JUDGMENT 1. Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:- "For quashing the decision of the District Compassionate Committee, Muzaffarpur contained in memo no. 964 dated 30.10.2012 communicated to this petitioner vide memo no. 2796 dated 06.12.2012, in respect of this place at Sl. No. 22, whereby and under the candidature of the petitioner for appointment on compassionate ground has been rejected as respondent no. 6 has not forwarded form for consideration, before the District Compassionate Appointment Committee because a son of deceased employee is working as constable in Patna district Force and same stand is adopted by District Compassionate Appointment Committee, Muzaffarpur. For a direction upon the respondents to consider the case of the petitioner for compassionate appointment in true spirit of Rules which provided definition of "Family" which ought to be considered in context of dependency of the deceased employee not as a whole." 3. Learned counsel for the petitioner in support of the aforementioned prayer has submitted that the impugned order, passed pursuant to the decision of the District Compassionate Appointment Committee, Muzaffarpur rejecting the case of the petitioner for appointment on compassionate ground, is wholly arbitrary and illegal, inasmuch as, mere employment of the brother of the petitioner in Government service could not have been held to be a disqualification for appointment of the petitioner on compassionate ground. Learned counsel for the petitioner has also referred to the documents enclosed with the writ application to show that the brother of the petitioner was already separate in mess and business prior to the death of the father of the petitioner, the deceased employee and as such the reason given by the District Compassionate Appointment Committee, Muzaffarpur for rejecting the case of the petitioner for appointment on compassionate ground is factually incorrect and legally unsustainable. Reliance in this regard has also been placed by him on a judgment of this Court in the case of Santosh Kumar Vs. State of Bihar & Ors. reported in 2013(1) PLJR 454 . 4. Reliance in this regard has also been placed by him on a judgment of this Court in the case of Santosh Kumar Vs. State of Bihar & Ors. reported in 2013(1) PLJR 454 . 4. He has also submitted that the refusal on the part of the Commandant, BMP-6, Muzaffarpur to recommend the case of the petitioner for appointment on compassionate ground was also contrary to the policy of compassionate appointment contained in Government Circular dated 05.10.1991, wherein, the controlling authority of the deceased employee is under an obligation to recommend the case of the dependent of such deceased employee for his appointment on compassionate ground in order to enable the District Compassionate Appointment Committee to take its decision. 5. Mr. J. S Barnwal, SC-1 appearing on behalf of the State on the other hand has submitted that under the prevalent policy framed for compassionate appointment in the Government of Bihar, it is the status and condition of the family which has to be taken into account for deciding the case of Compassionate Appointment. He has, accordingly, supported the impugned decision taken by the District Compassionate Appointment Committee by explaining that once it was found that the younger brother of the petitioner was already in employment in the police department itself, it could not be said that the condition of the family of the deceased employee is in penury necessitating appointment on compassionate ground. He has also placed reliance on a judgment of the division bench of this Court in the case of Vishal Kr. Vs. The State of Bihar & Ors. reported in 2004(2) PLJR 453 which was also followed by the learned single judge in the order dated 27.07.2004 passed in C.W.J.C. No. 6668 of 2003 (Mahabir Paswan vs The State of Bihar and Ors.) 6. Mr. Barnwal has also submitted that the controlling officer of the deceased employee is under no obligation to favourly recommend each and every case to the District Compassionate Appointment Committee and in an appropriate case where he is of the view that the dependent of the deceased employee is not eligible and/or fit to be appointed on compassionate ground be can definite record his adverse findings in the column prescribed in the format of the application. He too in this regard has relied on the same government policy dated 5.10.1991 laying down the norms of consideration for compassionate appointment. 7. He too in this regard has relied on the same government policy dated 5.10.1991 laying down the norms of consideration for compassionate appointment. 7. Before this Court would advert to the aforementioned submissions, it would be necessary to record here that the father of the petitioner late Satyadeo Prasad was a constable in Bihar Police who having continued in service for more than 39 years i.e. from 19.10.1971 to 07.12.2010 had died in harness on 07.12.2010. Thereafter the petitioner being the son of the deceased employee had filed his application for appointment on compassionate ground in which he had given the name of three family members as dependents namely, Gayatri Devi, the mother of the petitioner, Anil Kumar (petitioner himself) and Arvind Kumar, the second son. It is not in doubt that in fact it has been admitted by the petitioner himself in paragraph no. 5 that his younger brother Arvind Kumar is already employed on the post of constable in Bihar Police since, 1999. To that extent, the statement of the petitioner in paragraph no. 5 is relevant and is quoted hereinbelow:- "That late Satyadeo Prasad is blessed with two sons and a daughter namely, Sri Anil Kumar (petitioner herein), Smt. Sunita Devi and Sri Arbind Kumar. During his lifetime, he solemnized marriage of all his children. His elder son namely Anil Kumar is an un-employed while his younger son Arbind Kumar joined the post of Constable, in the year 1999, in Bihar Police." 