(WPS No.8170/2019) CGHC010335812019 2026:CGHC:35399 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 8170 of 2019 Jitendra Singh Kshatriya, S/o late Ishwar Singh Kshatriya, aged about 35 years, R/o Village Gidha, Tahsil & District Mungeli, Chhattisgarh. ... Petitioner versus 1. State of Chhattisgarh, through the Secretary, School Education Department, Mantralaya, Atal Nagar, New Raipur, Chhattisgarh. 2. The Collector, Mungeli, District Mungeli, Chhattisgarh. 3. The District Education Officer, Mungeli, District Mungeli, Chhattisgarh. 4. Rajkumar, S/o late Ishwar Singh, R/o Village Rohrakhurd, Post Office Gidha Nala, Tahsil & District Mungeli, Chhattisgarh. ... Respondents For Petitioner : Mr. Samsun Samuel Masih, Advocate. For Respondents No.1 to 3 : Mr. Rahul Tamaskar, Government Advocate. For Respondent No.4 : Mr. Sunil Sahu, Advocate. Single Bench:- Hon'ble Shri Justice Sanjay K. Agrawal Order on Board 11/08/2026 1. Invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner has called in question legality, validity and correctness of the order dated 7-8-2019 (Annexure P-1) passed by the District Education Officer, District SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2026.08.12 17:10:03 +0530 (WPS No.8170/2019) Mungeli, by which respondent No.4 has been appointed on compassionate basis on account of death of his father and that of the petitioner. 2. The aforesaid challenge has arisen on the following factual backdrop:- 3. Ishwar Singh Kshatriya died in harness while working as Peon in the Government Higher Secondary School, Dharampura, District Mungeli, on 29-9-2016. He had two wives. The petitioner is son born out of the wedlock with first wife Usha Bai, whereas, it is the case of the petitioner that the deceased Government servant had left his first wife and started living with second wife Milaukin Bai and respondent No.4 is son born out of the wedlock with second wife Milaukin Bai. In the Governmental records, names of second wife Milaukin Bai and their children were entered into as nominees. Succession case was filed by first wife Usha Bai, the petitioner and other LRs in which the Succession Court by order dated 8-1-2018 granted 1/8th share to each excluding Milaukin Bai against which second wife Milaukin Bai and their children filed Miscellaneous Civil Appeal No.5-A/2018 before the District Judge, Mungeli and the learned District Judge has suitably modified the order dated 8-1- 2018 and held that all the legal heirs of late Ishwar Singh Kshatriya will be entitled for 1/8th share. 4. The petitioner herein has filed WPS No.5162/2018 in which a coordinate Bench of this Court by order dated 13-8-2018 directed the (WPS No.8170/2019) District Education Officer, District Mungeli to consider his case which the District Education Officer has considered by order dated 29-9-2018 and disposed of the matter holding that the appeal preferred by second wife Milaukin Bai against the order passed in the succession case is pending consideration. Thereafter, the impugned order dated 7-8-2019 (Annexure P-1) has been passed granting compassionate appointment to respondent No.4 leading to filing of this writ petition. 5. Mr. Samsun Samuel Masih, learned counsel appearing on behalf of the petitioner, would submit that the petitioner being the elder son out of the wedlock of the deceased Government servant with his first wife Usha Bai, is entitled for compassionate appointment, on first preference in accordance with the circular dated 14-6-2013 and revised circulars dated 22-3-2016 & 30-4-2016. He would rely upon the decision of this Court in the matter of Piyush Kumar Anchal v. State of C.G., through the Secretary and others1 to buttress his submission. 6. Mr. Rahul Tamaskar, learned Government Advocate appearing on behalf of the State/respondents No.1 to 3, would oppose the writ petition and support the impugned order. 7. Mr. Sunil Sahu, learned counsel appearing on behalf of respondent No.4, would submit that the petitioner’s application for grant of compassionate appointment has already been rejected vide order 1 2022 SCC OnLine Chh 513 (WPS No.8170/2019) dated 29-9-2018, which he has not challenged and thus, it has attained finality, therefore, the writ petition deserves to be dismissed. 8. I have heard learned counsel appearing for the appellant Insurance Company and considered her submissions and also went through the record with utmost circumspection. 9. The objection of respondent No.4 with regard to the petitioner’s application having been rejected, deserves to be noticed at the first instance, as his application has been rejected on the ground that the appeal preferred by Milaukin Bai against the order of the Succession Court is pending consideration before the District Court and consent has not been given by the second wife and her children, and as such, it has not been considered on merits. Since the application of the petitioner has not been rejected on merits and it has been rejected on account of pendency of appeal, the order dated 29-9-2018 would not be a bar to the petitioner to question the compassionate appointment granted in favour of respondent No.4. 