Patna High Court
Dilip Kumar Bhattacharya And Ors. vs State Of Bihar And Ors. on 24 November, 2004
Equivalent citations: 2005(1)BLJR139
ORDER Nagendra Rai, A.C.J. and S.N. Hussain, J.
1. All the appeals arise out of an order dated 27.8.2003 passed by the learned single Judge except L.P.A. Mo. 303 of 2004 which arises out of an order dated 26.9.2003 passed in C.W.J.C. No. 8241 of 2003 relying on the earlier order dated 27.8.2003, and the point involved in all the appeals being the same they have been heard together and are being disposed of by this common order.
2. L.P.A. Nos. 1200 of 2003 and 303 of 2004, are barred by limitation.
3. After having heard learned counsel for the parties and taking into consideration the averments made in the limitation petitions, the delay in filing both the appeals is condoned.
4. Admitted facts are that the fathers of the appellants were initially engaged in work-charged establishment. Later on, in terms of the Government Policy, their services were regularised and made permanent. However, posts in the work-charged establishments were carried to the permanent establishment for the purposes of making them permanent. They died while in service. The appellants claim appointment on compassionate ground in terms of the Government Policy. In some cases it has been rejected and in some cases no order has been passed on the ground that in view of the policy decision of the State Government dated 27.12.2002 benefit of appointment on compassionate ground will be available only to the dependents of those employees who were appointed on sanctioned post through proper procedure and as the deceased employees were in work-charged establishment and their services were regularised and made permanent, their dependents are not entitled to the benefit of compassionate appointment. Learned single Judge relying upon the Government decision accepted the stand of the State Government and held that the case of the deceased employees whose services were regularised and made permanent stand on different footing than those employees who are appointed by following legal procedure and as such their dependents cannot claim compassionate appointment.
5. The factual foundation for deciding the controversy is like this. The deceased employees on whose death these appellants claim compassionate appointment were admittedly employees in the workcharged establishment of the Government of Bihar. It is also an admitted position that the Water Resources Department came out with a policy decision on 25.5.1978 that those employees who have completed more than five years in service on 1.4.1977 should be regularised and they should be made permanent, however, the post in the work-charged establishment to the extent of the employees being made permanent should be reduced. A copy of the said policy decision has been annexed as Annexure 1 to C.W.J.C. No. 2064, out of which L.P.A. No. 897 of 2003 arises. The same policy was again reiterated by the State Government on 20.8.1981.
6. The employees after regularisation were working in permanent establishment and were getting revision of pay etc. and in case of some of the employees after their death their family members were getting family pension. The deceased employees while working in that capacity died in harness and thereafter the appellants applied for compassionate appointment. In many cases recommendations were made for appointment and in some cases it has been rejected. There is no dispute that the Water Resources Department has come out with a policy contained in letter No. 239 dated 17.2.1995 which is annexed as Annexure-2 to the aforesaid writ application that the benefit of compassionate appointment will be also available to the dependents of the work-charged employees whose services were regularised in regular establishment with their post by the competent authority and on the basis of the said circular the appointments were being made to the class of the employees earlier in the work-charged establishment but later on taken into permanent establishment. Thereafter, impugned circular dated 27.12.2002, which has been challenged, was issued by the Water Resources Department providing that the benefit of appointment on compassionate ground will be available to the dependents of those deceased employees who were appointed through proper procedure. In other words, the said benefit will not be available to the dependents of those permanent employees whose services were regularised from work-charged establishment and were being made permanent and on that basis the claims of some of the appellants as stated above have been rejected and in some cases no decision has been taken.
7. The appellants' case is very simple that though the deceased employees were initially appointed in the work-charged establishment but later on in terms of the Government Policy decision they were made permanent by mode of regularisation and once their services were regularised on permanent basis and they were given all the benefits of permanent employees, their claims for compassionate appointment cannot be rejected by making a distinction between the employees recruited according to proper procedure and the employees made permanent through mode of regularisation from work-charged establishment. This distinction is arbitrary and having no nexus with the object sought to be achieved, i.e. to give benefit to the family of the deceased employees dying in harness.
8. It has not been disputed by the State that in terms of the Policy of the State Government the services of the deceased employees, who were working in the work-charged establishment, were regularised and they were taken into permanent establishment but their stand is that the circular of 1995 providing for giving benefit of compassionate appointment to the wards of the employees who were in work-charged establishment and whose services were regularised, was issued contrary to the circular of the Department of Personnel and Administrative Reforms dated 5.10.1991, wherein it has been provided that for the purpose of appointment of dependents on compassionate ground only those will be considered Government servant who were appointed by following general norms of appointment such as advertisement etc. and thereafter the Water Resources Department having come to know, clarified the same and issued the letter dated 27.12.2002 confining the benefit of compassionate appointment to only those dependents who had been appointed through proper procedure and as such the appellants are not entitled to compassionate appointment.
