IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11957 of 2007 Manish Kumar, son of late Nand Kishore Singh, Resident of Village Bishnupura, Police Station Bihta, District Patna. -------- Petitioner Versus 1. The State of Bihar. 2. The District Magistrate, Bhojpur (Ara). 3. The Deputy Collector (Establishment) Bhojpur (Ara). 4. The Registrar, Co-operative Societies, Bihar, Patna. 5. The District Audit Officer, Co-operative Societies, Bhojpur (Ara). --------- Respondents ----------- 5 28.6.2011 Heard Mr. Bidhyachal Singh, learned counsel for the petitioner and Mr. Gautam Bose, learned AAG-8 for the State. Pursuant to the last order of this Court dated 16.5.2011, Mr. Bose has filed supplementary counter affidavit, which has been taken on record. Mr. Bose in compliance of the order of this Court dated 16.5.2011 has also produced the then In-charge, District Audit Officer, Bhojpur, namely, Mr. Balister Prasad. This Court has looked into the relevant documents of the office of the District Audit Officer, Bhojpur as also of the Collector of the Bhojpur district and from them, it becomes clear that the then In- 2 charge District Audit Officer had at least no control over the affairs of his office. In fact, even today, he is not in a position to explain the reason for receipt of the application filed by the petitioner for appointment on compassionate ground on 18.11.2002 and its being entered into the receipt register on 14.12.2002. He has, in fact, conveniently passed on the buck to his Head clerk, who now is neither in service nor in fact even alive. Though there are many aspects, which would create serious doubt on the receipt of the application filed by the petitioner seeking appointment on compassionate ground within a prescribed period of five years but, then, at the end of the day, the benefit of doubt would go in his favour keeping the laudable object of giving shelter/protection to the members of the deceased family. True it is that there may be a world of difference between the date of 18.11.2002 and 14.12.2002 in respect of receipt of application of the petitioner, inasmuch as, if the petitioner’s application is held to have been received on 14.12.2002 as would be 3 evidenced from the receipt register, such application of the petitioner would become time barred in view of the fact that death of his father had taken place on 28.11.1997. There are, however, two persons’ by way of signatories in token of proof of receipt of the aforesaid application dated 18.11.2002 and one of them being Mr. Balister Prasad, the then In-charge, District Audit Officer, Bhojpur, when he has come out to support the receipt of the petitioner’s application in his own pen and handwriting, the same has to be accepted, specially when the departmental authorities, having conducted a departmental proceeding against him for this very charge, have also exonerated him by recording that he was in no way responsible for ante-dating of the application filed by the petitioner. True it is that such order of exoneration of the petitioner has been passed by giving him only benefit of doubt and a warning to remain vigilant and careful in future but then that aspect would definitely now lead to a more favourable situation for the petitioner, inasmuch as, the said decision of the authority was not placed before the District 4 Compassionate Appointment Committee when the impugned order had been passed on 11.2.2006. In fact, the order of the Registrar of the Cooperative Society contained in his memo no. 5052 dated 10.9.2010 is a fresh material, which reads as follows:- ^^dk;kZy;] fuca/kd] lg;ksx lfefr;kW] fcgkj] iVukA vkns'k Jh cfyLVj izlkn] vuqeaMy vads{k.k inkf/kdkjh] lg;ksx lfefr;kW&lg&rRdkyhu izHkkjh ftyk vads{k.k inkf/kdkjh] Hkkstiqj ¼vkjk½ ds fo:) vuqdEik ds vk/kkj ij fu;qfDr gsrq vkosnd }kjk foyac ls lefiZr vkosnu dh izkfIr frfFk esa gsjQsj dj dkyck/k ls cpkus gsrq Qjsc djus ,oa iz'kklu dks xqejkg djus vkfn ds vkjksi esa foHkkxh; vkns'k Kkikad 1425 fnukad 06@03@2008 ds }kjk foHkkxh; dk;Zokgh lapkfyr dh xbZ Fkh ftlds lapkyu inkf/kdkjh ftyk lgdkfjrk inkf/kdkjh] Hkkstiqj ¼vkjk½ fu;qDr fd;s x;sA lapkyu inkf/kdkjh ls izkIr vf/kxe] vkjksiokj] vkjksih inkf/kdkjh ds Li"Vhdj.k rFkk lk{;ksa ds lE;d leh{kksijkUr vkjksih inkf/kdkjh ds fo:) vkjksi izekf/kr ugha ik;s x;s gSA vr,o vkjksih inkf/kdkjh dks Hkfo"; esa dk;Z lEiknu gsrq lrdZ jgus dk funs'k nsrs gq, muds fo:) lapkfyr foHkkxh; dk;Zokgh lekIr dh tkrh gSA g0@& fuca/kd] lg;ksx lfefr;kW] fcgkj] iVukA Kkikad 5052@iVuk] fnukad 10-09-10 Izfrfyfi% la;qDr fuca/kd] lg;ksx lfefr;kW] iVuk