IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1037 of 2006 UPENDRA KUMAR SINGH, son of Late Haricharan Singh, resident of Pirhi, P. S. Kurtha, District- Arwal. …. Petitioner. Versus 1. THE STATE OF BIHAR through the Secretary, Primary Education, Govt. of Bihar, New Secretariat, Patna. 2. The District Magistrate, Gaya. 3. The District Development Officer, Gaya. 4. The District Superintendent of Education, Gaya. 5. The Regional Education Officer, Tekari, Gaya. 6. Virendra Kumar Singh, son of late Hari Charan Singh, resident of village- Pirhi, P.O.- Narhi, P.S.- Kurtha, District- Arwal. ….. Respondents. ----------- 3. 28.03.2011 Heard learned counsel for the petitioner and learned counsel for the State. Despite service of notice, no one has appeared on behalf of respondent no. 6. The prayer of the petitioner in this writ petition is for issuance of a direction for his appointment on compassionate ground. Counsel for the petitioner submits that the father of the petitioner had performed three marriages and the petitioner is a son from third marriage. He has further submitted that since the son from the first marriage of the father of the petitioner, respondent no. 6 had crossed the maximum age limit for appointment in government service, he himself had sworn an affidavit giving up his 2 claim for appointment on compassionate ground and therefore the authorities should have no difficulty in now appointing the petitioner on compassionate ground. Counsel for the State has pointed out that the petitioner in fact was a minor as on the date of death of his father i.e. on 31.1.2000. The date of birth of the petitioner, in fact, according to the learned counsel for the State is 5.1.1985 and that is why the third wife mother of the petitioner after drawing entire death cum retirement benefit payable to the father of the petitioner before her death in the last affidavit filed by her had stated that the respondent no. 6 should be appointed on compassionate ground. He has pointed out that it was in this background that the case of respondent no. 6 for his appointment after condoning the maximum age limit was processed as would appear from the order of the District Superintendent of Education, Gaya dated 30.9.2002 (Annexure-F). He has further submitted that it is only on account of pendency of this writ application that no final decision could be taken for appointment of respondent no. 6 even when as per the government circular dated 5.10.1991, the respondent no. 6 being the eldest son of the deceased employee had a better 3 claim for his being appointed on compassionate ground. Counsel for the petitioner has not controverted the aforesaid facts and in fact has also not filed any rejoinder affidavit to the aforesaid specific assertion made by the State in the counter affidavit but he has expressed his serious apprehension that in case respondent no. 6 is appointed, he will not take care of the petitioner and his sister (Step brother and sister) the two issues from the third wife of his father. In the considered opinion, the first thing to be decided is who amongst the dependent of the deceased employee is fit to be appointed. There is no difficulty for the first category of dependent, namely, wives who were never in the zone of consideration inasmuch as now no one amongst the three of them is alive. The second category of dependent is son and amongst the sons it is the eldest son, if qualified and eligible, has a better claim. Admittedly, on the date of death of father of the petitioner, respondent no. 6 was eligible for being appointed and it is only on account of ongoing dispute with regard to apportionment of retirement benefit and the claim of appointment on compassionate ground amongst the family 4 members of the deceased employees that no unanimity could be arrived in the matter of compassionate appointment. There is, however, no impediment inasmuch as the only objection of the petitioner as against appointment of respondent no. 6 of his being overage for employment in government service is also no longer in existence inasmuch as the competent authority has exercised his power vested in him under the policy of compassionate appointment and has condoned the maximum age limit of respondent no. 6 and an intimation in this respect has also been sent to the District Compassionate Appointment Committee. In such a situation, this Court would direct the respondent to do the needful for considering the appointment of respondent no. 6 in government service, if he is still interested in getting such appointment. A decision for appointment of respondent no. 6 should be taken within a period of three months from the date of receipt/production of a copy of this order and to that extent the Collector of Gaya district is directed to ensure that necessary decision for making recommendation by the 5 District Compassionate Appointment Committee is taken and communicated to the competent appointing authority within a period of two months from the date of receipt/production of a copy of this order. The competent appointing authority will take his further action within next one month so that if the respondent no. 6 is recommended to be appointed by the committee, such appointment may be made within a period of three months from the date of receipt/production of a copy of this order. It is, however, made clear that such appointment of respondent no 6 will be on the usual terms and conditions that he will have to look after interest of the all dependents of deceased employee and in the event there would be any complaint as with regard to neglect of such dependents including the petitioner, appropriate proceeding by way of cancellation of his appointment would be initiated against respondent no. 6. With the aforementioned observations and directions, this writ application is disposed of. kanchan (Mihir Kumar Jha, J.)