IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1458 of 2006 Munni Roy, S/o late Brahmdeo Roy, R/o village – Paithani Nathupur, P.S.-Phulwari Sharif, District-Patna …………………… Petitioner Versus 1. The State of Bihar 2. District Magistrate-cum-Chairman, District Compassionate Committee, Patna 3. Superintending Engineer, South Bihar Circle, Building Construction Department, Patna 4. The Executive Engineer, Building Construction, Housing Department, Gardanibagh Building Division, Patna 5. Kapil Rai, S/o Late Brahmdeo Roy, R/o village – Paithani Nathupur, P.S. Phulwari Sharif, District-Patna …………………….. Respondents ----------- For the petitioner: M/S B.J.Ojha & R.K.Yadav, Advocates For the State: Mr. S.B.N.Singh, AC to GA IX For Resp. No. 5 :- M/S Sunil Kumar Verma & Suman Kumar Verma, Advocates. ----------- 4. 19.02.2009 Heard learned counsel for the petitioner, learned counsel for Respondent No. 5 and learned counsel for the State. The petitioner seeks quashing of the decision dated 31.12.2005 appearing at Sl. No. 30 of the proceedings of the District Compassionate Committee, Patna (Annexure-11) and for a further direction upon the respondents to appoint the petitioner on class III post on compassionate ground. The father of the petitioner, Brahmdeo Roy, while working as Mason in the Building Construction Department, Government of Bihar, died on 7.2.2001. The petitioner filed his application for compassionate appointment on 2.2.2002. The respondent no.5, who is the elder son of the deceased employee, also filed his application for compassionate appointment. The application of the petitioner was rejected on the ground that since the father of the - 2 - petitioner was earlier appointed in the Work Charge Establishment and subsequently absorbed as a permanent employee of the Government, therefore, in terms of the Government circular dated 12.12.2002 he is not entitled to appointment on compassionate ground. The petitioner challenged the said rejection of his application for compassionate appointment by filing CWJC No. 9513/2003 which was heard along with a batch of other cases and by order dated 20.10.2005 this Court allowed the said writ petition after quashing the impugned order and remitted the matter back to the authorities concerned to consider the question afresh in the light of the decision rendered by this Court in an earlier case. The respondent no. 5, Kapil Rai had filed I.A. No. 5401 of 2003 in the said writ petition filed earlier by the petitioner and this Court was accordingly pleased to observe that since now the matter has been remitted back to the authorities for reconsideration, the intervenor shall approach the concerned authorities and the authorities shall adjudicate his claim also in accordance with law. Thereafter, the matter was reconsidered in the meeting of the District Compassionate Committee on 31.12.2005 and after considering the application filed by Respondent No. 5 that the petitioner is a criminally minded person and Phulwarisharif P.S. Case No. 345/2001 was filed against him which was pending as also another complaint Case No. 2126(C )/2002 was also pending in which the petitioner has also gone to jail and upon the said matter being enquired by the Sub-Divisional Officer, Patna Sadar, according to his enquiry report dated 26.11.2005, it was found that the - 3 - criminal cases were still pending in the Court against him, which fact has also been accepted on affidavit by the petitioner. Upon the said facts, relying upon the provisions of the Circular letter No. 13293 dated 5.10.1991 of the Personnel and Administrative Reforms Department, Government of Bihar, the claim of the petitioner was rejected. Learned counsel for the petitioner submits that the respondent-authorities have misread the aforesaid circular dated 5.10.1991. It is submitted that compassionate appointment can be refused only after a person has been convicted and sentenced to imprisonment for commission of a cognizable offence for a period of six months or if any criminal case is pending against him in which he can be awarded either death sentence or imprisonment for more than 7 years or after the conclusion of the said criminal case he has been awarded the punishment of six months or more. It is further submitted by learned counsel that both the complaint case and the police case had been lodged at the instance of his brother, Kapil Rai and his wife with the sole aim of depriving the petitioner from getting the compassionate appointment. It is however, pointed out by learned counsel that the complaint case was under Sections 147,341, 323 and 380 IPC and ultimately he has been acquitted in the said case by judgment dated 10.12.2007. With respect to the police case, it is submitted that in the said case also charge sheet was submitted under Sections 323 and 342/34 of the IPC and no charge sheet was submitted under Section 354 IPC and in the said case - 4 - by judgment dated 9.9.2008 the petitioner has been convicted under Section 323/34 IPC but released under the Probation of Offenders Act. It is thus, submitted that none of the conditions laid down in Para-2 of the circular dated 5.10.1991 would come in the way of the petitioner being denied the compassionate appointment and thus the District Compassionate Committee has wrongly decided the matter in not recommending the petitioner for compassionate appointment. Learned counsel also submits that the Respondent No. 5, on the basis of his own admission in counter affidavit by Annexure- 3, the school transfer certificate issued by the Headmaster of the School, is only Class VII pass and thus not entitled for appointment even on Class IV post in the Government since the minimum eligibility for appointment on Class IV post is Class 8th pass. Learned counsel for the petitioner also submits that although the forged affidavit dated 15.9.2001 on behalf of his mother was submitted by Respondent No. 5 before the authorities but the same was immediately on knowledge of the same denied by the petitioner’s mother and in her affidavit dated 11.1.2002 she had clearly stated that Respondent No. 5 was living separately even during the life time of her husband and she had no connection with him and expressed her support for granting compassionate appointment in favour