Santosh Kumar vs The State of Bihar and Others

Prakash Chandra Verma, J.—This writ petition has been filed by the petitioner seeking writ of certiorari to quash the order dated 17.12.2011 passed by the District Compassionate Appointment Committee, Nalanda at Biharsharif by which the application of the petitioner for appointment under dying-in-harness rules has been rejected. The application for appointment under dying-in-harness rules has been rejected on the ground that at the time of death of the petitioner''s father who died-in-harness one son of the deceased was in service in the department of railways. The deceased was an employee of State of Bihar. He was head clerk in the office of Executive Engineer, Waterways Division, Nalanda, Biharsharif.

The appointment in dying-in-harness is governed by the Government order issued by the State of Bihar from time to time in its executive power under Article 162 of the Constitution of India. No rule under Article 309 proviso-2 has been placed before me, which specifically provides that the benefit of compassionate appointment shall be available to only one dependent of the deceased. Thus, dependent of deceased is to be read alongwith the definition of the family given in the Government order. The family is defined containing the wife of deceased, son, unmarried daughter and widow of the son. It is a settled law that the definition of the family has to be considered in the context the word ''family'' has been used in the context of dependency not as a whole.

Thus, if at the time of death a son is in employment will not be a ground for rejecting the application of the dependent son, who was not in service and is entitled for appointment in dying-in-hamess rule as he will fall within the meaning of the definition of the family being dependent on the deceased.

The learned State Counsel Mr. Dhurandhar Kumar, A.C. to S.C. 16 submitted that the Division Bench in L.P.A. held that if the son is employed the claim does not go to the other son.

I have perused the judgment carefully, the rules as explained above have not been taken in account in the said judgment. Thus, the rejection of the application of the petitioner on that ground is contrary to the Government order and is hereby set aside. The writ petition is allowed. The District Compassionate Appointment Committee, Nalanda at Biharsharif is directed to reconsider the application of the petitioner for appointment under dying-in-hamess rules.