before the Sub Divisional Officer for answering the queries. It is further claim of the petitioner that despite such application for appointment on compassionate ground having been filed well within the time the same was misplaced by the office and he was directed to re-submit the application on 25.11.2005. Thereafter the District Compassionate Committee in its meeting dated 10.8.2006 has considered the case of the petitioner Jai Kishore Mahto and rejected the same on the ground that the application was filed beyond the period of limitation prescribed for the same, which was communicated by the impugned letter dated 8.11.2006 of the District Establishment Deputy Collector. Being aggrieved by the rejection of the respective cases of two petitioners they have again approached this Court by filing above writ petitions. So far as the case of Jai Kishore Mahto is concerned, it is undoubted 6 that he is the eldest son of the deceased employee by his first wife. It is also evident from the aforesaid letters dated 22.6.1999 and 16.7.1999 of the S.D.O., East Muzaffarpur that he had duly filed his application for compassionate appointment within time before the authority and the matter was being enquired by the authorities and thus the said application well being within the prescribed time, i.e., within five years of the death of the deceased employee. He was thus entitled to consideration for appointment on compassionate ground. The ground of rejection that the application was filed beyond the period of limitation is contrary to the facts on the record and, thus, nonest and illegal. So far as the petitioner Raj Kishor Kumar is concerned, learned counsel for the petitioner rightly relies upon a Division Bench decision of this Court in the case of Purushottam Kumar @ Purooshattam Kumar vs. The State of Bihar & ors. : 2005(3) PLJR 458,in which in paragraph 13 it has been held as follows: “So far the policy decision of the State Government is concerned, it 7 speaks son only and as the son of the second wife is also legitimate son, as the policy stands he is entitled to appointment on compassionate ground and his claim cannot be rejected on the ground of his having been offshoot of void marriage. Thus, the sole ground for negativing the claim of the appellant for compassionate appointment by the Committee as contained in Annexure-2 to the memo of appeal is not a valid ground. This aspect of the matter as appears was not placed before the learned Single Judge.” It is, thus, evident that the case of the petitioner Raj Kishor Kumar could not have been rejected merely on the ground that the compassionate appointment could be granted only to the first wife and the child born to her or on the ground mentioned in the decision dated 8.12.2005 of the District Compassionate Committee that the son of the first wife is alive and, therefore, no claim for appointment on compassionate ground of the son of the second wife arises. It is evident that even if it is held that the subsequent marriage of petitioner’s father had taken place during subsistence of the marriage with the first wife and, therefore, the second marriage itself was not valid in the eye of law and the so-called second wife would not have the 8 status of a legally wedded wife, yet children born out of such marriage would be considered legitimate and have all the rights of children born from the first wife. In the said facts and circumstances, the case of the petitioner Raj Kishor Kumar could not have been rejected on the ground that has been taken in the aforesaid decision of the Compassionate Committee. In the aforesaid facts and circumstances, both the writ applications are allowed and the impugned letter dated 27.12.2005 and the decision of the District Compassionate Committee dated 8.12.2005 in C.W.J.C.No. 993 of 2006 as also the impugned letter dated 8.11.2006 and the decision dated 10.8.2006 of the District Compassionate Committee in C.W.J.C.No. 16352 of 2008 are quashed and the matter is remanded to the District Compassionate Committee, Muzaffarpur to reconsider the cases of both the petitioners in accordance with law and take a final decision in the matter within a period of two months from the date of receipt/production of a copy of this order. 9 It is made clear that as per the settled decisions of this Court the entitlement to compassionate appointment has to be considered in order of seniority, i.e., case of the elder brother, Jai Kishore Mahto will have the first priority and only if his case is rejected then the case of the younger brother Raj Kishor Kumar shall be considered. (Ramesh Kumar Datta,J.) spal/