IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1845 of 2008 CHATHU YADAV, S/O LATE HARDEO CHAUDHARY, R/O VILLAGE KHARSANDA, POLICE STATION HUSSAINGANJ, DISTRICT SIWAN. ...........RESPONDENTS. Versus 1.THE STATE OF BIHAR. 2.THE DISTRICT MAGISTRATE CUM COLLECTOR, SIWAN, DISTRICT SIWAN. 3.THE ADDL. COLLECTOR, SIWAN, DISTRICT SIWAN. 4.THE SUB-DIVISIONAL OFFICER, SIWAN SADAR. 5.THE CIRCLE OFFICER, HUSSAINGANJ, DISTRICT SIWAN. 6.THE SUPERINTENDENT OF POLICE, SIWAN, DISTRICT SIWAN. 7.THE OFFICER IN CHARGE, HUSSAINGANJ POLICE STATION, DISTRICT SIWAN. ............PETITIONER. For the petitioner: Mr. Udit Narayan Singh, Advocate, Mrs. Vandana Singh and Mr. Radha Krishna Singh. For the respondents: Amarendra Kumar, A.C to G.P.8. ----------- 05/ 01.07.2011 Heard Mr. Udit Narayan Singh, learned counsel for the petitioner and learned counsel for the State. The prayer of the petitioner in this writ application is for issuance of a direction to the respondents to consider the case of the petitioner for his appointment on compassionate ground. Such claim is based on the factual premise that the father of the petitioner had died in harness on 16.11.2000 while working as a permanent Chaukidar in 2 Halka No. 3/9 in Hussainganj Police Station in the district of Siwan. The petitioner in fact also claims that after the death of his father on 16.11.2000, he had been assigned the work of Chaukidar at the same place where his father was working. Mr. Singh, in support of the aforementioned relief would submit that it would be travesty of justice, if the petitioner is denied appointment on compassionate ground especially on the plea of respondents that the father of the petitioner dying not in harness but only as a retired Government Servant itself stands exposed from the admission made in the supplementary counter affidavit that the payment of salary of the father of the petitioner was made up to his date of death i.e. 16.11.2000. He would further submit that the mother of the petitioner had also been sanctioned family pension treating the father of the petitioner to have continued in service till the date of his death i.e. 16.11.2000. Counsel for the State who has filed 3 two counter affidavits would only support the plea of the respondents that the father of the petitioner will be deemed to have retired in the year 1997, inasmuch as, the Medical Board had assessed the age of the father of the petitioner as 57 years as on 09.04.1996, and therefore, he having attained the age of superannuation of 58 years as it was prevalent at that point of time, would be deemed to have retired on 30.04.1997. He has further submitted that mere payment of salary to the father of the petitioner on account of misrepresentation made by him regarding the age will not enable the petitioner either to claim that his father had died in harness or compassionate appointment on the ground of death of the father of the petitioner in harness. Noticing all these aspects, this Court had earlier passed a reasoned order which would be relevant for the purposes of final disposal of this writ application being made by this order. The relevant portion of the order dated 02.05.2011 reads as follows:- “Heard learned counsel for the parties at length. In this case the whole issue as 4 with regard to the claim of compassionate appointment of the petitioner would turn on only one issue, namely, whether the father of the petitioner had died in harness or after his retirement. The case of the petitioner is that his father, while continuing in service, had died in harness on 16.11.2000, whereas, the respondents in their counter affidavit have made the following statement:- “5. That it is respectfully stated and submitted that the father of the petitioner, Late Hardeo Chaudhary did not die in active service, Late Hardeo Chaudhary retired on 30.4.1997 from his service of Chaukidar. Late Hardeo Chaudhary died on 16.11.2000. Hence Hardeo Chaudhary died after more than three years of his retirement from service, Late Hardeo Chaudhary has surprisingly obtain his salary after the date of retirement by duping the authorities. The recovery process has been adopted by the authorities to recover the surplus amount paid to Late Hardeo Chaudhary.” Today, a detailed reply to the counter affidavit has been filed by the petitioner, wherein, it has been asserted that the father of the petitioner had continued in service till the date of his death i.e. 16.11.2000 and in proof of this fact, several documents have been enclosed. In such a situation, this Court would call upon either the deponent of the counter affidavit, namely, Birendra Narayan Pandey, Senior Deputy Collector, Siwan or the Collector of the district to himself swear and file his supplementary counter affidavit meeting the issues raised in the reply to the counter affidavit filed by the petitioner today. Additionally, the documents 5 showing determination of age of the father of the petitioner