IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11935 of 2005 NIRMALA DEVI, wife of late Chandrika Prasad, resident of village Tilaiya, P.S. Rajgir, District Nalanda … Petitioner Versus 1. THE STATE OF BIHAR through its Secretary cum Commissioner, Bihar, Patna 2. Director Primary and Adult Education, Bihar, Patna 3. District Magistrate, Nalanda, Bihar Sharif 4. District Superintendent of Education, Nalanda, Bihar Sharif 5. District Establishment Committee, Nalanda, Bihar Sharif 6. Deputy Collector, Establishment, Nalanda, Bihar Sharif 7. Circle Officer, Rajgir, Nalanda … Respondents ----------- 4. 29.3.2011 Heard counsel for the petitioner and the counsel for the State. The prayer of the petitioner in this writ application when it was originally filed in the year 2005 was for a direction to the respondents including the District Compassionate Appointment Committee to consider her case for appointment on compassionate ground and issue consequential appointment letter on the basis of that her husband late Chandrika Prasad died in harness on 27.7.2002. During the pendency of this writ application as the District Compassionate Appointment Committee had considered the case of the petitioner and had rejected the 2 same in the meeting held on 29.7.2005, the same was sought to be assailed by filing an interlocutory application, I.A.No. 5359/2008. For the reasons mentioned in I.A.No. 5359/2008 the prayer made therein is allowed, inasmuch as the order as sought to be impugned is only a continuing cause of action as with regard to the main relief sought in this writ application. I.A.No. 5359/2008 is, accordingly, allowed and will be treated as part of the writ application. Mr. Shukla, learned counsel for the petitioner, has submitted that the view taken by the District Compassionate Appointment Committee while rejecting the case of the petitioner for appointment on compassionate ground that there were no valid and legal papers of the petitioners being the wife of the deceased employee is absolutely incorrect, inasmuch as from the various certificates issued by the authorities of the Revenue Department as also the affidavit sworn by one of the sons of the husband of the petitioner from the 3 first wife it is absolutely clear that the petitioner is the second wife of late Chandrika Prasad who after having lost his first wife by way of her death in the year 1989 had married the petitioner in the year 1991. He would, accordingly, submit that there would be no need for the petitioner to now seek succession certificate, inasmuch as even this aspect of the matter stands settled in the judgment of this Court in the case of Usha Kumari vs. the Vice Chancellor & ors., reported in 2005(3) PLJR 163. Counsel for the State with the help of the counter affidavit has submitted that the very fact that there was a doubt with regard to marriage of the petitioner with late Chandrika Prasad had made the matter complicated and as such, an enquiry was made. In course of such enquiry it was found from the application filed by the only son of late Chandrika Prasad that Chandrika Prasad had only once been married with one late Lalita Devi from whom he had four issues, namely, four daughters, Pratibha Kumari, Kiran Kumari, Nirmali Kumari and Manju Kumari and a son Sudhir Kumar. It has, 4 therefore, been pointed out that the alleged affidavit of the second son of Chandrika Prasad from his first wife Lalita Devi as produced by the petitioner did not inspire confidence. As with regard to the caste certificate or the certificate of the family issued from Anchal Office and other Revenue authorities it has been explained that all have of them been issued after the death of the deceased employee Chandrika Prasad, who had died on 27.7.2002 and in fact there is nothing to show at least in the departmental records that Chandrika Prasad after the death of his first wife in the year 1989 had ever married the petitioner. In the light of the aforementioned pleadings the first question would be as to whether the case of the petitioner can be considered for appointment on compassionate ground by treating her to be duly married wife of the deceased employee. There is a serious dispute with regard to Sunil Kumar being son of Chandrika Prasad from the first wife, inasmuch as from the report of the Gram Panchayat, its Mukhiya and Pramukh it is absolutely clear that Chandrika Prasad 5 has only four daughters and a son, namely, Sudhir Kumar. This aspect of the matter in fact has also been explained by the Block Education Extension Officer, who has categorically mentioned that the only son of Chandrika Prasad namely Sudhir Kumar was residing separately. In this view of the matter, this Court would find that the affidavit of Sudhir Kumar, who also is a minor as per own declaration of the petitioner, cannot be relied. Let it be noted that whereas the petitioner in her application seeking compassionate appointment has shown the age of Sunil Kumar as on 26.12.2002 to be ten years but the affidavit sworn by the said Sunil Kumar in the date of 15.3.2004 does not even give inkling of his being a minor. In any event the so-called affidavit of