IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8099 of 2003 Shiv Narayan Mishra, S/o late Pavitra Narayan Mishra, Resident of Village Barahi, P.O. Barahi, P.S. Nauhatta, District Saharsa. ------ Petitioner Versus 1. The State of Bihar through the Secretary, Department of Water Resources, Govt. of Bihar, Patna. 2. The Director, Land Acquisition & Rehabilitation Department of Water Resources, Govt. of Bihar, Patna. 3. The Rehabilitation Officer, Koshi Project, Supaul. ----- Respondents ----------- For the Petitioner :- Mr. Pramod Mishra, Adv. Mr. Prafull Chandra Thakur, Adv. For the State :- Mr. Zaki Haider, A.C. to G.A.10 6 6.1.2010 Heard learned counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application reads as follows:- “1(i) A writ in the nature of Certiorari setting aside the office order no.133 dated 28.12.2002 issued from the level of respondent no.2 as contained in Annexure-6 by which service of the petitioner has been terminated. (ii) A Mandamus commanding and directing upon the respondents concerned to consider the case of the petitioner in light of his earlier claim for compassionate appointment as his father died in harness and claim in this regard was also made prior to issuance of the impugned order. (iii) A Mandamus commanding upon the respondents to prove all 2 consequential benefits to the petitioner from the date of issuance of impugned order till the date of reinstalement.” Learned counsel for the petitioner very fairly submits that in view of the fact that the appointment made by Mr. Gangadhar Jha, the then Director, Land Acquisition and Rehabilitation in the Water Resources Department had been held to be illegal and consequently most of his appointments have already been cancelled and such cancellations have also withstood challenge either before this Court or before the Apex Court. He, therefore, frankly submits that he will have no issue on the illegal appointment of the petitioner on the basis of which the petitioner had continued in service till 28.12.2002. Learned counsel for the petitioner, however, has raised another issue which in the opinion of this Court in the first instance needs to be decided by the competent authority. Learned counsel says that the father of the petitioner was also a permanent employee of the Water Resources Department and he had died in harness on 12.12.1991, at a point of time the 3 petitioner had already been employed in service with effect from 25.2.1987. Counsel submits that but for the aforementioned appointment of the petitioner on 25.2.1987, the petitioner, being the only son of his parents and the mother not willing to be appointed if the petitioner, had he filed an application for appointment on compassionate ground after the death of his father on 12.12.1991 and he in all probability could have been appointed as he was fulfiling all other criteria for such appointment including that of age as on 12.12.1991. Counsel for the State, however, has relied on paragraph no.5 of the counter affidavit to submit that since the time limit for filing an application for appointment on compassionate ground is only five years and the death of the father of the petitioner had taken place on 12.12.1991, today the petitioner cannot be allowed to take up a new plea as with regard to his appointment on compassionate ground, inasmuch as, the period of limitation of five years has already come to an end. In the opinion of this Court, this is one of those hard cases where the limitation imposed 4 in the circular for appointment on compassionate ground dated 5.10.1991 has to give way to equity. It is not in doubt that the petitioner was duly entitled for consideration of his appointment on compassionate ground on whichever post that was available at the time of the death of his father. The petitioner, however, had not filed such an application only because he was already employed on a Class-4 post on 25.2.1987 and therefore, if the claim for appointment of the petitioner got whittled down only on the ground of his appointment of the year 1987 and in fact which continued till 28th December, 2002, the petitioner would be definitely entitled for a consideration of his case for appointment on compassionate ground by treating him to be the dependent of his deceased father dying in harness. In that view of the matter, this Court would direct the respondent no.2, the Director, Land Acquisition & Rehabilitation Department of Water Resources, Government of Bihar, Patna to consider the case of the petitioner for appointment on compassionate ground on any vacant Class-4 post by condoning the age limit 5 and the period of limitation. The respondent no.2, the Director, would examine as to whether the petitioner otherwise fulfils the criteria for appointment on compassionate ground as per the Government Circular barring age and the period of filing of application and in the event it is found that that the petitioner fulfils such criteria, he will be appointed on compassionate ground on any Class-4 post with prospective effect. It is, however, made clear that neither the petitioner will be entitled for payment of any salary between 29.12.2002 till the date of his appointment on compassionate ground nor he will be entitled to count his previous services, which has been found to be illegal and thus can confer no right or benefit to him. In order to expedite the matter, this Court would give liberty to the petitioner to file a self contained representation to the Director of Land Acquisition & Rehabilitation, Department of Water Resources, Government of Bihar, Patna for his appointment on compassionate ground along with a copy of this order which would be disposed of within a period 6 of four months from the date of filing of such representation. With the aforesaid observation and direction this application is disposed of. Rsh (Mihir Kumar Jha, J.)