IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10511 of 2005 SONAPATI DEVI & ANR Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner :- Mr. Dhananjay Kumar, Adv. For the Bihar School Examination Board :- Mr.Giujesh Kumar, Adv For the Respondent NO. 5 :- Mr. Manoj Kumar, Adv. ------------- 6. 27.8.2008 Heard learned counsel for the petitioner and learned counsel for the Bihar School Examination Board. The two petitioners, who are mother and son and respectively the widow and the third and youngest son of the deceased employee of the Board, have approached this Court for issuing direction to the respondents to appoint on compassionate ground petitioner no. 2, Amit Kumar in place of second son, Ajay Kumar since petitioner no. 2 is I.Sc. and has also done computer course from a recognized institution. The relevant facts of the case are that Late Chandrika Prasad died in harness on 27.2.2000 while he was employed in the Bihar School Examination Board leaving behind his widow, petitioner no. 1 and three sons namely, Manoj Kumar, Ajay Kumar and petitioner no. 2, Amit Kumar. The second son, Ajay Kumar, had earlier approached this Court by filing C.W.J.C. No. 8072 of 2001 with a prayer that the Board may be directed to grant him compassionate appointment. However, the Board in its counter affidavit took the stand that the eldest son has also applied for compassionate appointment and in the said circumstances, it was difficult for them to consider the case of such appointment of either of the sons. The writ application was - 2 - accordingly disposed of by this Court by order dated 27.8.2001 with the direction that if the said Ajay Kumar files an application in prescribed performa, with affidavit of Mahesh Kumar that appointment be provided to the petitioner on compassionate ground, the respondent Board shall consider the case of the petitioner for appointment on compassionate ground and shall dispose it of without any delay. Subsequently, it appears from the record that the Board informed the said Ajay Kumar regarding its policy decision contained in Memo No. 1231 dated 24.5.2003 in terms of which only the widow or the eldest son of the deceased employee could be appointed on compassionate ground and only if it was found that the eldest son was mentally unfit then the case of the second son can be considered. It is also the stand of the petitioners that they had been informed by the Board by letter dated 19.6.2004 that apart from other requirements the certificate regarding knowledge of computer has also to be enclosed. Considering the said circumstances since the second son did not have a certificate of computer training, the petitioner no. 1 wrote to the Board on 16.7.2004 that her youngest son, Amit Kumar, has passed I.Sc. examination and computer course and he may be considered for the said post; regarding the factum of the eldest son, the same should not be applied to the case of the petitioners since he separated from the family members during the lifetime of his father and has no concern or care for the family members and hence, in this case the eldest son is not in a position to maintain and look after the - 3 - dependents of the deceased and therefore the opportunity should be provided to the member of the family who is looking after and maintaining all the dependents of the deceased. The further stand of the petitioner is that subsequently the said eldest son, Mukesh Kumar, has been murdered on 8.1.2005 with respect to which death certificate has also been annexed and it is further stated that Kotwali P.S. Case No. 8 of 2005 under Sections 302 and 201 I.P.C. has been lodged, which fact has also been communicated to the respondent Board. In the counter affidavit the stand taken by the respondent Board is that firstly in terms of the policy decision of the Board, the employment can only be given to the widow or the eldest son, whereas earlier it was for the second son and now for the third son that the claim is being made. It is further stated that the matter relating to the compassionate appointment on the death of Late Chandrika Prasad was considered by a three member committee of Deputy Secretaries of the Board and they have submitted their report on 18.6.2005 in which the case of both the sons for compassionate appointment on the request made by the widow in her letter dated 17.3.2004 has been considered and the recommendation has been made against the said claim for appointment on compassionate ground. It is also the stand in the supplementary counter affidavit that although claim is made in the writ application for appointment of the third son yet the second son still pursues the claim for compassionate appointment in the Court. So far as the stand of the Board regarding second son still - 4 - making claim for appointment is concerned, it is pointed out by learned counsel for the petitioner that the second son Ajay Kumar who is respondent no. 5 in the present application has filed an affidavit in the present case in which he has clearly stated that he has no objection in case of appointment of his brother, petitioner no. 2 on compassionate ground. That being the position, it clearly meets the objection raised by the Board that even now two of the brothers are claiming for compassionate appointment. So far as relevance of the report dated 18.6.2005 of the three members committee of Deputy Secretaries is concerned, the same appears to be based on conjecture that the eldest son who is stated to be living separately may be employed elsewhere and the other ground taken is that because of the passage of long time, there is no need for compassionate appointment. The first ground being merely based on conjecture, hence it has no legs to stand upon. So far as the question of passage of time is concerned, it is evident that the employee had died on 27.2.2000 and even in the normal course, the claim for compassionate appointment can be made within five years and since the same had not only been made expeditiously but even before the expiry of the five years period, the eldest son had already died on 6.1.2005, hence it cannot be said that the claim was belated on the date the said report has been submitted on 18.6.2005. Further, the reliance by the Board upon the so called policy decision, which appears to have been communicated to the respondent no. 5, second son, by letter dated 24.5.2003, this Court can only - 5 - comment that compassionate appointment is not a matter of succession that it can be granted to one son in preference over the other. It has been repeatedly stated in a catena of decisions of this Court and the Hon’ble Supreme Court that compassionate appointment is granted to the family of the deceased employee to tide over the immediate financial crisis that takes place on the death of the sole bread earner of the family; hence the benefit of compassionate appointment is not meant for the eldest son of the deceased rather it is meant for the entire family who were dependent upon the deceased employee. In the said circumstances, it is against the spirit and the very purpose of compassionate appointment to restrict it only to the eldest son so as to defeat the claim of the family in this regard. In the present matter even the said policy decision cannot stand in the way of appointment on compassionate ground on account of the fact that within a period of five years of the death of deceased employee, the eldest son is also dead and hence the claim of family to a compassionate appointment even as per the said policy decision cannot be denied. Lastly, this Court pointedly asked learned counsel for the respondent- Board as to whether there is any necessity of computer knowledge in all cases of appointment of class- III employee in the Board and the reply was in the negative; if there is no such requirement of computer literacy in the case of all class- III appointments, then this Court fails to appreciate how the same can be insisted upon by the Board in the case of appointment being made on - 6 - compassionate ground. For the aforesaid reasons, this Court does not consider the stand taken by the Board reasonable in the facts and circumstances of the case, rather the same appears to be taken merely to deny the benefit which the dependents of the deceased employee are entitled to in terms of the scheme for compassionate appointment. The writ application is, accordingly, allowed and the authorities of the Board are directed to take a decision on the question of compassionate appointment with respect to petitioner no. 2 as now being sought by the family members of the deceased employee within a period of three months from the date of receipt/production of a copy of this order. P. Kumar (Ramesh Kumar Datta, J.)