JUDGMENT : Deepak Roshan, J. Heard learned counsel for the parties. 2. The instant writ application has been preferred by the petitioner for the following reliefs:- (i) To quash and set aside the decision contained in Letter No. under the 1501 dated 15.9.2017(Annexure-3) issued under the pen and signature of District Superintendent of Education, Pakur (Respondent no.3), whereby and whereunder, the claim of compassionate appointment of the petitioner has been rejected. (ii) To direct the respondents, in particular respondent nos. 2 and 3, to consider the case of the petitioner for appointment on compassionate ground in view of the fact that his father Late Ashok Kumar Tiwari, died in harness on 15.9.2012 while working and posted as Assistant Teacher, Middle School, Babupur, Hiranpur, in the district of Pakur. (iii) For any other appropriate relief/reliefs to which the petitioner is found to be entitled in the facts and circumstances of this case as also to do conscionable justice to the petitioner. 3. The brief facts of the case as it appears from the pleadings are that the father of the petitioner died on 15.09.2012 in harness while working and posted as Assistant Teacher in Middle School, Pakur. The mother of the petitioner retired on 31.08.2017 from the post of Lady Supervisor, Department of Social Welfare, Pakur. Thereafter, the petitioner made application for compassionate appointment with all necessary documents which was rejected by letter no. 1501 dated 15.09.2017 on the ground that the mother of petitioner was in service at the time of death of father of the petitioner. Being aggrieved, the petitioner has preferred the present writ application. 4. It has been submitted by Ld. Counsel for the petitioner that in view of death of father of the petitioner in harness and that the mother of the petitioner, who was in service, also retired on 31.8.2017; rejecting the claim of the petitioner on 15.9.2017 is illegal and not in consonance with law. He further submitted that the impugned decision deserves to be quashed and set aside for the simple reason that death of father of this petitioner occurred on 15.9.2012 itself and the Circular dated 1.12.2015, which has been referred to reject the claim of the petitioner in the impugned order, may not be applicable to the case of the petitioner. 5. He further submitted that the impugned decision deserves to be quashed and set aside for the simple reason that death of father of this petitioner occurred on 15.9.2012 itself and the Circular dated 1.12.2015, which has been referred to reject the claim of the petitioner in the impugned order, may not be applicable to the case of the petitioner. 5. Learned counsel for the respondents submitted that as per the Government Rule the dependent of the deceased employee will have claim of compassionate appointment within five years from the date of death and the petitioner claimed for compassionate appointment after lapse of stipulated period of five years; as such, he is not entitled for the benefits of compassionate appointment. 6. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits it appears that the father of the petitioner died on 15.09.2012 in harness while working and posted as Assistant Teacher in Middle School, Babupur, Hiranpur in the district Pakur leaving behind a son (present petitioner), daughter and wife. It further appears that the mother of petitioner retired from service on 31.08.2017 from the post of Lady Supervisor, department of Social Welfare, Littipara, Pakur. Thereafter on 08.09.2017, the petitioner applied for compassionate appointment which was rejected by respondent no. 3 on the ground that the mother of the petitioner was in service at the time of death of father of the petitioner and reference was made to circular dated 01.12.2015 contained in letter no. 10167. 7. The main grievance of the petitioner is that on the one hand, the circular which has been taken as a ground of rejection is dated 01.12.2015; i.e. after the death of his father, as such the same shall not be applicable; and on the other hand, his mother who was in service also retired on 31.08.2017, he applied for compassionate appointment; and as such, even if we go through the circular, then also, rejecting the claim of compassionate appointment of the petitioner after her retirement relying upon the circular dated 01.12.2015, is illegal and not in consonance with law. 8. To decide the lis involved in this case, it would be profitable to refer to the relevant part of impugned order wherein ground for rejection has been elucidated bearing reference on circular dated 01.12.2015. The same is extracted herein below. 9. 8. To decide the lis involved in this case, it would be profitable to refer to the relevant part of impugned order wherein ground for rejection has been elucidated bearing reference on circular dated 01.12.2015. The same is extracted herein below. 9. From bare perusal of the above it is clear that the general rule is that appointment on compassionate grounds can be made on all types of posts of Group 'C' in pay scale PB-1, 5200-20200, upto 1800/1900 and all types of posts of Group 'D' upto maximum 1800 grade pay posts. However, the proviso appended to the general rule provides that on the death of government servant, if the husband or wife (whichever is applicable) is in government service; then the benefits of compassionate appointment will not be admissible to the dependent of the government servant. However, in the very next paragraph an exception is carved out in regards to the proviso stating that if both the husband and wife were in government service and one of them died before retirement, then the benefit of compassionate appointment will be admissible to the dependent of government servant who died during service. 10. It appears that Respondent No.3 while rejecting the claim of petitioner relied on the first proviso and concluded that since the mother of the petitioner was in service at the time of death of father of the petitioner, he could not be given the benefit of compassionate appointment. However, the second proviso was not taken into account by Respondent No. 3 while passing the rejection order for reasons best known to him. Had the second proviso been taken into account, the claim of the petitioner could not have been rejected as the claim of the petitioner is squarely covered under it. For brevity, the second part of the proviso is again extracted hereinbelow: 11. By conjoint reading of the proviso; it clearly indicates that, if both husband and wife were in Govt. Service, and one of them dies while in service, then his/her dependent shall not get compassionate appointment till the retirement of his/her mother or father (in this case-mother of petitioner). The moment, the surviving father/mother, superannuates; then the dependent of the deceased employee shall be entitled for the compassionate appointment on the ground of death of his father/mother who died in service. The moment, the surviving father/mother, superannuates; then the dependent of the deceased employee shall be entitled for the compassionate appointment on the ground of death of his father/mother who died in service. The only thing which is to be seen, is whether, the dependent has filed an application within the stipulated period of 5 years as mentioned in the 1st paragraph of the circular from the date of death of an employee on whose behalf, he is claiming compassionate appointment. 12. Admittedly, in the instant case, the petitioner has made application within 5 years from the date of death of his father who died while in service. Hence the order passed by Respondent No.3 is non-Est in the eye of law and deserves to be set aside. 13. Learned counsel for the respondents has contended that as per government rule the dependent of the deceased employee will have to claim for compassionate appointment within five years from the date of death and the petitioner has applied after lapse of the aforementioned period as such he is not entitled for the benefit of compassionate appointment. This argument of learned counsel is not acceptable to this Court since the father of the petitioner died on 15.09.2012 and the petitioner applied for compassionate appointment on 08.09.2017 as such the application was filed well within the time frame of five years as opposed to the contention of learned counsel for the respondents. 14. Having regard to the above discussion, the decision contained in Letter No. 1501 dated 15.09.2017 (Annexure- 3), is hereby, quashed and set aside and the concerned respondents are further directed to consider the case of petitioner for appointment on compassionate ground in the background of aforesaid finding and issue appointment letter within a period of 8 weeks from the date of receipt/production of copy of this order. 15. Accordingly, the writ petition stands allowed and pending I.A. if any is also disposed of.