8. According to the petitioner when he had submitted his application for appointment on compassionate ground, the same in the first round on consideration by the District Compassionate Appointment Committee was returned with certain objections directing the petitioner to submit certain certificates with regard to the movable and immovable property held by all the members of the family, the total member in the family, the total income of all the family members including family pension and certificate of character and criminal antecedent of the petitioner. The petitioner himself claims to have submitted those documents on 20.10.2011 whereafter the District Compassionate Appointment Committee in the meeting held on 25.08.2012 had rejected the case of the petitioner by recording as follows:- **22 Lo0 lR;nso izlkn] HkwriwoZ v0fu0] fcgkj lSfud iqfyl&06] dk;kZy; eqt0] LFkk;h irk& xzke& eqLrQkiqj] uxoka] iksLV& nkesniqj cY?kk] Fkkuk& uxjukSlk ftyk ukyank] fcgkj Jh vfuy dqekj ¼izFke iq=½ bUVjfefM,V e`rd ds NksVs iq= vjfoUn dqekj iVuk ftyk cy ls flikgh ds in ij dk;Zjr gSA bl dkj.k lekns"Vk }kjk fofgr izi= ls vuq'kalk ugh dh gSA fopkjksijkUr e`rd ds NksVs iq= ds ljdkjh lsok eas jgus ds dkj.k buds ekeys dks loZlEefr ls vLohd`r djus dk fu.kZ; fy;k x;kA* 9. In the considered opinion of this Court, the aforesaid decision taken by the District Compassionate Appointment Committee does not suffer from any error. The policy of compassionate appointment of the State Government which initially came into existence by Circular dated 12.07.1977 had specifically laid down that compassionate appointment would be offered to the dependent of the family of the deceased employee only if the family was in distress. The same principle was further reiterated in the revised policy of the State Government Circular dated 05.10.1991 and in fact such policy of compassionate appointment which is prevalent even at present contains a clear provision that the condition of the family of the deceased employee would be primarily taken into consideration while deciding the claim of compassionate appointment of a dependent of the deceased employee. 10. In fact when the District Compassionate Appointment Committee had called for the certificates from the petitioner as enumerated in the letter of the Commandant, BMP-6, Muzaffarpur dated 08.09.2011, the object of the same was only to ascertain the financial condition of the family of the deceased employee. The petitioner has very conveniently not enclosed those certificates which he claims to have submitted on 20.10.2011, which were part of Annexure-4 and has given only the truncated documents to suppress this fact. In the entire writ application the petitioner has not even revealed as to the amount of family pension being paid to the mother of the petitioner and what is still more shocking is that even when the petitioner has produced the application in the prescribed proforma, column no. 3 thereof has been kept vacant. In the entire writ application the petitioner has not even revealed as to the amount of family pension being paid to the mother of the petitioner and what is still more shocking is that even when the petitioner has produced the application in the prescribed proforma, column no. 3 thereof has been kept vacant. Column No. 3 is with regard to total income of the family of the deceased employee and the person filling the application form for appointment on compassionate ground has to disclose the amount of family pension, the amount of death cum retirement gratuity, the amount of Provident Fund, the amount drawn from Life Insurance Policy as also the details of movable and immovable property and the annual income of the family. 11. In absence of all these informations which were crucial for determining the claim of compassionate appointment, this Court will proceed on the basis that when the petitioner had produced those certificates and they were placed before the District Compassionate Appointment Committee and also taken into account while rejecting the case of the petitioner. Thus the decision of the District Compassionate Appointment Committee headed by the Collector of the District is based on full consideration of the relevant materials including the adverse recommendation of the S.P., Muzaffarpur. This Court is also not impressed with the submission of the learned Counsel for the petitioner that the Appointing Authority or Controlling of the deceased employee has no power to record his views as with regard to the merit of the claim of appointment on compassionate ground of the dependent of the deceased employee. Not only the prescribed proforma in Part-2 of application for compassionate ground requires the controlling authority to record his recommendation but in fact he is the best person to evaluate the need of such compassionate appointment. 