Patna High Court - Orders
Niraj Kumar Mallick vs The State Of Bihar & Ors on 16 March, 2017
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.17143 of 2016
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Niraj Kumar Mallick
.... .... Petitioner/s
Versus
The State of Bihar & Ors
.... .... Respondent/s
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with
Civil Writ Jurisdiction Case No.19713 of 2016
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Sandip Chauhan
.... .... Petitioner/s
Versus
The State of Bihar & Ors
.... .... Respondent/s
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Appearance :
(In CWJC No.17143 of 2016)
For the Petitioner/s : Mr. Harsh Singh, Adv.
For the Respondent/s : Mr. Pushkar Narain Shahi- AAG6
(In CWJC No.19713 of 2016)
For the Petitioner/s : Mr. Santosh Kumar Singh, Adv.
For the Respondent/s : Mr. Md. N.H. Khan- SC1
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL ORDER
5 16-03-2017A counter affidavit has been filed in C.W.J.C. No. 19713 of 2016. Let it be kept on record.
Heard Mr. Harsh Singh, learned counsel for the petitioner in C.W.J.C.No.17143 of 2016, Mr. Santosh Kumar Singh learned counsel for the petitioner in C.W.J.C.No.19713 of 2016, Mr. Manish Kumar A.C. to AAG 6 for the State in C.W.J.C. No. 17143 of 2016 and Mr. Harun Qureshi A.C. to S.C.1 in the other writ petition.
Since each of the writ petition raises common issue of fact Patna High Court CWJC No.17143 of 2016 (5) dt.16-03-2017 2/6 and law hence both of them have been heard together and in the nature of the dispute engaging the writ petitions and the order which this Court proposes to pass, I would not be required to enter into the merits of the contest.
Facts of the case briefly stated is that each of the two petitioners are children of deceased Government servant claiming compassionate appointment(s). Their claims have been rejected by the respondents inter alia on grounds that there siblings are in Government employment. It is in reference to a clarification issued by the General Administration Department bearing No. 15783 dated 19.11.2014, a copy of which has been placed on record vide Annexure-A to the counter affidavit filed in C.W.J.C.No.17143 of 2016 that the claim has been rejected. The clarification at Annexure-A makes reference to a judgment of this Court passed in C.W.J.C. No. 6668 of 2004 and C.W.J.C.No.7044 of 2004 which is since been reported in 2004 (4) PLJR 121 [ Mahabir Paswan (in 6668) Jay Prakash Choudhary (in 7044) Vs. The State of Bihar & Ors.]. The writ court taking note of a Division Bench judgment of this court reported in 2004 (2) PLJR 453 (Vishal Kumar Vs. State of Bihar) has opined as follows:
"8. 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 effect, the Patna High Court CWJC No.17143 of 2016 (5) dt.16-03-2017 3/6 said petitioner was entitled to an appointment, observed "the Court is afraid, this logic of law will not apply 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 ground only to one person and when one is 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 root of the petitioners' rights. In each of the case, one of the son of the deceased is gainfully employed 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 backdoor entry employment then the petitioners certainly would not be entitled to appointment on compassionate ground. The petitions deserve to and are accordingly dismissed."
The matter was contested before the Division Bench in L.P.A. No.777 of 2004 and the Letters Patent Appeal was dismissed by the Division Bench vide judgment and order passed on 16.8.2004 while observing as such:
"Admittedly, one of the brothers of the appellant is already in the Government service.
In that view of the matter, no appointment on compassionate ground can be claimed by mere assertion of partition without supported by any cogent material. The appointment on compassionate ground is provided to mitigate the hardship caused to the bereaved family due to the untimely death of the bread-earner and it is not a mode of appointment on the ground that the father or the mother, in case of their death in harness, his/her ward has a right to get appointment. In other words, it is not a matter of appointment on the ground of descent.
In that view of the matter, we find no merit in this appeal and it is, accordingly, dismissed."Patna High Court CWJC No.17143 of 2016 (5) dt.16-03-2017 4/6
It is thus submitted by learned State counsel that since the opinion of the General Administration Department stands confirmed by the writ court as well as the Division Bench, there is no cause for interference with the order of rejection of the claim of the petitioner(s) for compassionate appointment.
Learned counsel for the petitioner(s), on the other hand and in order to meet the challenge have relied upon another Division Bench judgment since reported in 2007(4) PLJR 511 (Anil Kumar vs. State of Bihar & Ors.) to submit that the Division Bench taking note of such very stand taken by the State to disentitle the petitioner of the said case, has decided in favour of the petitioner. In my opinion paragraphs 5 to 8 of the judgment is an opinion of the Division Bench on the issue so raised and which is reproduced hereinbelow.
"5. It is submitted by Mr. Rajendra Prasad Singh, learned counsel for the appellant that wife of the appellant was employed much prior to the death of the father of the appellant and according to 1991 Rules framed by the State Government, the appellant was entitled for compassionate appointment as he was one of the dependents and had no means of livelihood. Learned counsel further submitted that wife of the appellant was residing separately with her parents and she never supported the family and, therefore, the appellant was in dire need of appointment on compassionate ground to support the bereaved family members. In this connection, Mr. Singh drew our attention to Annexures 3 and 4 of the writ application saying that the matter about living separately of the wife of appellant was Patna High Court CWJC No.17143 of 2016 (5) dt.16-03-2017 5/6 inquired into by the State authorities and it was reported that the wife was living separately since long in her parents' home and she was not supporting the family.
6. From a bare look of Annexures 3 and 4 of the writ application, it appears that the wife of the appellant was living separately in her Maike and certain formalities of execution of Panchnama was prepared by the husband for separation but in fact there had been no judicial, separation. The report as contained in Annexure 3 throws some light on the question of living the wife of the appellant separately and also on the question that they were not having good relationship. The requirement of Rule, 1991 of the State Government, in this view of the matter, would be a negation on the ground of employment of wife of the appellant.
7. The purpose of compassionate appointment is to provide immediate succour to the bereaved family and Rule 1991 in this regard is very specific that one of the dependents of the deceased should be given appointment for immediate succour to the bereaved family. The factum of employment of wife of the appellant, in this view of the matter, would hardly be a ground to refuse appointment on compassionate ground in the given facts and circumstances of the case.
8. Regard being had to the facts and circumstances of the case as noticed above, the findings recorded by learned Single Judge of this court, in our view, would not be sustainable. The matter, therefore, requires fresh consideration by the State authorities."
Although the Division Bench in the case of Anil Kumar (supra) has decided in favour of the petitioner but the attention of the Division Bench was not drawn towards the earlier opinion expressed in the case of Jai Prakash Choudhary (supra) or Vishal Kumar (supra). Nonetheless as the matter stands, there are two divergent opinion on records interpreting the same very circular of the State Government disentitling an applicant to a Patna High Court CWJC No.17143 of 2016 (5) dt.16-03-2017 6/6 compassionate appointment on grounds that his siblings is in Government service.
In view of the conflicting opinion expressed by the two Division Bench of this Court on the same issue as raised and contested herein, I deem it proper to refer the matters before the Division Bench for an authoritative pronouncement on the issue.
Let records of the proceedings of the present two writ petitions be placed before the Hon'ble the Chief Justice for its placement before an appropriate Division Bench.
Learned counsel for the petitioners as well as the learned counsel for the respondents would be well advised to file an extra copy of the pleadings for consideration by the second Member forming the Division Bench.
Learned counsel for the petitioners would be at liberty to file rejoinders in the meanwhile.
The parties would be at liberty to make a motion for early hearing.
(Jyoti Saran, J) Bibhash/-
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