IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8549 of 2009 Shyam Kumar Kapar . Versus The State Of Bihar & Ors . ----------- 2. 11.08.2011 Heard learned counsel for the petitioner and the State. The petitioner is stated to be the son of late Rameshwar Kapar who died in harness on 25.11.2003 desiring compassionate appointment. He is aggrieved by the order dated 25.1.2007 rejecting his claim on the ground that his elder brother was already in Government service. Learned counsel for the petitioner submits that the elder brother was in service in the Indian Navy at Mumbai and was separate in mess and residence from the petitioner and his mother who were residing within the State of Bihar. Reliance is placed on a Bench decision in 1998(1) PLJR 125 (Bharat Prasad Vs. The State of Bihar & 0rs.) (SJ). Counsel for the State submits that the impugned order itself refers to orders of this Court reported in 2004(4) PLJR 121 (SJ) (Mahabir Paswan Vs. The State of Bihar & Ors.), and for which reason the claim has been denied. Any appointment on compassionate ground has to be strictly in terms of the policy regulating the 2 same. The first entitlement is of the widow and the son comes next. A circular dated 18.2.1995 referred to in the case of Bharat Prasad (supra) mentions that compassionate appointment cannot be denied on the ground that another son was in service if that son was separated and not maintaining the family. The Court left it for the authorities to determine this question of fact after enquiry and consideration in accordance therewith. In Mahabir Paswan (supra) the facts appear different. Both the brothers appear to be residents in or around the locality within the State. There were no allegations that they were separated and not looking after each other. The Court drew an analogy of a sibling rivalry from a Division Bench decision to hold that there could not be competing claims for compassionate appointment within the same family. There are no competing claims or sibling rivalry in the present case. In 2000(4) PLJR 651 (DB) (Ashok Kumar Choudhary Vs. State of Bihar), the clause prohibiting compassionate appointment if the mother and father both were in service and upon the death of one of them fell for consideration. It was held at Paragraph -13 as follows:- “13.…………..The sole purpose of appointment on compassionate ground is to tide over the financial crisis in case of 3 emergency. If at the relevant time the family has financial resources to meet the hardship, then no dependant can be appointed on compassionate ground. …….If one of the spouses dies and the other spouse retires then the dependant is to be appointed on compassionate ground even though the source of livelihood is available to the family in the shape of pension and other retiral benefits…… Thus, the crucial test to decide as to whether a person is to be appointed on compassionate ground or not is to find out whether the family has other sources of livelihood or not at the relevant time to meet the hardship, and once it is found that the financial condition is sufficient to tide over the crisis then no appointment can be made on compassionate ground and the question whether the other spouse is continuing in service or has retired is wholly immaterial.” The crucial test shall therefore be that if as a matter of fact the elder brother of the petitioner though employed, is not supporting the other members of the family and is separate in mess and residence, and the family of the deceased is in dire straits due to financial penury when the consideration of the claim cannot be denied. In each case it shall be a question of fact for the claimant to satisfy the respondents in an enquiry. Liberty is granted to the petitioner to represent before the authorities. The respondents are obliged to hold an enquiry and then pass a reasoned and speaking order recording a finding if the petitioner and his mother was residing with his elder brother and that they were receiving financial support from the elder 4 brother sufficient to entitle them to survive in which event only the claim for compassionate appointment shall be denied. The petitioner naturally has to be associated with the enquiry with the opportunity to meet any queries. This shall be without prejudice to the rights of the respondents to require the petitioner to fulfill all other conditions of eligibility for compassionate appointment. Let such consideration be done and final appropriate order passed within a maximum period of three months from the date of receipt/production of a copy of this order. The writ application stands disposed. P. Kumar ( Navin Sinha, J.)