IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11708 of 2005 1. Shakuntla Devi, Wife of late Murli Manohar Singh. 2. Amritesh Kumar Singh, son oflate Murli Manohar Singh, both residents of village and P.O. Chaap, P.S. Akodhila, district Rohtas, presently residing in the house of Sri Narendra Chaurasia, Mohalla Postal Park, Indira Nagar, Road No.2, P.S. Kankarbagh, P.O. Postal Park, Patna. ----- Petitioners Versus 1. Bihar State Co-Operative Marketing Union, West of Gandhi Maidan, Patna through its Managing Director. 2. The Chairman, Bihar State Co-operative Marketing Union, Biscomaun Bhawan, Patna. 3. The Secretary, Bihar State Co-operative Marketing Union, Biscomaun Bhawan, Patna. 4. The Finance Controller, Bihar State Co-operative Marketing Union, Biscomaun Bhawan, Patna. 5. The Accounts Officer, (Establishment), Bihar State Co-operative Marketing Union, Biscomaun Bhawan, Patna. ---------- Respondents ----------- 4 28.03.2011 Heard learned counsel for the petitioners and counsel for the State. The prayer of the petitioner for appointment on compassionate ground in Bihar State Co-operative Marketing Union (Biscomaun) has been sought to be canvassed by the learned counsel for the petitioners on the ground that Biscomaun was a viable body at the point of time when the father of the petitioner had died on 14.12.2004 and, as such, he cannot be refused appointment on compassionate ground either on account of Biscomaun becoming defunct due to crunch of resources. 2 In this case, a counter affidavit has been filed wherein apart from the preliminary objection of maintainability of the writ application it has been specifically asserted that right from the year 1988 when Biscomaun being a Cooperative Society was superseded the volume of business of Biscomaun had made a sharp decline so much so that it was not even able to meet its liabilities towards the existing working employees. To that extent, paragraph nos. 6 to 10 of the counter affidavit, being relevant, are quoted hereinbelow:- “6. That it is pertinent to bring to the notice of this Hon’ble Court that the Managing Committee of Biscomaun was superceded in the year 1988 itself and an Administrator was appointed to manage the affairs of the society i.e. Biscomaun. Due to various reasons business of Biscomaun has been declined and due to decline in the business income of Biscomaun has also been declined sharply Biscomaun’s financial condition became so critical that it is not being able to meet its liabilities towards its employees to pay their regular salary and retiral/death- cum-retirement benefits in time. 3 Besides this, Biscomaun was not being able to repay the loans taken from different financial instructions. No financial institution was forward to grant loans. For rehabilitation of Biscomaun, rehabilitation scheme is pending before the State Government since long, several meetings have been held t the highest level but nothing fruitful has been done so far. The source of income was confined to the rent received from its building and godown which was not sufficient to meet even essential and unavoidable expenses. To keep Biscomaun alive, some of its employees have been taken into category of essential service and they are being paid ad hoc salary. 7. That on 29th of May 2003 the Managing Committee from elected representatives have been constituting Biscomaun and the newly constituted Managing Committee has taken sincere effort to resurrect Biscomaun in its original form. Biscomaun has decided to restart its business and in fact some of its business has been started also which were t grading fault. To activate its business and to generate fund some of the assets of Biscomaun which were idle has been given on base on 4 short term or long term. Some of godowns have been given on rent. Under such a financial condition retiral dues/death-cum-retirement benefits are being paid as per availability of fund in chronological order barring few cases in which contempt proceedings were initiated and to purse contempt payment were made out of turn. 8. That the Board of Directors of Biscomaun in its meeting dated 20.8.2005 in agenda No.8 took a decision in the case of one Pankaj Kumar Singh not to appoint him and other similarly situated persons on compassionate ground as Biscomaun is not being able to make payment of salaries to its employees due to paucity of fund, excess work force than the sanctioned strength and meager source of income etc. It is submitted that the decision taken in the case of said Pankaj Kumar Singh is applicable in all similarly situated candidates. 9. That it is submitted since last 18 years no appointment on compassionate has been made in Biscomaun More than 100 application for compassionate appointment were/have been filed prior to the petitioner’s application but none has been appointed due to the reasons indicated in the Board’s decision aforesaid.” 5 Despite service of notice of such counter affidavit on the counsel for the petitioner on 20.2.2007, there is no rejoinder affidavit to the specific plea of financial crunch and lack of resources. An employer, who has no capacity to employee persons, cannot be compelled to make appointment on compassionate ground. Here in this case, Biscomaun from the year 1988 has ceased to remain operational and viable. In such a situation, when the respondents have also taken a specific plea that no person has been appointed in BISCOMAUN on compassionate ground in the last two decades and that more than 100 more claimants are still hovering around for claiming appointment on compassionate ground, this Court would find it difficult to direct the respondents to make appointment of the petitioners on compassionate ground in isolation. That being so, this application is wholly misconceived is, accordingly, dismissed. Rsh (Mihir Kumar Jha, J.)