IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13562 of 2007 Laloo Prasad Yadav, S/o late Rajendra Yadav a resident of at + P.O.+P.S. Asawan and District Siwan. ------- Petitioner Versus 1. The State of Bihar through the Chief Secretary, Old Secretariat, Govt. of Bihar, Patna. 2. The Secretary-cum-Commissioner, Department of Commercial Taxation, Old Secretariat, Govt. of Bihar, Patna. 3. The Joint Commissioner, Deptt. of Commercial Taxation, Tirhut Sub-Division, Muzaffarpur, Distt. Muzaffarpur. 4. The District Magistrate, Gopal Ganj, District Gopalganj. 5. The Assistant Commissioner, Deptt. of Commercial Taxation Circle, Gopalganj, Disttl Gopalganj. --------- Respondents ----------- 2 8.4.2011 Heard learned counsel for the petitioner and counsel for the State. The prayer of the petitioner for appointment on compassionate ground is sought to be opposed by the respondents by taking a plea that the appointment of the father of the petitioner was found to be illegal and irregular in the report of Saryu Prasad, Joint Commissioner, Commercial Taxes, Headquarters. It has further been mentioned that despite a ban on appointment imposed by the Commercial Tax Department in the letter dated 22.12.1980, the father of the petitioner came to be appointed on 9.1.1981. On the basis of these facts stated in the statement of fact furnished by the Department 2 in its letter no. 5605 dated 13.12.2007, it has been sought to be conveyed that the petitioner’s appointment cannot be made on compassionate appointment, inasmuch as, the Government policy dated 5.10.1991 envisages that the deceased employee must have been working on a sanctioned post and his appointment must have been made in the prescribed procedure. Counsel for the petitioner would submit that the plea of lack of sanctioned post for the father of the petitioner is wholly untenable, inasmuch as, the mother of the petitioner is being paid family pension, which would not have been admissible had the deceased father of petitioner been worked on unsanctioned post. He would further submit that the plea of prescribed procedure, having not been undergone, cannot be raised against the petitioner, inasmuch as, no proceeding for cancellation of his illegal appointment of the father of the petitioner had ever been initiated in his life time. The plea of discrimination, as raised by the petitioner, has been sought to 3 be repelled by the authorities in their statement of fact by stating that father of Kanhaiya kumar, namely, Ajay Kumar Prasad was appointed on the post of Clerk by the Joint Commissioner of Gaya Division, Commercial Taxes Department on 3.1.1980 whereas the ban for appointment against unsanctioned post was imposed only on 22.12.1980. From the said explanation, it does not become clear as to whether the appointment of Ajay Kumar Prasad was against unsanctioned post or sanctioned post. All these aspects, in fact, would require re-consideration and, therefore, this Court, instead of keeping this writ application pending, would remit the matter back to the authorities to re-consider the case of the petitioner on merit and if it is found that the mother of the petitioner has already received family pension and no action whatsoever was taken for cancellation of appointment of the father of the petitioner in his life time, the petitioner will be deemed to be qualified for being considered for appointment on compassionate appointment. 4 This Court, however, must make it clear that over ultimate decision on merit as with regard to the admissibility of compassionate appointment to the petitioner will be decided by the authorities but, then, the same will not be rejected on account of the post being not sanctioned for his father or appointment of the father of the petitioner being not in the prescribed manner. If, however, it is found that the petitioner’s mother has been paid family pension without there being sanctioned post and that there was already a pending proceeding for cancellation of illegal appointment of the father of the petitioner, nothing would come in the way of the respondents in passing a reasoned order by rejecting the case of the petitioner. It is, however, also made clear that in that event the respondent will be under obligation to deal with the case of similarly situated person, namely, Kanhaiya Kumar, inasmuch as, it is the specific averment of the petitioner that even his father, namely, Ajay kumar Prasad was alleged to be illegally appointed 5 and is said to be working against an unsanctioned post. Since the petitioner has been awaiting the final result on his application for compassionate ground for a very long time, this Court would direct the competent authority to take his final decision within a period of six months from the date of receipt/production of a copy of this order. With the aforementioned observations, this application is disposed of. Rsh (Mihir Kumar Jha, J.)