IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12276 of 2005 ====================================================== Md.Basir, s/o- Late Md. Kalimuddin, Resident of c/o- Salauddin Khan, Naya Tola Naharpar, Phulwarisharif P.S.- Phulwarisharif, District- Gaya. .... .... Petitioner/s Versus 1. The State Of Bihar. 2. The Chief Secretary, Government of Bihar, Patna. 3. The General Manager-cum Chief Engineer, Bihar State Electricity Board, Patna. 4. The Secretary, Bihar State Electricity Board, Patna. 5. The Joint Secretary of General Administrative Department, Bihar State Electricity Board, Patna. 6. The Dy. Director General, Administrative Department, Bihar State Electricity Board, Patna. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Sajal Kumar Sinha For the B.S.E.B. : Mr. Vinay Kirti Singh For the State : Mr. Rajesh Kumar Verma, S.C. 27 Mr. Parmeshwar Vishwakarma, A.C. to S.C. 27. ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER (Per: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL) 4 25-10-2011 Heard learned counsel for the petitioner and learned counsel for the respondent Bihar State Electricity Board (for short “ the Board”). The respondent Board has filed a counter affidavit. Petitioner has filed rejoinder thereto. Petitioner seeks a direction upon the officials of the respondent Board to consider and dispose of the application Patna High Court CWJC No.12276 of 2005 (4) dt.25-10-2011 2 pending with them for his appointment on compassionate ground. Petitioner has asserted in the writ petition that his father Late Md. Kalimuddin was serving as Chowkidar of the Guest House of the Board located in Patna in the Electricity Board Colony. While serving as such, he died in harness on 21.9.2002. Petitioner, claiming himself to be the son of the deceased employee, made an application on 31.12.2002 and 30.1.2003. The said matter remained pending since another lady namely Madina Khatoon also led a claim for payment of post retiral benefits payable to the deceased employee claiming herself wife/widow of the deceased employee. The Board, faced with the aforesaid situation, considered it apposite to direct both the claimants of post retiral benefits to obtain appropriate declaration/certificate from a competent Court having jurisdiction over the matter. The writ petitioner thereafter filed a proceeding in respect of entitlement to receive post retiral dues payable to the deceased employee. By an order dated 18.10.2006 passed in Succession Case No. 26 of 2005, the Additional District and Sessions Judge-I, Patna issued the succession certificate in favour of the petitioner and his sisters. Armed with the aforesaid document, the petitioner approached the authority for payment of retiral dues. It is also relevant to state that aforesaid Madina Khatoon also filed a succession proceeding Patna High Court CWJC No.12276 of 2005 (4) dt.25-10-2011 3 before the Competent Court vide Succession case No. 78 of 2004 (Most. Madina Khatoon and Another versus The Estate of Md. Kalimuddin). The said proceeding was contested by the petitioner. On a consideration of the matter, the Court (the Additional District and Sessions Judge-VII, Patna) by a proceeding dated 9.4.2010)(Annexure-I to the counter affidavit) dismissed the said proceeding, the relevant portion of the judgment reads as follows: “ …….She herself stated in her evidence that there is no any paper to prove that she was married with Kalimuddin and late Kalimuddin has never entered her name in his service record as wife and no property was purchased or any joint bank account was opened in her name. It is apparent that no chit of paper has been adduced by the applicant in prove of her marriage with late Md. Kalimuddin. It is also appeared that the Opposite Party had filed Succession Certificate Case No. 26/05 which has already been allowed by the court of learned A.D.J.- I, Patna by order dt. 30.6.06 in favour of the O.Ps though the applicant had filed a petition with Vakalatnama in that case but till the disposal of that succession case she did not filed any objection. It is apparent that a competent court has already issued a succession certificate in favour of O.Ps and on the other hand, in the present case the applicant has not proved his marriage with late Md. Kalimuddin as third wife and her entitlement in the estate of late kalumuddin. In my opinion , there is no merit in the petition of applicant filed U/S 192 of Indian Succession Act, ,1925. In the result, the Succession Certificate Case No. 78/04 filed by the applicant Madina Khatoon is hereby dismissed.” (Emphasis supplied) It is admitted position that thereafter the Board disbursed the post retiral dues in favour of the petitioner and three sisters in Patna High Court CWJC No.12276 of 2005 (4) dt.25-10-2011 4 proportionate manner(Annexures- 3 and 3A to reply affidavit). It is the case of the petitioner that although part of the post retiral dues payable to the deceased employee have been made to the petitioner but his claim for appointment on compassionate ground till date has not been considered and disposed of by the respondent Board. In the counter affidavit, the respondents have asserted as under in paragraph 11: “11. That in view of the above facts and circumstances no dependent has submitted an application for appointment on compassionate ground in prescribed performa along with supporting documents. However, appointment on compassionate ground cannot be considered till the final settlement of family dispute and mutual undertaking between the dependent of deceased employee.” Learned counsel for the petitioner, relying on averments made in paragraph 5 and Annexure-II of the reply affidavit contended that the application seeking appointment on compassionate ground was filed in appropriate format within time. It is, thus, submitted that the respondent(s) be directed to consider his case for appointment on compassionate ground and pass appropriate orders thereon. Learned counsel for the Board submits that since there is a dispute between the two claimants, they could not consider the Patna High Court CWJC No.12276 of 2005 (4) dt.25-10-2011 5 claim of the petitioner for grant of appointment on compassionate ground. It is next contended that if the petitioner has survived for so many years then he may not be entitled to grant of appointment on compassionate ground since the aforesaid provision has been incorporated to meet the emergent situations created by sudden death of the bread earner. Learned counsel for the petitioner, on the other hand, submits that the petitioner was paid only Rs. 30,000/-. Rest amount was paid to the sisters of the petitioner. The matter remained pending on account of laches on the part of the Board in not taking up and considering his claim in accordance with law. Aforesaid Madina Khatoon has not filed any application or claim for her appointment on compassionate grounds. The authorities are, therefore, required to consider his claim in accordance with the relevant circular of the Board and pass appropriate orders. Having heard the parties and on going through the pleadings on record, this Court finds that from the averments made in the counter affidavit it does not appear that aforesaid Madina Khatoon led any claim for appointment on compassionate ground. She had objected to payment of post retiral dues to the petitioner and his three sisters. The Board, on a consideration of the matter, directed the claimants to obtain succession certificate in their Patna High Court CWJC No.12276 of 2005 (4) dt.25-10-2011 6 favour in respect of post retiral dues payable to the family members of the deceased employee. It appears that the petitioner as well as aforesaid Madina Khatoon filed two proceedings. The proceeding filed by the petitioner was allowed whereas the proceeding filed by the aforesaid Madina Khatoon was dismissed on contest. Petitioner, armed with the aforesaid succession certificate, approached the Board whereafter the authorities of the Board disbursed the post retiral dues to the heirs of the deceased employee as per the succession certificate obtained by them. There is also no controversy that the petitioner was paid only a sum of Rs. 30,000/- on account of payment of post retiral dues. It has not been stated in the counter affidavit that petitioner has adequate property and/or income to sustain himself in life. This Court, without delving into that aspect of the matter, deems it necessary, in the interest of justice, to direct the authorities of the respondent Board to consider the pending claim of the petitioner for appointment on compassionate ground in accordance with law preferably within three months from the date of receipt/production of a copy of this order. The application stands disposed of. PANKAJ KUMAR/- (Kishore K. Mandal, J)