12. As noted above the deceased employee, the father of the petitioner had left behind his family of three persons namely the widow and his two sons which also stands admitted from the averments made by the petitioner in the writ application as also in the application filed by him seeking appointment on compassionate ground. 12. As noted above the deceased employee, the father of the petitioner had left behind his family of three persons namely the widow and his two sons which also stands admitted from the averments made by the petitioner in the writ application as also in the application filed by him seeking appointment on compassionate ground. Out of them the widow of the deceased employee i.e., the mother of the petitioner has not only received the entire death cum retirement benefit of her husband in the form of gratuity, Provident Fund, leave encashment and group insurance but is also receiving family pension every month. The certificate of Anchal Adhikari dated 03.01.2011 would also go to show that the family had also held immovable property in form of land and at least Rs. 40,000/- per year was said to be the income from such immovable property. 13. In that view of the matter, if another son of the deceased employee was already in Government service working on the post of constable in Bihar Police since 1999, it cannot be said that the condition of the family was one of penury, a concept which was laid down by the Apex Court in the case of Umesh Kumar Nagpal Vs The State of Haryana reported in 1994(4) SCC 138 , wherein, it was held that the dependent of an employee dying in harness and leaving his family in penury without any means of livelihood would alone be entitled for being considered for appointment on compassionate ground on purely humanitarian consideration that unless some source of livelihood is provided the family would not be able to make both ends meet. In this regard the Apex Court had held as follows:- The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and met-it. No other mode of appointment nor any other consideration is Neither the Governments nor the 140 public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and met-it. No other mode of appointment nor any other consideration is Neither the Governments nor the 140 public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the Change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned. 14. Having regard to the aforementioned law laid down by the Apex Court, this Court would not find any error in the decision taken by the District Compassionate Appointment Committee, inasmuch as, the same philosophy has been also borrowed in the Government policy of compassionate appointment relevant portion whereof reads as follows:- ^^funs'kkuqlkj v|ksgLrk{kjh dks dguk gS fd lsokdky esa ljdkjh lsodksa dh vlkef;d e`R;q ds pyrs cgqrsjs ekeys esa muds ifjokj ds vkfJr lnL;ksa dh ?kksj vkfFkZd ladV dk lkeuk djuk iM+rk gSA ,slh foifRr ds le; lacaf/kr ljdkjh lsod ds ifjokj dks lkgk¸; nsus ds iz'u ij 'kklu dqN le; ls fopkj dj jgk FkkA bl laca/k esa jkT; ljdkj us fu.kZ; fy;k gS fd ,sls ljdkjh lsodksa ds ifjokj ds fdlh ,d lnL; dks oxZ&3 ,oa oxZ&4 ds inksa ij] tgka yksd lsok vk;ksx ds ijke'kZ dh vko';drk ugha gS] fu;qfDr esa izkFkfedrk nh tk;sA mDr izkFkfedrk ds fy;s fuEufyf[kr 'kŸkZ ,oa rF; vfuok;Z gksaxs& ¼1½ e`r ljdkjh lsod ds ifjokj dh vkfFkZd fLFkfr vPNh u gks] vFkkZr ml ifjokj dk dksbZ Hkh lnL; fdlh izdkj dk thfodksiktZu dk dk;Z u djrk gks vkSj ;fn djrk Hkh gks rks mldh vkenuh iwjs ifjokj ds lk/kkj.k Hkj.k&iks"k.k ds fy;s vi;kZIr gks ,oa mldh lEizfr vkSj nsunkjh dks ns[krs gq, bl izdkj dh lgwfy;r nsuk tk;t gksA ¼2½ --------------------------------------------------------------------------------------------------------------------------------------------- ¼3½ --------------------------------------------------------------------------------------------------------------------------------------------- ¼4½ --------------------------------------------------------------------------------------------------------------------------------------------- ¼5½ --------------------------------------------------------------------------------------------------------------------------------------------- ¼6½ --------------------------------------------------------------------------------------------------------------------------------------------- ¼7½ -----------------------------------------------------------------------------------------------------------------------------------------** 15. An aspect which has been sought to be canvassed with repeated emphasis by learned counsel for the petitioner that the brother of the petitioner who was already employed in Bihar Police since 1999 on the post of constable having been separate in mess and business from the lifetime of his father would not be treated to be a part of the family so as to disentitle the other dependent in the opinion of this Court is infact an argument in desperation. It has to be kept in mind that it is the family of the deceased employee which has to be offered employment on compassionate ground and if the family, like in the case of the petitioner consisting only of three persons namely, the widow and the two sons out of whom two of them have sufficient means of sustenance, the family cannot be said to be in distress or penury. 