of the petitioner. It is further pointed out that in view of the conflicting facts submitted the authorities had directed the petitioner’s late mother to appear before them and she appeared on 30.7.2002 and gave her statement before the authorities concerned in which she has stated that the petitioner - 5 - should be given compassionate appointment. For the aforesaid reasons, it is submitted by learned counsel that the Respondent No. 5 not being eligible for compassionate appointment and the widow of the deceased employee, their mother, also having given an affidavit in favour of the petitioner, who is the younger son, there is no occasion for Respondent No. 5 to be even considered for compassionate appointment. Learned counsel also relies in this regard upon the report dated 14.9.2005 (Annexure-9) submitted by the Block Welfare Officer, Phulwarisharif in which he has enquired from the local people and reported that the Respondent No. 5 was living separately during the life time of the deceased government employee and he has further found that in the Ration Card issued in the year 1996 to the deceased employee the name of Respondent No. 5 and his family members, do not appear which confirms the statement made by the local people that Respondent No. 5 was not living with his father and mother prior to his death. Learned counsel for the Respondent No. 5, on the other hand, submits that there being affidavit in favour of Respondent No.5 by his mother, the widow of the deceased, he was entitled to be considered for compassionate appointment and he being the elder son has first claim for the same. It is further submitted by learned counsel that the petitioner is not entitled to appointment on compassionate ground because of the criminal cases against him and his case has rightly been rejected. - 6 - It is lastly contended by learned counsel for Respondent No. 5 that in any case, if the petitioner is given compassionate appointment then the Respondent No. 5 and his family members also being dependents of the deceased Government servant, should be given a proportionate share from the salary to be given to the petitioner. Having considered the rival submissions, this Court is of the view that the case of the petitioner has not been considered by the District Compassionate Committee in its meeting dated 31.12.2005 in the proper light. It is evident from the circular dated 5.10.1991 that a person is debarred from consideration for compassionate appointment only if he has been actually convicted of a cognizable offence and sentenced to a minimum of six months imprisonment. So far as the other condition is concerned, pendency of a criminal proceeding can only be a ground for rejection if there is a possibility of the applicant being awarded either death sentence or a sentence of imprisonment exceeding seven years or if after the disposal of the said case an actual sentence of six months or above has been awarded. On the date of consideration by the District Compassionate Committee both the criminal proceedings were pending and the sections under which they were proceeding would not have led to any possibility of the petitioner being awarded either a death sentence or a sentence exceeding seven years. The highest sentence that could have been awarded in the two cases was under Section 380 IPC where the maximum imprisonment could be up to - 7 - seven years. For the other offences the sentence that could be awarded was much less. Therefore, even if the maximum sentence could have been awarded, which was not likely, the case of the petitioner could not have come within the purview of para-2 (Ga) of the circular dated 5.10.1991. In any case, after the final disposal of the matters on a subsequent date no sentence has been awarded even in the police case in which the petitioner has been convicted under Section 323/34 IPC. Thus, the authorities have gravely erred in rejecting the case of the petitioner on a ground which was not applicable for consideration of his case. The other aspect of the matter is that both the criminal cases had been filed by the brother of the petitioner which was not only for getting compassionate appointment for himself but also to somehow debar the petitioner from getting compassionate appointment. So far as reliance by learned counsel for Respondent No. 5 on the order dated 20.10.2005 of this Court in the earlier case filed by the petitioner regarding the claim of Respondent No.5 is concerned, it was clearly stated in the said order that the intervenor shall approach the concerned authorities and the authorities shall adjudicate his case in accordance with law. In the impugned proceedings of the District Compassionate Committee the only application referred to with respect to Respondent No. 5 is one in which he has made allegations against the petitioner that he is a person of criminal mindset. In any case since the Respondent No. 5 does not possess the minimum eligibility of Class VIII pass, being admittedly - 8 - Class-VII pass, there can be no question of consideration of his case by the District Compassionate Committee as it is clearly provided in the Circular dated 5.10.1991 that in such cases the application should be rejected at the outset. As regards the claim of Respondent No.5 to any share if compassionate appointment is granted to the petitioner, the same is without any basis as it is evident from the materials on the record that he was living separately from his deceased father during his life time which is evident not only from the affidavit of his mother but also in the local enquiry made by the Block Welfare Officer and particularly from the Ration Card of 1996 in which his name does not appear among the dependents of the Ration Card holder, the now deceased father. Thus, in view of the aforesaid discussions, the writ application is allowed. The decision dated 31.12.2005 of the District Compassionate Committee, Patna is quashed so far as it relates to the petitioner and the matter is remitted to the authorities to reconsider the case of the petitioner, Munni Roy in accordance with law and in the light of what has been discussed above and dispose of the matter within two months from the date of receipt/production of a copy of this order. S.Pandey (Ramesh Kumar Datta, J.)