IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2948 of 2008 INDRADEV YADAV, S/O NUNESHWAR YADAV, R/O VILLAGE- LAHARNIA TAND, P.S. JHA JHA, DISTRICT MUNGER. ...........PETITIONER. Versus 1.THE STATE OF BIHAR THROUGH THE SECRETARY CUM COMMISSIONER, DEPARTMENT OF RURAL DEVELOPMENT, GOVERNMENT OF BIHAR, PATNA. 2.THE DISTRICT MAGISTRATE, NAWADA. 3.THE EXECUTIVE ENGINEER, RURAL DEVELOPMENT SPECIAL DIVISION AT NAWADA(DISTT.). 4.THE ASSTT. ENGINEEER RURAL DEVELOPMENT SPECIAL DIVISION, AT NAWADA. ...........RESPONDENTS. ----------- 02/ 20.04.2011 Heard counsel for the petitioner and counsel for the State. The petitioner claiming to be the dependent of one Nuneshwar Yadav, has sought a direction from this Court for consideration of his case for appointment on compassionate ground by taking a plea that his father was traceless since, 28.11.2002. Counsel for the petitioner would submit that as nothing was heard from his father in a period of seven years, there would be in law, a presumption of his death in terms of Section 108 of the Evidence Act which would entitle the petitioner for consideration for appointment on compassionate ground. 2 The respondents on the other hand have in their counter affidavit raised certain questions with regard to the manner of the death of his father and to that extent has also cited the statement of the widow, claiming that her husband was done to death by terrorists but for the purposes of this writ application, the issue which has to be gone into as to whether the petitioner would qualify for appointment on compassionate ground in terms of the policy which was brought into force on 31.10.2008. It has to be noted that the said policy dated 31.10.2008, was notified by the Personnel and Administrative Reforms Department of the State Government pursuant to the direction contained in the order of this Court dated 17.09.2007, passed in C.W.J.C No. 13668 of 2001 and the State Government had thereafter issued its circular vide letter no. 7146 on 31.10.2008, relevant portion of which reads as follows:- ^^3- vr% ekuuh; iVuk mPp U;k;ky; ds mDr vkns'k esa fn;s x;s lq>koks rFkk Hkkjr ljdkj ds mDr dk;kZy; Kkiu esa fufgr izko/kku ds vkyksd esa] jkT; ljdkj }kjk lE;d:is.k fopkjksijkar fuEukafdr fu.kZ; fy;s x;s gS& ¼1½ ;fn dksbZ ljdkjh lsod vfookfgr gks vkSj mlds ekrk firk ,oa HkkbZ&cgu mlh ij vkfJr gksa rFkk lsokdky esa ,sls ljdkjh lsod dh e`R;q gks tk; rks oSlh ifjfLFkfr 3 esa mldh fo/kok eka] NksVk HkkbZ ,oa vfookfgr NksVh cgu dks vuqdEik ds vk/kkj ij fu;qfDr gsrq vkfJr ekuk tk,xkA ¼2½ ykirk ljdkjh lsodksa ds ekeys esa Hkh] fuEukafdr 'krksZa ds v/khu] vuqdEik ds vk/kkj ij fu;qfDr gsrq fopkj ds ykHk dh vuqekU;rk gksxh%& ¼d½ ljdkjh lsod ds ykirk gksus dh frfFk ls nks o"kksZa ds chr tkus ds ckn vuqdEik fu;qfDr gsrq vuqjks/k ij fopkj gks ldrk gS] c'krsZ fd%& ¼i½ iqfyl Fkkuk es bl laca/k esa ,d izkFkfedh ntZ fd;k x;k gks ¼ii½ ykirk O;fDr dk irk py ikuk dfBu gks] vkSj ¼iii½ l{ke izkf/kdkj ;g eglwl djsa fd ekeyk lR; gSA ¼[k½ ;g ykHk ,sls ljdkjh lsodksa ds ekeys esa vuqekU; ugha gksxk%& ¼i½ ftls ykirk gksus dh frfFk ls nks o"kksZ ds vanj lsokfuo`r gksuk gS ;k ¼ii½ ftl ij /kks[kk/kM+h