10. Admittedly, the petitioner is son of late Ishwar Singh Kshatriya – the deceased Government servant, aged about 35 years born out of the wedlock with first wife Usha Bai and respondent No.4 is also son of the deceased Government servant born out of the wedlock with second wife Milaukin Bai i.e. the second marriage. As per the decision of the Supreme Court in the matter of Union of India v. V.R. Tripathi2, respondent No.4 would be the legitimate son for the purpose of grant of compassionate appointment, which is no longer 2 (2019) 14 SCC 646 (WPS No.8170/2019) res integra and it has been held that a child born from a second marriage is legitimate and a child born from the second marriage of a deceased employee is also entitled to the benefit of compassionate appointment which has further been followed by the Supreme Court in the matter of Mukesh Kumar and another v. The Union of India and others3. 11. In that view of the matter, the petitioner being elder son of the deceased Government servant and admittedly, aged about 35 years, and respondent No.4 being younger son of the deceased Government servant, both are entitled for compassionate appointment irrespective of the fact that respondent No.4 is legitimate son of the deceased Government servant born out of his wedlock with second wife Milaukin Bai. 12. Now, the question would be, who would be entitled for compassionate appointment in view of the two rival claims, whether the petitioner being elder son or respondent No.4 being younger son? 13. In this regard, circular dated 14-6-2013 revised vide subsequent circulars dated 22-3-2016 and 30-4-2016 may be noticed herein. Paragraph 5 of the circular dated 14-6-2013 states as under: - 5. अक उद र. - दग सक सक क आ !र र क "#"$ %क सद%& ' स कस एक सद% क) * द+ , स र अ- ./ (क) क अ%क र कर र ) र ($) क) ए उसक 2 / इस अ, ' आग (ग), (घ) ए (ङ) क अक ,7 * र क 8 ग 7- (क) दग सक सक क ध /धर, 3 (2022) 14 SCC 161 (WPS No.8170/2019) ($) /द;क , (ग) /द;क , (घ) आ ध /आ द;क ध ए, (ङ) आ # कद /आ # कद द;क , (च) व । 14. A focused perusal of paragraph 5 of the aforesaid circular would show that first preference should be given to widow or widower of the deceased Government servant. In this case, both the widows of the deceased Government servant have not claimed for compassionate appointment. Second preference is son/adopted son, daughter/adopted daughter, etc.. In the instant case, the dispute is in between the two sons of the deceased Government servant, one is elder son and another is the younger son, but the circular is silent about the manner/method of consideration in case of two rival claims in one category. 15. In this regard, the decision of the Patna High Court in the matter of Raj Kishore Kumar v. State of Bihar4 may be noticed herein profitably in which it has been held that it is the settled principle of law that the entitlement to compassionate appointment has to be considered in order of seniority, i.e., case of the elder brother will have the first priority and only if his case is rejected then the case of the younger brother shall be considered. It has been observed in paragraph 9 as under: - “9. In the aforesaid facts and circumstances, both the writ applications are allowed and the impugned letter dated 27.12.2005 and the decision of the District Compassionate 4 2009 SCC OnLine Pat 582 (WPS No.8170/2019) Committee dated 8.12.2005 in C.W.J.C. No.993 of 2006 as also the impugned letter dated 8.11.2006 and the decision dated 10.8.2006 of the District Compassionate Committee in C.W.J.C. No.16352 of 2008 are quashed and the matter is remanded to the District Compassionate Committee, Muzaffarpur to reconsider the cases of both the petitioners in accordance with law and take a final decision in the matter within a period of two months from the date of receipt/ production of a copy of this order. It is made clear that as per the settled decisions of this Court the entitlement to compassionate appointment has to be considered in order of seniority, i.e., case of the elder brother, Jai Kishore Manto will have the first priority and only if his case is rejected then the case of the younger brother Raj Kishor Kumar shall be considered.” 16. As such, the decision of the Patna High Court in Raj Kishore Kumar (supra) recognizing the principle that in case of two sons being eligible, elder son has to be preferred first in order of seniority and will have the first priority if qualified/eligible as per rules, appears to be valid, rational and justified. The principle of law laid down by the Patna High Court in Raj Kishore Kumar (supra) has been followed by the Jharkhand High Court in the matters of Janki Devi and another v. Jharkhand State Electricity Board and others5 and Abhishek Nitin v. Jharkhand State Electricity Board and others6. I fully agree with the view taken by the High Court of Patna in Raj Kishore Kumar (supra) followed by the Jharkhand High Court. 17. In view of the aforesaid analysis, it is quite vivid that the petitioner being elder son of the deceased Government servant would be entitled for compassionate appointment in preference to younger son 5 2014 SCC OnLine Jhar 816 6 2014 SCC OnLine Jhar 2775 (WPS No.8170/2019) respondent No.4 herein. Accordingly, the order impugned dated 7- 8-2019 (Annexure P-1) passed by the District Education Officer, District Mungeli, is hereby quashed and the matter is remitted to the District Education Officer, Mungeli to pass fresh order after hearing the petitioner subject to his fulfilling other eligibility criteria on the date of application. Decision shall be taken within 30 days from the date of receipt of a copy of this order. 18. With the aforesaid observation and direction, the writ petition stands allowed to the extent sketched herein-above leaving the parties to bear their own cost(s). Sd/- (Sanjay K. Agrawal) Judge Soma