by the Medical Board and the resultant action taken thereon, must be brought on record with the original thereof for perusal of this Court at the time of hearing of this case. The respondents will be also under obligation to inform on the next date as to whether the length of service by way of qualifying service of the father of the petitioner for the purposes of calculation and payment of pension and other retirement benefit has been taken up to 30.4.1997 or 20.11.2000. This aspect should also therefore be addressed and incorporated in the supplementary counter affidavit. List this case after summer vacation as a tied up matter on 22.6.2011 at the top of the list. Let a copy of this order be given to Sri Rajesh Kumar, learned Government Pleader No.8.” The supplementary counter affidavit which has been filed today in compliance of the aforesaid order of this Court to say the least is absolutely unsatisfactory and at least does not support the plea which was raised either in the counter affidavit or in course of oral submissions as noted in the aforesaid order of this Court dated 02.05.2011. There is in fact nothing to show that after the Medical Board had assessed the age of the father of the petitioner as 57 years on 09.04.1996 any order was issued for 6 superannuating him from service w.e.f. 30.04.1997. In fact when the respondents have themselves admitted that the payment of salary and emoluments of the father of the petitioner for the period from 01.05.1997 to 31.10.2000 to the tune of Rs. 1,47,992/-had been made, it would be wholly unsafe to accept the submission of learned counsel for the State that the father of the petitioner was made to retire w.e.f. 30.04.1997. Thus, when the father of the petitioner was not subjected to any further order pursuant to the report of the Medical Board, it would be also difficult for this Court to negate the claim of the petitioner for appointment on compassionate ground by holding that he was the son of a retired government servant and not a government servant dying in harness. The very fact that the mother of the petitioner had been paid family pension treating the length of service of the father of the petitioner up to his death would also be an evidence of the fact that the respondents have never taken any steps to superannuate him from service before the date 7 of his death. Under such circumstances the father of the petitioner would be deemed to be continuing in service as on the date of his death i.e. 16.11.2000. The petitioner himself claims that he has been allowed to work on the post of Chaukidar which was earlier occupied by his father. Thus the petitioner came to be appointed as Chaukidar though the respondents have not issued any formal order for his appointment on the place of his father, a practice which was then in vogue by way of nomination of the retired Chaukidar who had the option to leave the job by nominating one of his family member. This Court would accordingly, direct the Collector of Siwan district to consider the case of the petitioner for appointment on compassionate ground on the post of Chaukidar and if the petitioner fulfils all other requisite criteria for being appointed as a Chaukidar, his order of appointment as Chaukidar should also be issued. In order to shorten this exercise, 8 this Court would also give liberty to the petitioner to file his self contained representation seeking his appointment on compassionate ground whereafter the case of the petitioner be placed before the District Compassionate Appointment Committee, which would make its necessary recommendation on the basis of which the appointing Authority will pass his consequential order. Such exercise for considering and appointing the petitioner however must be completed within a period of four months from the date of receipt/production of a copy of this order. It however goes without saying that on the strength of this order, the petitioner would not be entitled for any back wages or any further grant or enhancement or any retirement benefits or any other benefits, inasmuch as, this Court has confined its consideration with the solitary claim of the petitioner for appointment on compassionate ground. The apprehension of Mr. Singh, learned counsel for the petitioner that the respondents may now initiate the proceeding 9 for recovery of the amount of salary of the father of the petitioner paid after his death either on the strength of this order or otherwise is wholly misconceived, inasmuch as, when the respondents have not produced any order showing that the father of the petitioner was made to retire on the basis of the report of the Medical Board, he would be deemed to be continuing in service till his death and as a result thereof also entitle for payment of salary for the duty performed by him on the post Chaukidar till the date of his death. With the aforementioned observations and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J)