Sudhir Kumar as with regard to the marriage of the petitioner with Chandrika Prasad does not fall in the category of admitted document on the basis of which the State and its official could have proceeded. As noted above, the caste certificate and the certificate of the family issued by the 6 Revenue authorities are all dated 26.12.2002 or thereafter, whereas Chandrika Prasad had died on 27.7.2002 and they cannot be now treated to be the admitted document for showing that the petitioner is duly married wife of late Chandrika Prasad. Normally in such a situation the succession certificate issued by the court can be the only safe proof of relationship including that of the petitioner as a duly wedded wife of late Chandrika Prasad but the petitioner has not applied for the said succession certificate till date. Counsel for the petitioner however submits that the entire retirement benefit has been received by the minor son of Chandrika Prasad, namely, Sudhir Kumar, on an understanding and an agreement with him that while he would get all the retirement benefits, the petitioner will be allowed to claim compassionate appointment. It is very difficult to accept even this part of the story, inasmuch as there is nothing on record by way of an agreement and Suhdir Kumar aged about 12 years and thus a minor at the time of death of his father was not 7 even competent to enter into such agreement. This Court, therefore, would not give any credence to the story of any agreement, especially when Sudhir Kumar has gone on record by way of filing an application to the District Superintendent of Education, Nalanda, vide Annexure ‘B’ to the counter affidavit, altogether denying the marriage of the petitioner with his father. As noted above, there is no declaration of the deceased employee in any of the official document prior to his death showing the petitioner to be duly wedded wife and as such, the District Compassionate Appointment Committee cannot be said to have committed any error in rejecting the case of the petitioner by holding that she had failed to produce any valid paper of succession and accordingly, her application was rejected on this ground alone. Mr. Shukla, however, would submit that the affidavit of the second son of Chandrika Prasad is of the year 2004 but that does not seem to have taken into consideration by the District Compassionate Appointment Committee when it took such a 8 decision in the meeting held on 29.7.2005. It is very difficult for this Court to accept even such submission because when the petitioner was asked to produce documents pertaining to her succession and being wife of Chandrika Prasad and even when she had already filed this writ application annexing the document, the certificate in firm of affidavit of the alleged second son, the said document had not been produced by her before the District Compassionate Appointment Committee. As noted above, the said affidavit even otherwise will have no value in the eye if law, inasmuch as the petitioner herself had declared the age of the deponent of the affidavit Sunil Kumar to be about ten years as in the year 2002 which would make him 12 years in the year 2004. Faced with this situation Mr. Shukla has placed reliance on the judgment of this Court in Usha Kumari (supra) as his last sheet-anchor. In the case of Usha Kumari (supra) however what was laid down by this Court was that in emergent situation where the parties would dispute about the certificate or movable or immovable 9 properties and a succession case is pending, the same should not be the sole circumstance for keeping the application for compassionate appointment pending. The judgment of Usha Kumari (supra) does not lay down the law that even where the succession of the deceased employee is disputed, the authorities have to decide the same and exercise the power of the Civil Court for holding a particular person to be the successor of the deceased employee. In any event in the present case as there is no official document prior to the death of the deceased employee declaring the petitioner to be his wife including nomination in provident fund and thus it would be difficult for the authorities to appoint the petitioner treating her to be a wife of the deceased employee. If the petitioner is so sanguine of her claim of being a duly wedded wife of Chandrika Prasad, the only recourse for her will be obtaining of a succession certificate after impleading not only all the children of the first wife of late Chandrika Prasad but also the State and its 10 officials against whom such claim for compassionate appointment could be made on the basis of such succession certificate. That being so, while this Court would find it difficult to interfere with the impugned order in this writ application as also issue necessary direction for appointment of the petitioner, it would give liberty to the petitioner to obtain succession certificate and approach the authority after such succession certificate is issued in her favour declaring herself to be the wife of late Chandrika Prasad. With the aforementioned observations, this application is dismissed. (Mihir Kumar Jha,J.) Surendra/