IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.265 of 2006 (1) NARESH RAI @ NARESH TANTI (2) MOST. LAGNI DEVI Vs. (1) The State of Bihar, (2) The Collector, Katihar, (3) The Sub-divisional Officer, Manihari, (4) The Superintendent of Police, Katihar,(5) The officer-in- charge, Manihari Police Station, (6) Bhola Rai and (7) The Deputy Collector Incharge, District General Section, Katihar. --- For the petitioners: M/s. S.K. Das and Ratna Das For the State : Mr. Sunil Kumar, J.C. to AAG X. For Respondent No.6: Mr. Sanjeev Kumar Singh,Advocate --- 5. 20.10.2008 Heard learned counsel for the petitioners, learned counsel for the State- respondents and learned Counsel for Respondent No.6. The petitioners have come to this Court seeking a direction upon the respondents to appoint petitioner No.1 on compassionate ground after quashing Annexures 10 and 11 respectively, by which respondent No.6 has been given appointment on compassionate ground and the representation of the petitioners for appointment of petitioner No.1 on compassionate ground has been rejected by order contained in memo No. 791 dated 3.9.2005 and the order contained in memo No.898 dated 26.9.2005. The facts relevant for the decision of the present matter are that one Garbhu Tanti, father of petitioner no.1 and husband of petitioner No.2 died while still in service as Chaukidar posted under Manihari Police Station in Katihar District. Respondent No.6 filed an application for appointment on compassionate ground on 18.7.1996, which was forwarded by the officer-in-charge of the Police Station to the 2 Collector, ( respondent No.2) for his appointment. The admitted position is that the said Garbhu Tanti was legally married to petitioner No.2, Lagani Devi. It is also admitted that upon no issue being born to Lagani Devi, the said Garbhu Tanti, with the consent of petitioner No.2, married one Dukhani Devi from whom petitioner No.1 Naresh Rai alias Naresh Tanti was born. Subsequently on the death of his elder brother, he also married his widow, namely, Parwati Devi from whom Respondent No.6, Bhola Rai was born. The petitioners claim that immediately after the death of said Garbhu Tanti, they had approached the Officer-in- charge, Manihari Police Station (respondent No.5) with the application of petitioner No.1 for appointment on compassionate ground: the said Officer-in-charge had taken thumb impressions and signatures in a blank paper from the petitioners for necessary use. It is alleged that the said thumb impressions taken on a blank paper were utilized by the Officer- in-charge in connivance with respondent No.6 for the purpose of affidavits sworn by the petitioners in favour of respondent No.6. On learning about the said fraud and forgery committed by respondent No.6, the petitioners wrote to the Collector on 13.5.1997, which was followed by a lawyer’s notice dated 30th September, 1997 in which the entire facts were stated and the claim of the petitioner No.1 for compassionate appointment was reiterated. The petitioner filed Succession Case No. 21/1997 in which also ( although not appropriately) a claim for appointment on compassionate ground in place of late Garbhu Tanti was made. The court below, while deciding the succession case, rightly held that the decision on the question of compassionate appointment 3 was outside the purview of the said proceedings. Despite the said fact, the District Compassionate Appointment Committee under the Chairmanship of the District Magistrate met on 30.8.2005 and recommended to appoint respondent No.6, Bhola Rai, on compassionate ground in place of late Garbhu Tanti, whereupon he was appointed on compassionate ground by impugned Memo No.791 dated 3.9.2005. The further representation of the petitioners before the Collector was also rejected by the impugned order bearing memo No. 898 dated 26.9.2005 stating that since the said Bhola Rai has been declared as a legitimate child and has been given 1/5th share by the Court and all the three widows had given affidavits in favour of the said Bhola Rai, hence, the application of the petitioners for compassionate appointment was rejected. Learned counsel for the petitioners submits on the basis of the aforesaid facts and the materials on the record that from the very beginning the moment the petitioners learnt about the fraud committed upon them by the Officer-in-charge, Manihari Police Station in connivance with respondent No.6, they had approached the authorities, including the Collector, Katihar by filing various representations and applications, which have been brought on the record, and also by sending a lawyer’s notice in the year 1997 itself. It is submitted that the recommendation made by petitioner No.2, being the first legally wedded wife of late Garbhu Tanti, would stand on a higher footing and since the fraud played by respondent No.6 had been brought to the notice of the authorities, including the Collector, at a very early stage there was no 4 justification for the authorities to consider and allow the application for compassionate appointment made by respondent No.6. Learned counsel for respondent No.6, on the other hand, supports the action of the authorities on the ground that both the petitioners and the other two widows of the deceased Garbhu Tanti had sworn affidavits in favour of respondent No.6 and thus the authorities had rightly decided the matter for compassionate appointment in his favour. On a consideration of the entire facts and circumstances of the case, this Court does not find any justification in the action of the authorities in granting compassionate appointment to respondent No.6. It is evident that at a very early stage in the year 1997 itself both the petitioners had approached the Collector pointing out the fraud played by the Officer-in-charge of Manihari Police Station in conspiracy with respondent No.6. It is evident that only the thumb impressions of the two petitioners and the others were there on the affidavit, whereas the affidavits themselves are in English. From perusal of the affidavits in question, which have been brought on the record by respondent No.6, it is clear that in the affidavits of the three widows, the typing has been made over the thumb impressions also and there is no back space left for the deponents to put their thumb impressions upon the same. It is evident from the said affidavits that the thumb impressions were taken prior to the matter being typed on the blank papers and prima facie it supports the allegations made at the very inception by the petitioners regarding the fraudulent action of respondent No.6 taking the Officer-in-charge of 5 the Manihari Police Station in connivance. Considering the facts and circumstances of the case, this Court finds that the petitioners had merely given their thumb impressions and thereafter informed the authorities about the circumstances and purpose for which it was given on blank paper, and therefore the respondent authorities ought not to have treated the matter as being finally concluded by the mere existence of the thumb impressions of so-called three widows. The other aspect which ought to have been taken into consideration is that only petitioner No.2 can be considered as legally wedded wife of late Garbhu Tanti since under the provisions of the Hindu Marriage Act any marriage during the subsistence of a valid marriage of a Hindu is void and non est from the very beginning; hence, the two other so- called widows cannot be considered as widows of the deceased, Garbhu Tanti in the eye of law. However, under the provisions of Hindu law the children born even from such union have been given a legitimate status and for the said reasons the cases of petitioner No.1 and also respondent No.6 could have been taken up for consideration for the purpose of compassionate appointment. However, in that regard the affidavits of the other two so- called widows of late Garbhu Tanti could have no relevance for the decision of the matter and so far as petitioner No.2, Lagani Devi, is concerned, from the very beginning she has stated that she had approached the Officer-in-charge of Manihari Police Station for the compassionate appointment of petitioner No.1. Thus, on a consideration of the aforesaid facts and 6 materials on the record, this Court is of the view that the authorities have acted illegally in granting appointment on compassionate ground to respondent No.6 in view of allegations made from the very beginning by the petitioners. The impugned order contained in memo No. 791 dated 3.9.2005 ( Annexure-10), so far it relates to respondent No.6, is accordingly, quashed and set aside. For the same reasons, the impugned order contained in memo No.898 dated 26.9.2005 issued under the signature of the Collector, Katihar is also quashed and the respondent- authorities are directed to consider the case of petitioner No.1, Naresh Rai alias Naresh Tanti, for appointment on compassionate ground in accordance with law. The writ application is, accordingly, allowed. VPS ( Ramesh Kumar Datta,J.)