izeaMy] iVuk@ftyk lgdkfjrk inkf/kdkjh] Hkkstiqj ¼vkjk½ftyk vads{k.k inkf/kdkjh] Hkkstiqj ¼vkjk½iz'kk[kk inkf/kdkjh 5&fu0@Jh cfyLVj izlkn] vuqeaMy vads{k.k inkf/kdkjh] lg;ksx lfefr;kW] Hkkstiqj ¼vkjk½ dks lwpukFkZ ,oa vko';d dkjZokbZ gsrq izsf"krA g0@& fuca/kd] lg;ksx lfefr;kW] fcgkj] iVukA** Thus, the aforesaid order would at least take away the allegation against the petitioner of filing an application on 5 14.12.2002 after expiry of the period of limitation. If Mr. Balister Prasad could be given benefit of doubt for the said charge, the petitioner would also definitely deserve a consideration of his case for appointment on compassionate ground on merits. Considering all these aspects, this Court would quash the impugned resolution passed by the District Compassionate Appointment Committee in the meeting held on 11.2.2006 so far it relates to the petitioner and direct the said Committee to re-consider the case of the petitioner on merits by treating the application filed by the petitioner seeking appointment on compassionate ground to have been filed within the prescribed period of five years. It is made clear that this Court has not gone into the merit of the claim of the petitioner for such appointment on compassionate ground, inasmuch as, it will be for the Committee to take into account whether the amount of family pension or other death-cum-retirement benefit paid to the family of the petitioner would be sufficient to meet the present liability of the family 6 of the deceased employee. This aspect of the matter, in fact, stands settled in the judgment of the Apex Court in the case of Umesh Kumar Nagpal Vs. State of Haryana & Ors. reported in 1994(4)SCC 138, wherein, it has been held as follows:- “4. It is for these reasons that we have not been in a position to appreciate judgments of some of the High Courts which have justified and even directed compassionate employment either as a matter of course or in posts above classes- III and IV. We are also dismayed to find that the decision of this Court in Sushma Gosain v Union of India has been misinterpreted to the point of distortion. The decision does not justify compassionate employment either as a matter of course or in employment in posts above classes III and IV. In the present case, the High Court has rightly pointed out that the State Government's instructions in question did not justify compassionate employment in class- II posts. However, it appears from the judgment that the State Government had made at least one exception and provided compassionate employment in class II post on the specious ground that the person concerned had technical qualifications such as M.B.B.S, B.E, B. Tech etc. Such exception, 7 as pointed out above, is illegal, since it is contrary to the object of making exception to the general rule. The only ground which can justify compassionate employment is the penurious condition of the deceased's family. Neither the qualifications of his dependent nor the post which he held is relevant.” (underlining for emphasis) Thus, this Court would direct the competent authority to consider the case of the petitioner in the light of the policy of the State Government of Bihar for appointment on compassionate ground in vogue as also strictly in accordance with law laid down by the Apex Court in Umesh Kumar Nagpal (supra). Keeping in view that the matter has remained under consideration either before the authority or before this Court for a period of almost ten years, this Court would direct the Collector of the Bhojpur district (Respondent No.2) to place the matter relating to the appointment of the petitioner on compassionate ground before the Committee for its passing an appropriate resolution as with regard to making suitable recommendation for appointment of the petitioner on compassionate ground within a period of four 8 months from the date of receipt/production of a copy of this order. It goes without saying that if the Committee would make a favourable recommendation for appointment of the petitioner the same shall be given the effect to within next two months by the appointing authority by providing him employment on any vacant post, even a class-IV post. With the aforementioned observations and direction, this application is disposed of. The personal appearance of Mr. Balister Prasad, the then District Audit Officer, Bhojpur, Ara is dispensed with. The original records received and retained in custody of this Court be also returned to the learned AAG-8 for its being transmitted to the concerned office. Rsh (Mihir Kumar Jha, J.)