djus dk lansg gks] ;k fdlh vkradoknh laxBu esa 'kkfey gksus dk lansg gks] ;k fons'k pys tkus dk lansg gksA ¼x½ vU; ds ekeyksa dh rjg ykirk ljdkjh lsods ds ekeys esa Hkh vuqdEik fu;qfDr vf/kdkj dk ekeyk ugha gksxh vkSj ;g fjfDr;ksa dh miyC/krk lfgr] ,slh fu;qfDr ds fy, fu/kkZfjr lHkh 'krksZa ds iwjk gkasus ij gh gks ldsxhA ¼?k½ ,sls vuqjks/k ij fopkj djrs le; iqfyl vuqla/kku ds ifj.kkeksa dks Hkh /;ku esa j[kk tk;sxkA ¼3½ ykirk ljdkjh lsod ds vkfJr dks vuqdEik ds vk/kkj ij fu;qDr dj fy;s tkus ds ckn ykirk ljdkjh lsod ds iqu% izdV gks tkus ij vuqdEik ds vk/kkj ij fu;qDr muds vkfJr dh lsok Lor% lekIr le>h tk;sxhA ijUrq ,sls vkfJr ls] muds }kjk dRrZO; dh vof/k ds fy, Hkqxrku dh xbZ jkf'k dh olwyh ugha dh tk;sxhA ykirk ljdkjh lsod ds izdV gksus ,oa ;ksxnku nsus ij l{ke izkf/kdkj }kjk mudk ;ksxnku Lohdkj djrs gq, mUgsa fuyafcr dj muds fo:n~/k fcgkj lsok lafgrk ds fu;e 76 ds vkyksd esa vuf/kd`r vuqifLFkfr ds fy, fu;ekuqlj foHkkxh; dk;Zokgh pykdj leqfpr dkjZokbZ dh tk;sxhA 4- bl foHkkx ds Kkikad&13293 fnukad 05-10-91 dh dafMdk&¼1½ ¼x½ ,oa ¼?k½ mi;qZDr gn rd la'kksf/kr le>h tk;sxh] vkSj Kkikad 281 fnukad 01-02-2006 ,oa i=kad 4265 fnukad 04-12-07 rn~uqlkj vodzfer le>s tk;saxsA** From the reading of the said policy of the Government and the admitted fact that 4 the father of the petitioner was missing since, 28.11.2002 and that his date of retirement was 31.03.2004, as clearly asserted in paragraph no. 3 of the counter affidavit and not controverted by the petitioner by filing any rejoinder, it will have to be held that the petitioner would not qualify for being considered for appointment on compassionate ground even on completion of period of seven years i.e. 28.11.2009 in terms of the revised policy dated 31.10.2008, inasmuch as, the said circular itself clearly prescribes that a dependent will not be entitled for appointment on compassionate ground, in case the Government Servant becomes traceless in the last two years of his service prior to the date of his retirement. The submission of learned counsel for the petitioner that the circular dated 31.10.2008 cannot be made applicable in the case of the petitioner, inasmuch as, his father had become traceless on 28.11.2002, has to be noted only for its being rejected . The presumption of death in the case of the father of the petitioner would arise only 5 after completion of a period of seven years i.e. 22.11.2009 and if the case of the petitioner has remained pending for consideration, as has been claimed by himself, the circular dated 31.10.2008 would apply with full force, in the case of the petitioner. In fact, the law in this regard has been settled by the Apex Court in the case of State Bank of India vs Raj Kumar, reported in 2010(2) BBCJ 253, wherein it has been held that if the case for appointment on compassionate ground is pending and new policy comes into force, such new policy would also govern all pending cases. Thus Judged from all possible angles, this Court would find it difficult to issue a direction as prayed for in this writ application. That being so, this application fails and is accordingly dismissed. Ranjan (Mihir Kumar Jha, J.)