9. Before coming to the law with regard to compassionate appointment, first it is apt to refer to the provisions of Bihar Public Works Department Code, dealing with Work charge employees and their future prospects. In this connection, it is relevant to quote part-K of Chapter-l, Rules 59 to 62 which run as follow ;
59. Works establishment will include such establishment as is employed upon the actual execution, as distinct from the general supervision of a specific work or of sub-works of a specific project, or upon the subordinate supervision of departmental labour, stores and machinery in connection with such work or sub-work. When employees borne on the temporary establishment are employed on work of this nature, their pay should, for the time being, be charged direct to works.
Note 1.-Chief and Superintending Engineers are empowered, in consultation with the Accountant General, to classify as 'work charged' or 'temporary' classes of establishment not covered by the definition, to waive the rule which prescribes that work-charged establishment must be employed on a specific work, and to determine in such cases the proportion in which' the cost of such establishment shall be allocated between the works concerned.
Note 2.-No post carrying a remuneration, the maximum of which exceeds Rs. 400, can be sanctioned as work charged establishment.
Note 3.-Posts borne on work charged establishments which are required throughout the year for maintenance works, etc. or for a long and indefinite period should be made permanent and included in the permanent establishment with the approval of Government.
60. Chief, Superintending and Executive Engineer may appoint members of work-charged establishment up to the upper limit of pay of Rs. 400, Rs. 250 and Rs. 100 per mensem, respectively, for each person so employed, subject to the condition that provision for the same exists in a separate sub- head of the sanctioned estimate, and subject further to the condition that scales of pay of such work-charged posts have been approved by Government from time to time.
Note 1.-Sanctioned estimate includes rough estimate also. In such cases, however, details of works establishment should be specified.
Note 2.-Approval of Government will be required for sanction of and appointment to, posts borne on workcharged establishment on scales of pay outside the approved scale, notwithstanding the fact that the scales of such pay posts are within the upper limits of pay specified in the rule above.
Note 3.-Where it is intended to give higher initial pay in the person of scale of pay, to members of workcharged establishment appointed by the Executive Engineer, the higher initial pay should be sanctioned by the Superintending Engineer, and in the case of the work-charged establishment appointed by the Superintending Engineer, the higher initial pay should be sanctioned by the Chief Engineer. Government sanction must be obtained for allowing premature increments in the time scale of pay of posts, the maximum of which exceeds Rs. 250.
61. The cost of works establishment must be shown as a separate sub-head of the estimate.
62. The condition of service of members of work-charged establishment are the same as that of temporary Government servants, in the matter of leave, travelling allowance and other allowances, etc., except festival holidays which must not exceed 12 days in a year.
10. Note-3 of Rule 59 clearly shows that the posts borne on work-charged establishments which are required throughout the year for maintenance works, etc., or for a long and indefinite period should be made permanent and included in the permanent establishment with the approval of Government. It further appears that the workcharged establishment is an establishment created to make temporary execution of work and the pay is charged direct to works. Only in cases when post is taken for indefinite period or for long period provision for converting them into permanent employment has been made. Rule 62 provides that the conditions of service of the members of work-charged establishment are the same as that of temporary Government servants in the matter of leave, travelling allowance and other allowances etc., except festival holidays which must not exceed 12 days in a year, meaning thereby, they acquire the status of Government servant only with regard to limited matters as enumerated therein.
11. About the nature of work of the work-charged establishment, the Apex Court in the case of Jaswant Singh v. Union of India, reported in (1979) 4 S.C.C. 440 and in the case of State of Rajasthan v. Kunji Raman, reported in (1997) 2 S.C.C. 517, have held as follows :
"6. A work-charged establishment as pointed out by this Court in Jaswant Singh v. Union of India broadly means an establishment of which the expenses, including the wages and allowances of the staff, are chargeable to "works." The pay and allowances of employees who are borne on a work-charged establishment are generally shown as a separate sub-head of the estimated cost of the works. The work-charged employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employed. Thus a work-charged establishment is materially and qualitatively different from a regular establishment.
