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2013 DIGILAW 144 (PAT)

Most. Indu Devi v. State of Bihar

2013-01-31

S.N.HUSSAIN

body2013
ORDER Heard learned counsel for the petitioners and learned counsel for the respondents. 2. This writ petition has been filed by the petitioners for directing the respondents concerned to consider the case of petitioner no.2 for his appointment to a class III post on compassionate ground in Road Construction Department, Govt. of Bihar. 3. The claim of the petitioners is that petitioner no.1 is the mother of petitioner no.2 and the husband of petitioner no.1 and father of petitioner no.2, namely Late Ashok Kumar Mihsra, was employed as Chowkidar in work charge establishment in Sub-division no.16, Ganga Bridge Project at Hajipur and his services were regularized much later on 25.05.1996. 4. Learned counsel for the petitioners submits that in the meantime Ashok Kumar Mishra died in harness on 16.10.1989 while his son petitioner no.2 was a minor child and hence within the prescribed time of five years petitioner no.1 applied on 26.08.1993 for her appointment on compassionate ground and the same was forwarded, but it remained pending before the authority concerned and according to the counter affidavit filed by the respondents it was not considered. 5. Learned counsel for the petitioners avers that when petitioner no.2 attained majority he filed his application for appointment on compassionate ground on 24.08.1997 with the consent of petitioner no.1 and the said application was forwarded by Executive Engineer on 28.11.2007 to the Superintending Engineer and when it was not considered the Executive Engineer again sent his recommendation on 01.02.2008, but since then no step has been taken by the authority concerned. 6. Learned counsel for the petitioners further claims that petitioners had moved before this Court earlier also vide CWJC No.523 of 2009, but it was dismissed for default on 17.05.2011, whereafter restoration petition bearing MJC No.3241 of 2011 was also dismissed on 13.10.2011. However, in the order dismissing MJC petition it was specifically observed that dismissal for default of that writ petition would not operate as res judicata and the petitioners were given liberty to file a fresh writ petition. Only thereafter the instant writ petition was filed by the petitioners. 7. On the other hand, learned counsel for the respondents vehemently opposes the contentions of learned counsel for the petitioners and states that since at the time of his death the deceased employee was not regularized no order was passed on the application of his widow, namely petitioner no.1. Only thereafter the instant writ petition was filed by the petitioners. 7. On the other hand, learned counsel for the respondents vehemently opposes the contentions of learned counsel for the petitioners and states that since at the time of his death the deceased employee was not regularized no order was passed on the application of his widow, namely petitioner no.1. It was also submitted that petitioner no.2 filed his application for the same purpose much belatedly in the year 2007 and hence the said application was also not considered. 8. Considering the averments made by learned counsel for the parties and the materials on record it is quite apparent that petitioner no.1 had filed her application for compassionate appointment in the year 1993 within five years of the death of her husband in the year 1989 and the said application was pending when the services of the deceased employee was regularized in the year 1996. Hence it was the duty of the authority concerned, namely the Superintending Engineer to consider the matter and pass an appropriate order with respect thereto. 9. It also becomes quite apparent that during the pendency of the application of petitioner no.1, petitioner no.2 attained majority and naturally the mother wanted that in her place her son would be appointed and accordingly an application was filed by them in the year 2007 for appointment of the son on compassionate ground. It is further apparent that the said application was in continuation of the earlier application of 1993 and was forwarded by the concerned authority and recommendation was also sent, but in spite of that no step was taken in that regard. 10. In the aforesaid facts and circumstances, this writ petition is disposed of with a direction to the petitioners to approach the Superintending Engineer, National High Way Work Circle, Road Construction Department, Govt. of Bihar, Patna within one month along with both the applications of petitioner no.1 and petitioner no.2 as well as the relevant forwarding letter and recommendation as well as a copy of this order. If petitioner no.2 approaches the said authority within the aforesaid time, the said authority shall consider the claim of the petitioners in accordance with law considering the above observations of this Court expeditiously, preferably within a period of two months from the date of receipt/filing of a copy of this order.