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2008 DIGILAW 932 (JHR)

Kauleshwar Prajapati v. State of Jharkhand

2008-08-13

D.G.R.PATNAIK

body2008
Order Prayer in this writ petition has been made for an appropriate writ in the nature of Mandamus commanding upon the respondents to consider the petitioner's case for appointment on compassionate ground and to pay his share in retiral dues and in the arrears of salary which was legally payable to his deceased father within a specified period. 2. The petitioner's case is that his father was a permanent Class-IV employee in the Soil Conservation Department under the respondents and was posted at Hazaribagh. The petitioner's father was put under suspension on 18.9.1996. He challenged the said order of suspension in this court by filing a writ petition being W.P.(S) No. 3057 of 2002 which was disposed of by order dated 5.9.2002 and order of suspension of petitioners father was revoked, and respondents were directed to pay the arrears of subscription allowance to the petitioners father after adjusting the maintenance allowance. It was further directed to pay the maintenance amount to his wife. 3. It is further contended that though the order of suspension of petitioner's father was revoked, but arrears of salary was not paid for the period of suspension and in the meantime on 10.9.2007 the petitioner's father died leaving behind his two widows namely Parwa Devi and Sumitra Devi. Parwa Devi is the first widow having a son namely Ganesh Prajapati, while second widow Sumitra Devi has five children, out of whom petitioner is one of the sons. 4. It is contended that under the Hindu Succession Act, 1956 the first widow and her son have share in the movable and immovable properties left by the deceased father and likewise the five children, including the petitioner, of the second wife are also entitled to equal share in the properties of the deceased. It is further contended that son of the first wife did not claim any appointment on compassionate ground and the petitioner only has made application in the prescribed form for his appointment on compassionate ground. Since no other application has been filed by any of the heirs and successor of the deceased, the respondents have to consider the petitioner's representation for his compassionate appointment. The petitioner has claimed the benefit of compassionate appointment under the scheme adopted earlier by the Government of Bihar and now by the State of Jharkhand for grant of appointment to the heirs of deceased employee on compassionate ground. 5. The petitioner has claimed the benefit of compassionate appointment under the scheme adopted earlier by the Government of Bihar and now by the State of Jharkhand for grant of appointment to the heirs of deceased employee on compassionate ground. 5. It is further contended that the petitioner filed representation before the respondents making two prayers, the first being for payment of arrears of salary and the retiral dues of the deceased employee to the petitioner to the extent of his own share and the second being to consider his case for grant of compassionate appointment. The respondents in reply to tile representation demanded that the petitioner should produce a "No Objection Certificate" from the first wife. 6. Counsel for the petitioner submits that the said demand of the respondents is illegal in view of the fact that the petitioner has only claimed of his own share in the properties both movable and immovable of the deceased father to which he is entitled under the law. Furthermore, since no other legal heirs of the deceased has filed the claim for compassionate appointment within the period of limitation stipulated, the petitioner's application being the only application for the same, if ought to have been considered and this has not been done by the respondents on the basis of an illegal demand of "No Objection certificate". 7. J.C. to S.C. (Mines) submits that the present writ application has been filed essentially for the purpose of declaring a succession certificate to the petitioner. It is explained that admittedly the deceased employee had two wives and had issues from both the wives and the children born to them are alive and under such circumstances the petitioner ought to have filed a succession certificate for receiving the monetary dues, which were payable to the deceased employee. As regards claim for compassionate appointment, the demand of the respondents for producing no objection certificate from the first wife and other heirs and successor of the deceased employee is a genuine demand in view of the fact that a similar demand for compassionate appointment and payment of dues may be made by them in future. 8. From the facts and circumstances, as explained, the demand by the respondents that the petitioner should submit a "No Objection Certificate" in respect of both the claims made by the petitioner does not appear to be unjustified and unreasonable. 8. From the facts and circumstances, as explained, the demand by the respondents that the petitioner should submit a "No Objection Certificate" in respect of both the claims made by the petitioner does not appear to be unjustified and unreasonable. However, if on the basis of their own policy, the respondents are satisfied in respect of the eligibility and claim of the petitioner for his compassionate appointment under the terms of the scheme followed by the Government in this regard, the respondents shall consider the same and communicate their decision on the representation of the petitioner to this effect. As regards payment of retiral dues, if a nominee has been named by the deceased employee in his service records, then the respondents shall pay the retiral dues to such nominee who shall receive the same in trust in respect of the shares of all the other legal heirs and successors of the deceased employee. 9. The respondents shall dispose the representation of the petitioner in the light of the above observations within two months from the date of submission of a representation by the petitioner alongwith a copy of this order. 10. With the above observations, this writ petition is disposed of.