IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12852 of 2005 SMT.KAUSHALYA DEVI, wife of late Prayag Mahto, resident of Putkadih Tola Chatterborewa, P.S. Peterbar, District Bokaro ……………….. Petitioner Versus 1. The State of Bihar 2. Director, Jal Vigyan Division, Jal Sansadhan Department,Patna 3. Deputy Director, Jal Vigyan Division, Jal Sansadhan Department, Patna 4. Secretary to Govt. of Bihar, Jal Sansadhan Department, Patna 5. Chief Engineer, Jal Vigyan and Yojna, Yojana and Jal Sansadhan Department, Anisabad, Patna 6. Joint Director, Project Preparation Cell, Water Resources Department, Government of Bihar, Patna ……………… Respondents. ----------- For the petitioner :- Mr. Sanat Kumar Mishra, Advocate For the State : - Mr. Shailendra Kumar Ojha, J.C. to SC 9 ---------- 6. 04.12.2008 Heard learned counsel for the parties. The petitioner originally filed the writ petition seeking a direction upon the State-respondents to appoint her son Nakul Prajapati on compassionate ground since her husband and his father Late Prayag Mahto became traceless while working as Choukidar in the office of Director, Jal Vigyan Pramandal, Patna on 5.10.1994 and ultimately after due enquiry by the State Government, was declared dead by letter no. 5054 dated 21.11.2002. During the pendency of the writ petition an order dated 2.9.2008 (Annexure-6) was passed and communicated by memo dated 3.9.2008 (Annexure-7), the first by the Under Secretary, Water Resources Department, Government of Bihar and the second by the Joint Director, Project Preparation Cell, Water Resources Department, Government of Bihar, Patna by which the application of the petitioner for appointment on compassionate ground was rejected and the petitioner was permitted to challenge the - 2 - same by this Court. The ground for rejection is that, according to the letter dated 1.2.2006 of the Personnel and Administrative Reforms Department, on the disappearance of a government servant and the same being deemed as his death having taken place after seven years, the benefit of appointment on compassionate ground is not available to a dependent of such government servant. Learned counsel for the petitioner in support of his stand relies upon two decisions of this Court. In the case of Smt. Kamla Devi and Sudhir Kumar Vs. The State of Bihar & ors.: 2005(2) PLJR 155, it has been held in para-2 whereas as follows:- “On 7th March, 1994, the father of petitioner no. 2, a Government employee, was found untraceable. The appropriate police complaints were made. However, the father of petitioner no. 2 could not be traced. Even after expiry of seven years from the date the father of petitioner no. 2 was found untraceable, he could not be traced. In such circumstances, in view of the provisions contained in the Evidence Act, a presumption of the death of the father of the petitioner no. 2 is to be drawn. Accordingly, such presumption has been drawn. In terms of the presumption, the death occurred not after expiry of seven years from the date when the person stood untraceable but from the date the person was found untraceable. In such view of the matter, the date of death of the father of the petitioner no. 2 relates back to 7th March, 1994. The petitioner no. 2 after obtaining necessary death certificate applied for compassionate appointment; that has been rejected only on the ground that in terms of the government policy there is no scope of giving appointment to a person who is presumed to be dead in terms of the provisions of the Evidence Act. A learned Single Judge of this Court in the case of Renuka Rai Vs. The State of Bihar and others reported in 2002(2) PLJR 46 has held that the law is that when word “death” is to be construed and understood, the same should take into account not only death occasioned as a natural consequence but also by reason of the presumption laid down by the Legislature in the Evidence Act. In such view of the matter, respondents ought to have decided the application of the petitioner in accordance - 3 - with law and should have brought the same to a logical conclusion which they have not done for no just reason.” The other case relied upon by learned counsel for the petitioner is that of Md. Noor Alam Vs. The State of Bihar and others: 2007(4) PLJR 200 and its analogous cases in which it has been held by this Court in para-3 as follows:- “ Having heard counsel for the parties and having perused the pleadings filed by them including different circulars relied on during the hearing of the writ petition, namely, Circular Letter No. 13293 dated 5th October, 1991, Circular Letter No. 9739 dated 26th November, 1997, Annexure-12 to the supplementary affidavit, and the Circular Letter No. 281 dated 1.2.2006, Annexure-A, I am of the view that the State Government has already taken a decision which is contained in Circular Letter No. 9739 dated 26th November, 1997, Annexure-12 to the supplementary affidavit to consider the case of the dependents of those Government Servants who have remained traceless for seven years for appointment on compassionate ground which decision has not been revised in the subsequent Circular bearing Letter No. 281 dated 1.2.2006, Annexure-A. In the circumstances, I have no option but to quash the order bearing Letter No. 49 dated 10.2.2005, Annexure-9/Office Order No. 122 dated 31st August, 2005, Annexure-2/Memo No. 260 dated 3.2.2004, Annexure-5/Memo No. 1629 dated 2.8.2005, Annexure-8 and to direct that the State Government is duty bound to consider the case of the petitioners in the light of the instructions contained in Circular Letter No. 9739 dated 26th November, 1997, Annexure-12 to the supplementary affidavit but while considering their case for such appointment the State Government/competent authority of the department concerned shall take into account the family income of the traceless Government Servant from other sources; movable/immovable properties on the basis of which the family survived during the preceding years. Such information is sought for in the application form for compassionate appointment as provided in Circular Letter dated 5.10.1991 and if the family members/dependents survived the intervening seven years in penury then they shall be granted compassionate appointment, otherwise not. The case of the petitioners for compassionate appointment shall be considered as early as possible, in any case within a period of three months from the date of receipt/production of a - 4 - copy of this order before the Secretary, Personnel and Administrative Reforms Department/Secretary, Minor Irrigation Department/Environment and Forest Department, Bihar, Patna/Secretary, Bihar State Electricity Board, Patna/ District Magistrate-cum- Chairman, District Compassionate Committee, Patna.” In the Md. Noor Alam’s case (supra) this Court had considered the Circular Letter No. 281 dated 1.2.2006 on the basis of which the case of the present petitioner has been rejected and it was held that the decision taken by the State Government in Circular Letter No. 9739 dated 26.11.2007 to consider the case of the dependents of those government servants who have remained traceless for seven years for appointment on compassionate ground has not been revised in the subsequent letter No. 281 dated 1.2.2006. It was accordingly, directed in the said case to consider the case of the petitioners therein for compassionate appointment as early as possible. The writ application is accordingly allowed. The impugned orders dated 2.9.2008 (Annexure-6) and 3.9.2008 (Annexure-7) are quashed and the respondent-authorities are directed to consider the case of the son of the petitioner, namely, Nakul Prajapati within a period of three months from the date of receipt/production of a copy of this order in terms of the directions issued by this Court in Md. Noor Alam’s case (supra). S.Pandey (Ramesh Kumar Datta, J.)