IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2059 of 2006 BAGISH CHANDRA JHA, son of Sri Shiva Chandra Jha, resident of Dumari Kalan, P.S. Majorganj, District Sitamarhi … Petitioner Versus 1. THE STATE OF BIHAR 2. The Secretary, Personnel and Administrative Reforms Department, Bihar, Patna 3. The Secretary, Primary Education, Bihar, Patna 4. The District Magistrate, Sitamarhi 5. The District Superintendent of Education, Sitamarhi … Respondents ----------- 5. 5.4.2011 Heard counsel for the petitioner and the counsel for the State. The prayer of the petitioner in this writ application is to quash the resolution passed by the District Compassionate Appointment Committee in the meeting held on 27.12.2005 rejecting the case of the petitioner for his appointment on compassionate ground on the plea that as per Government policy dated 5.10.1991 he would not qualify for such appointment, inasmuch as the father of the petitioner was a retired Government servant and therefore, the death of mother of the petitioner, also the Government servant, would not by itself make him eligible in view of bar imposed in the policy. 2 Counsel for the petitioner would submit that the father of the petitioner was definitely in Government service but he had retired on 31.10.1996 and therefore, when the mother of the petitioner while continuing in service had died on 30.9.2003, it cannot be said that the petitioner’s claim for compassionate appointment would not be maintainable, inasmuch as the Government circular does not prohibit appointment on compassionate ground of such a dependent whose either parent were not continued in Government service on the date when such a cause of action for compassionate appointment had arisen. In this context he would also refer to a Division Bench judgment of this Court in the case of Jyoti Kumari vs. The State of Bihar & ors., reported in 2005(4) PLJR 507. Counsel for the State has only submitted that the decision of compassionate Appointment Committee was based on its own reading of the Government circular, wherein there is an ineligibility clause providing that if either of the spouse being 3 government servant were still alive the dependent of such a spouse will be eligible for compassionate appointment. In the considered opinion of this Court the view taken by the District Compassionate Appointment Committee cannot be sustained in view of the policy laid down by the State Government, wherein it has been only provided that: ^^¼M½ ;fn ifr& iRuh nksuksa ljdkjh lsok esa gks vkSj fdlh ,d dh e`R;q gksz tk; rks oSlh fLFkfr esa vuqdEik ds vk/kkj ij fu;qfDr dk ykHk muds ifjokj ds fdlh vkfJr dks ugha feysxk A** The said provision of the Government circular dated 5.10.1991 would leave nothing for speculation that in order to deny consideration of the case of compassionate appointment of a dependent, a finding has to be recorded that at least the other spouse is still continuing in Government service. Since the father of the petitioner had already retired on 31.10.1996, it cannot be said that he had continued in service in terms of the Government circular dated 5.10.1991 on the date of death of the mother of the petitioners i.e. 30.9.2003 giving a cause of 4 action to the petitioner for his appointment on compassionate ground. It is this aspect of the matter which has been decided by this Court earlier in the case of Dilip Kumar Das vs. The State of Bihar & ors., reported in 2000(2) PLJR 203, and again in the Division Bench of this Court in the case of Jyoti Kumari (supra), wherein the Division Bench while approving the law laid down in the case of Dilip Kumar Das (supra) has held as follows: “6. According to the said provision, when both husband and wife are in Government employment and one dies while other remains in employment, then no benefit of compassionate appointment can be given to any of the dependents of the deceased employee. Thus, the condition precedent for non- applicability of the aforesaid provision is that at the time of death of one spouse, the other spouse is in employment. If the other spouse has already retired then the said clause, on the face of it, appears to be non- applicable.” Since the solitary reason for rejection of the case of the petitioner was 5 the alleged retirement of the father of the petitioner, this Court will have no hesitation in allowing this writ petition by quashing the impugned resolution No.3 dated 27.12.2005 and remitting the matter back to the District Compassionate Appointment Committee, Sitamarhi to re-examine the case of the petitioner strictly in accordance with the Government policy which was in existence on the date of death of mother of the petitioner i.e. 20.11.2002. The District Compassionate Appointment Committee headed by the Collector of Sitamarhi District must take its decision in the case of the petitioner within a period of three months from the date of receipt/ production of a copy of this order and if a recommendation is made by the Committee, the competent appointing authority shall also do the needful taking into consideration that there is no delay on the part of the petitioner in seeking compassionate appointment and that the petitioner’s case for compassionate appointment was wrongly rejected on 6 incorrect interpretation of the Government policy dated 05.10.1991. With the aforementioned observation and direction, this application stands allowed. (Mihir Kumar Jha,J.) Surendra/