16. As noted above, it is not the hereditary right which has been created under the scheme of compassionate appointment that after the death of the father, the son must be employed. The Government therefore, in all fairness has laid down a firm guideline for evaluating the condition of the family by prescribing the information to be disclosed in the application itself. The District Compassionate Appointment Committee, therefore, was fully justified in going into the aspect of resources available to the family and its decision to reject the case of the petitioner on the ground that the younger brother of the petitioner was already employed in Bihar Police cannot be said to be alien to the concept of compassionate appointment. It is this aspect of the matter which has been considered by the Division Bench of this Court in the case of Vishal Kr (supra), wherein, it was held as follows:- "Upon the death of his father the appellant applied for job as a compassionate appointment. The claim was rejected on 21.05.2003 by the District Compassionate Committee of which the collector is the Chairman. The matter relates to seeking a job in the Rural Engineering Organisation Department. The job was denied by the Committee on the ground that the elder brother of the appellant had been gainfully employed in the State Bank of India. The claim was rejected on 21.05.2003 by the District Compassionate Committee of which the collector is the Chairman. The matter relates to seeking a job in the Rural Engineering Organisation Department. The job was denied by the Committee on the ground that the elder brother of the appellant had been gainfully employed in the State Bank of India. The contention of the appellant is to the effect that his brother and father were separate and evidence was offered, to the effect, that this was so. The Court is afraid, this logic of law will not apply for if there will be rivalry within the family as in the present case between the father and the son or between siblings, a job can be offered on the principle of compassionate appointment only to one person and when one is gainfully employed, there is no obligation to offer a job in an otherwise backdoor entry employment. An order has been cited in the case of Bharat Prasad vs State of Bihar, and other reported in 1998 (1) PLJR 125 . From paragraph 4 of the order, it is clear that the learned judge has clearly mentioned that he is not deciding the validity of any guideline and merely permitted filing of a representation. This case does not apply to the circumstances of the case under consideration. 17. The aforesaid view of Division Bench was also followed by the learned single Judge in the case of Mahabir Paswan (supra), wherein, it was held as follows:- In the matter of Vishal Kumar(supra), this Court after taking into consideration the argument that the employed brother and the father were living separately and evidence was offered to that, the said petitioner was entitled to an appointment, observed” the Court is afraid, this logic of law will into apply if there will be rivalry with in the family as in the present case between the father and the son or between siblings, a job can be offered on the principle of compassionate ground only to one person and when on in gainfully employed, there is no obligation to offer a job in an otherwise backdoor entry employment.” The above referred observations of the Division Bench certainly strike at the very roots of the petitioner’s rights. In each of the case, on of the son of the deceased is gainfully employment in the Government job. In each of the case, on of the son of the deceased is gainfully employment in the Government job. If one son is already employed and the Division Bench says that there is no obligation to offer a job in an otherwise back-door entry employment then the petitioners certainly would not be entitled to appointment on compassionate ground. The petitioners deserve to and are accordingly dismissed. 18. In view of the aforementioned Government policy and the binding precedent of the Division Bench neither of which has been noticed in the case of Santosh Kumar (supra), the subsequent view taken by the learned Single Judge has to be held per incurium specially when it has also not noticed the judgment of the Apex Court in the case of Umesh Kr Nagpal (supra) laying down law to the contrary. This Court therefore, is not in a position to follow the ratio laid down in the case of Santosh Kumar(supra). 19. In this context it would be useful to refer to a passage of the judgment of the Apex Court in the case of Ratiram and Others vs The State of Madhya Pradesh reported in 2012(4) SCC 516 wherein, while dealing with the concept of per incurium, it had been held as follows:- "The decisions rendered in Moly Case, (2004)4 SCC 584 and Vidyadharan case, (2004) 1 SCC 215 have not noted the decision in Bhooraji case, (2001) 7 SCC 679 , a binding precedent, and hence they are per incuriam and further, the law laid down therein, whereby the conviction is automatically set aside or the matter is remanded after getting aside the conviction for fresh trial on mere procedural irregularity in committal proceedings without examining whether it has occasioned a failure of justice as laid down herein, does not expound the correct proposition of law and, accordingly, they are hereby, to that extent overruled." 20. That being so, this writ application must fail and is, accordingly, dismissed. There would be, however, no order as to costs.