8. A work-charged establishment thus differs from a regular establishment which is permanent in nature. Setting up and continuance of a work-charged establishment is dependent upon the Government undertaking a project or a scheme or a "work" and availability of funds for executing it. So far as employees engaged in work-charged establishments are concerned, not only their recruitment and service conditions but the nature of work and duties to be performed by them are not the same as those of the employees of the regular establishment. A regular establishment and a work-charged establishment are two separate types of establishments and the persons employed on those establishment thus form two separate and distinct classes. For that reason, if a separate set of rules are framed for the persons engaged in the work-charged establishment and the general rules applicable to persons working on the regular establishment are not made applicable to them, it cannot be said that they are treated in an arbitrary and discriminatory manner by the Government. It is well -settled that the Government has the power to frame different rules for different classes of employees. We; therefore, reject the contention raised on behalf of the appellant in Civil Appeal No. 653 of 1993 that clauses (g), (h) and (i) of Rule 2 of RSR are violative of Articles 14 and 16 of the Constitution and uphold the view taken by the High Court."
12. If the employees are working in the work-charged establishment just on temporary basis, their dependents cannot claim appointment on compassionate ground in view of the fact that there is no policy decision that on the death of work-charged employees, ad hoc employees and casual employees, their dependents are entitled to compassionate appointment. There cannot be such policy for the simple reason that the object of compassionate appointment is to mitigate the hardship caused to the family of the deceased employee due to sudden demise of bread earner. It is not a mode of appointment. Mere death of an employee does not entitle the family to get compassionate appointment unless there is financial crunch in the family. The Constitutional mandate as contained in Articles 14 and 16, provide that there should be equality in the matter of employment. Employment is national property and that should be distributed to the citizens by following rational, reasonable and fair procedure and the appointment should be made by open invitation of persons fulfilling requisite qualifications for a post. However, the Apex Court has uphled the policy of compassionate appointment as not violative of Articles 14 and 16 of the Constitution on the ground that it has object to meet, i.e., the purpose of appointment on compassionate ground is to mitigate the hardship to the family of the deceased employee and thus in exception to the equality clause such appointments form class themselves. However, merely death of an employee is no ground for appointment unless the said condition is fulfilled otherwise the appointment will be violative of Articles 14 and 16 of the Constitution of India. With regard to the daily wages, ad hoc, casual and apprentice workers the Supreme Court in the case of State of Haryana v. Rani Devi, reported in (1996) S.C.C. 308, has held that if the scheme regarding appointment on compassionate ground is extended to all sorts of casual, ad hoc employees including those who are working as apprentices, then such scheme cannot be justified on constitutional grounds.
13. Thus, if the nature of appointment of the deceased employees in question will be only treated in work-charged establishment, then their dependents cannot claim appointment on compassionate ground, but that is not the question in this case. Admittedly, the case is that the deceased employees were regularised and made permanent and were getting benefits of permanent employee in terms of the Government policy of 1978 and 1981, as stated above. The question is as to whether the Government by issuing impugned circular dated 27.12.2002 can make distinction in the matter of compassionate appointment on the ground of source of appointment of deceased employees. As stated above, the only criteria for distinction is source of employment. The stand of the State is that those persons who were appointed by following proper procedure is one class and the employees of work-charged establishment being made permanent employees and having all facilities of permanent employees will fall in different category and as such on their death their dependents will not get compassionate appointment.
14. Law is well settled that if the employees fall in two different classes, then they can be classified and that will be followed for the purpose of scale, promotion and other benefits and that will not be hit by quality clause of Articles 14 and 16 of the Constitution of India. It is equally well settled that the Government has power to provide the facilities of compassionate appointment to the employees and deny the claim of other class of employees if the policy is valid and not in breach of equality clause. Equality clause operates into every act, of the State and the State cannot make deviation with regard to compassionate appointment on whimsical ground. Once the employees are made permanent, they fall in one category. The fact that they came from different source does not make any difference and once a permanent employee dies whether he was appointed by regular procedure or by regularisation and made permanent, which is also one of the mode of making an employee permanent, the sufferings will be-the same. All employees whatever were the source of their recruitment fall in one category so far appointment on compassionate ground is concerned. If an employee dies in harness leaving his family in financial crisis, then the benefit should be given to the dependents of all such employees irrespective of their mode of being made permanent. Distinction made by the State Government by letter dated 27.12.2002 is arbitrary and unjust. The" classification has been made without any reasonable differentia. There is no reason to make distinction as that would not serve the purpose for which compassionate appointment has been provided.
15. In the result, all the appeals are allowed and it is held that the policy decision of the State Government making distinction in the matter of compassionate appointment on the ground of source of entry into permanent service is held to be ultra vires and is declared as such. The earlier notification dated-17.2.1995 is held to be valid one. The respondents authorities are directed to consider the case of the appellants in the light of the aforesaid decision.
16. There shall be no order as to costs.