IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9771 of 2007 PRAKASH KUMAR THAKUR @ PRAKASH THAKUR, son of late Shiva Kant Thakur, resident of Siphali Tola, Baksha Ghat, P.S. Vay Hat, District Purnea … Petitioner Versus 1. B.N.MANDAL UNIVERSITY through its Registrar, Laloo Nagar, Madhepura 2. Vice Chancellor, B.N.Mandal University, Laloo Nagar, Madhepura 3. Registrar, B.N.Mandal University, Laloo Nagar, Madhepura 4. Principal, Purnea Mahila College, Purnea … Respondents ----------- 2. 7.4.2011 Heard Mr. Amit Prakash, learned counsel for the petitioner and Mr. Hemendra Prasad Singh, learned counsel for B.N.Mandal University. The petitioner seeks a direction from this Court for consideration of his appointment on compassionate ground taking a plea that her mother being an employee of Purnea Mahila College, Purnea died in harness on 9.9.2001 and on the petitioner’s application seeking appointment on compassionate ground though filed in the year 2004 no order thereon had been passed which has compelled the petitioner to file this application on 6.8.2007. Mr. Hemendra Prasad Singh, learned counsel for the University, would submit that the case of the petitioner was 2 considered by the competent authority of the University on 9.2.2006 and the Committee had rejected the same on the ground that since the mother of the petitioner was also appointed on 13.9.1991 by way of a compassionate appointment, no further compassion could be shown to the petitioner after the death of her mother by way of appointing him in service. He would further submit that the Committee had also taken into account that the petitioner did not possess the requisite qualification for being appointed even on a Class IV post, inasmuch as he had passed the examination of Class VII only, whereas the minimum requisite qualification even for a class IV post of Peon in the College as prescribed by the Government is having passed the examination upto Class VIII. It would be difficult for this Court to go into the exact reasons for declining compassionate appointment of the petitioner, inasmuch as neither there is any counter affidavit nor the decision of the Committee dated 9.2.2006 has been brought on record by the counsel for the University. 3 Prima facie on the basis of oral submission of Mr. Singh this Court can only hold that the first reason is absolutely non est in the eye of law. It is not requirement of the policy of compassionate appointment that if one person has already been given appointment on compassionate ground and that person continues in service, the dependents of the family of such an employee cannot be given compassionate appointment after the death of the person who was employed by way of compassionate appointment. The concept of being in service to the deceased employee is attached to his or her status on the date of death of the employee and if the mother of the petitioner after the death of the father of the petitioner was employed on 13.9.1991 and had continued in service for almost ten years, it cannot be said that the petitioner, being dependent of the university servant, the mother of the petitioner, would not qualify for being considered for appointment on compassionate ground. It is not the case of the University that the petitioner was seeking compassionate appointment on account of 4 death of his father and in fact when the father of the petitioner had died it was the mother who had already been appointed on compassionate ground, whereafter it is the death of the mother which has led to the present situation. The circular of the State Government dated 5.10.2001 also lays down that only two requirements as with regard to the deceased employee would be necessary for consideration of the case of his or her dependent, namely, the deceased employee must be working against a sanctioned post and such appointment of the deceased employee must have been made in the prescribed manner. Therefore, it cannot be said that when the mother of the petitioner was working in the College for ten years after being appointed on compassionate ground on account of death in harness of the father of the petitioner she was either not working against the sanctioned post or her appointment was not made in the prescribed manner. The twin test having been fulfilled by the mother of the petitioner, the petitioner would be definitely eligible for 5 consideration of his case and at least his claim could not have been rejected on the ground that her mother was also appointed on compassionate ground. The second aspect of the matter, however, would need some serious enquiry, inasmuch as the mother of the petitioner had died in the year 2001 and the petitioner claims to have filed an application in the year 2004. The limitation for filing application in such cases would be for a period of five years and therefore, if the petitioner even upto the last date of limitation period of filing of compassionate appointment would have acquired qualification of passing Class VIII he will be deemed to have fulfilled the requirement of minimum eligibility qualification. It has to be taken into account that though the petitioner had filed his application some time in the year 2004 but the University took at least two years in deciding the case and as orally submitted by Mr. Singh a decision was taken only on 9.2.2006. Thus, if the petitioner was eligible even upto the date of consideration by having passed Class 6 VIII examination his case could not have been rejected even on the ground of educational qualification. For drawing this analogy this Court would find support from the Division Bench judgment of this Court in the case of Anil Kumar Singh & ors. vs. The State of Bihar & ors., reported in 1993(1) PLJR 414, where this question with regard to qualifying for appointment on compassionate ground on the basis of age was considered and it was held that even in the period of limitation prescribed by the Government for appointment on compassionate ground one would become major, he would be entitled for compassionate appointment but only when he would not become major upto the last date of application then alone his case can be rejected on account of his being disqualified on the requirement of minimum age. Similar is the position here of a dependent of an employee seeking compassionate appointment who was undergoing education and had to seek employment on account of sudden crisis created due to death of his mother, therefore, if he had filed his application in the year 2004 by 7 claiming to have passed Class VII and was still studying and had passed Class VIII examination in the interregnum period before the Compassionate Appointment Committee had considered his case on 9.2.2006, his case cannot be rejected even on the ground of lack of educational qualification. On the other hand, if it is an admitted fact that the petitioner had not passed his Class VIII examination even in the period of limitation of five years or at least on the date his case was considered by the Compassionate Appointment Committee i.e. on 9.2.2006, the authorities of the University will be fully justified in rejecting the case of the petitioner on the ground of his being not qualified for a Class IV post. As there is no counter affidavit and the resolution of the University dated 9.2.2006 declining compassionate appointment of the petitioner is also not on record, this Court would remit the matter back to the competent authority of the University who now will consider the case of the petitioner afresh in the light of the discussions and observations made above. 8 It is, however, made clear that this Court has not decided the question on merit as to whether the petitioner would be entitled for appointment on compassionate ground and its aforesaid observations has been made on the basis of oral stand taken by the learned counsel for the University. This Court thus while remitting the matter back to the University would direct its competent authority to consider the case of the petitioner strictly in accordance with law and therefore, this Court would expect the authorities of the University to give a fresh consideration to the case of the petitioner. Such exercise must be completed within a period of four months from the date of receipt/ production of a copy of this order. It will be open for the petitioner to also file a compact representation enclosing a copy of this order before the Registrar of the University wherein he may produce the certificate of his passing Class VIII examination (if he has so passed within five years of the death of her mother) and upon filing of such application the matter 9 will be decided strictly in accordance with the policy of compassionate appointment within the time limit indicated above. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/