IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2662 of 2008 Niraj Kumar, son of late Sudershan Prasad, Resident of Village Ambika Nagar, Laxmanchok, Motihari, P.S. Banjariya, P.O. & District East Champaran. ---------- Petitioner Versus 1. The State of Bihar. 2. The Collector cum Chairman, District Compensate Committee, Patna, Bihar. 3. The Managing Director, Bihar Rajya Bhandar Nigam, Maurya Complex, Patna. --------- Respondents ----------- 2 22.4.2011 Heard learned counsel for the petitioner and learned counsel for Bihar State Ware Housing Corporation. The petitioner has assailed the decision taken by the authority contained in the impugned order dated 18.1.2006 which has also been reiterated in the subsequent impugned order dated 18.3.2006 contained in Annexure nos. 6 & 7 respectively on the ground that the rejection of the case of the petitioner for appointment on compassionate ground by holding such application filed by the petitioner to be time barred is based on an apparent error of record. Counsel for the petitioner in this regard would submit that when the father of the petitioner had died on 23.3.1996, an application was filed by the petitioner 2 seeking his compassionate appointment in the year 1997 and, therefore, when the period of limitation is five years, the view taken by the authority of such application of the petitioner being time barred is obviously incorrect. Counsel for the respondents would submit that from the petitioner’s averment made in the writ application as also the impugned order, it would be clear that the application for compassionate appointment was filed by the petitioner on 2.12.2005 only after he had been given a succession certificate from the competent court. He would submit that the application filed by the petitioner on 2.12.2005, therefore, being after more than nine and half years of the death of the deceased employee was definitely not maintainable and, in fact clearly barred by the period of limitation of five years. Counsel for the petitioner in reply would submit that the application filed by the petitioner on 2.12.2005 was actually in continuation to the earlier application filed by the petitioner in the year 1997 and for 3 this purpose, he would rely on the contents of Annexure-1 to the writ application wherein he had submitted his certificate relating to date of birth in response to the letter of the Corporation bearing no. 1889 dated 2.7.1997. He would submit that when in response to the application filed by the petitioner a query was made from him about his date of birth was, it would be wholly illogical to accept the case of Corporation that the application for compassionate appointment of the petitioner was filed only on 2.8.2005. Such submission of the learned counsel for the petitioner however has to be only noted for its being rejected. First of all, there is no clear averment in the writ application as with regard to the date of filing of the application for compassionate ground. The reference to paragraph no.6 to the writ application by the learned counsel is also absolutely misconceived, inasmuch as, what has been said in paragraph no.6 reads as follows:- “6. That the petitioner applied for his appointment on the basis of 4 compensate ground and he also given application for payment of all death-cum-retiral dues. It is relevant to mention it here that the petitioner is an adopted son of late Sudershan Prasad. The respondents vide letter no.1889 dated 02.07.1997 invited birth certificate from the petitioner and as such on 11.08.1997 the petitioner submitted his birth certificate before the respondents.” From reading of the said averment, it would be clear that the petitioner has dishonestly suppressed the date of filing of his application for compassionate appointment and, therefore, if the petitioner has neither annexed copy of such an application allegedly filed by him in 1997 nor has produced any proof of filing of such application seeking appointment on compassionate ground, a mere oral submission of the learned counsel for the petitioner to this effect cannot be accepted. The averment in the writ application, capable of being supported by documents, has to be specifically annexed as was held by the Apex Court in the case of Bharat Singh & Ors. Vs. State of Haryana & Ors. reported in 1988 SC 2181:- 5 “13. As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter- affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter- affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code 6 of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit.” Thus, lack of averment in the writ application is itself good enough to reject the submission of the learned counsel for the petitioner. However, this Court has also carefully gone into the contents of the letter of Corporation contained in Annexure-1 dated 2.7.1997 as with regard to the petitioner being asked to produce the certificate of date of birth and the reply submitted by the petitioner and on their simultaneous perusal the wholly mystery gets unfolded. By reading of Annexure-3 containing the communication of the Managing Director of the Corporation dated 26.8.1997, it becomes 7 clear that the payment of arrears of amount payable to father of the petitioner was a subject matter of independent consideration in the Corporation and the Corporation had found that since the petitioner had claimed to be an adopted son of the deceased employee and there was no legal document in support of the same, the petitioner was advised to obtain succession certificate for getting payment of such money. It, therefore, becomes clear that whatever application was filed by the petitioner in the year 1997 was confined to claiming payment of arrear of amount and did not relate to his appointment on compassionate ground. There seems to be sufficient force in the contention of the learned counsel for the respondents that actually when the petitioner had got such succession certificate on 26.4.2005, he had filed his application on 12.5.2005 initially for claiming benefit of arrear of amount of deceased employee. In fact, even in his application dated 12.5.2005, which was filed by the petitioner after obtaining the succession certificate, 8 there is no whisper of his claim for compassionate appointment and, therefore, it would not be difficult to understand that the petitioner’s application for appointment on compassionate ground was filed only on 2.12.2005 as is also clearly mentioned in the impugned order itself. Once this aspect becomes clear that the petitioner had filed his application on 2.12.2005 that by itself would make him disentitled to claim appointment on compassionate ground, inasmuch as, such application would be barred by limitation of five years prescribed for appointment on compassionate ground. As a matter of fact, this writ application assailing the order dated 18.1.2006 and 18.3.2006 came to be filed on 4.2.2008 i.e. almost after two years of the rejection of the case of the petitioner and today after fifteen years of the death of the deceased employee, this Court would find it difficult to now allow him to raise a question of compassionate appointment, inasmuch as, the family has survived in this 9 period and there would be, therefore, now no need to give compassionate appointment to the petitioner. For all these reasons, this Court would not find any merit in this writ application and the same is, accordingly, dismissed. Rsh (Mihir Kumar Jha, J.)