Patna High Court
Ashish Kumar Gupta vs The State Of Bihar & Ors on 17 August, 2018
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4786 of 2016
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Ashish Kumar Gupta, S/o Late Shyam Kishor Gupta, resident of Mohalla- R.S.
Tank Nautaliya, P.S.- Laheriasarai, District- Darbhanga.
.... .... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary, General Administrative
Department, Govt. of Bihar, Patna.
2. The District Magistrate, Darbhanga.
3. The Deputy Collector, Establishment Section, Darbhanga.
4. The Chief Secretary, Govt. of Bihar.
.... .... Respondent/s
With
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Civil Writ Jurisdiction Case No. 4965 of 2016
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Rahul Modak, Son of Late Ashok Modak, resident of Village and P.O.- Agradwip,
P.S. Katwa, District- Burdwan.
.... .... Petitioner/s
Versus
1. The State of Bihar.
2. The Chief Secretary, Government of Bihar, Patna.
3. The Secretary, General Administration Department Government of Bihar,
Patna.
4. The Additional Secretary, Home (Police) Department, Government of Bihar,
Patna.
5. The Director General of Police cum Inspector General of Police, Home (Police)
Department Government of Bihar, Patna.
6. Inspector General of Police, Welfare, Home (Police) Department Government
of Bihar, Patna.
7. Assistant to the Inspector General of Police (Q), Office of the Director General
of Police, Home (Police) Department Government of Bihar, Patna.
8. Assistant to the Inspector General of Police (Welfare), Bihar, Patna.
9. Additional Superintendent of Police, Transport Headquarter, office of the
Inspector General of Police, Home (Police) Department, Government of Bihar,
Patna.
10. Deputy Superintendent of Police, Transport Headquarter, office of the Inspector
General of Police, Home (Police) Department, Government of Bihar, Patna.
.... .... Respondent/s
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Appearance :
(In CWJC No.4786 of 2016)
For the Petitioner/s : Mr. Arun Kumar Jha, Adv.
Mr. Lalit Narayan Jha, Adv.
For the Respondent/s : Mr. Manish Kumar, AC to AAG-6
(In CWJC No.4965 of 2016)
For the Petitioner/s : Mr. Arun Kumar
For the Respondent/s : Mr. Sudhir Kumar Upadhyay, AC to GP-8
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
C.A.V. JUDGMENT
Date: 18-08-2018
Patna High Court CWJC No.4786 of 2016 dt.18-08-2018 2
Since the cause of action in each of the two writ petitions is
the same that the two writ petitions have been heard analogous and
are being disposed of by a common judgment.
With the consent of the parties the writ petitions have been
heard with a view to its final disposal at the stage of admission itself.
CWJC No.4786 of 2016 was initially filed for a direction to
the respondents to appoint the petitioner on a suitable post on
compassionate ground. While the writ petition was pending
consideration that the case of the petitioner was considered by the
District Compassionate Committee chaired by the District
Magistrate, Darbhanga in the meeting held on 21.1.2015 but was
rejected, inter alia, in reference to the circular of the Department of
Personnel and Administrative Reforms bearing No.2822 dated
27.04.1995which prescribes a statutory period of five years for filing such application and since the application of the petitioner was filed thereafter that the Committee has rejected the claim which is impugned at Annexure 10 to I.A. No.3590 of 2016. Since the decision is in connection with the prayer made in the writ petition that the prayer to question the same is allowed and consequentially I.A. No.3590 of 2016 is allowed.
CWJC No.4965 of 2016 is filed for quashing on production of, the resolution dated 6.3.2012 (incorrectly typed as 3.6.2012) of the Central Compassionate Committee, General Administration Patna High Court CWJC No.4786 of 2016 dt.18-08-2018 3 Department, whereby in reference to the same circular dated 27.4.1995, the claim of the petitioner has been rejected by the Committee as communicated through letter dated 4.6.2012 of the Inspector General of Police, Bihar, Patna impugned at Annexure 8 to the writ petition. The minutes of the meeting has been placed on record by the respondents vide Annexure „B‟ to the counter affidavit filed in the proceedings.
The facts of the case in each of the two writ petitions are almost identical. In fact even the rejection order(s) is resting on the same ground i.e. belated filing of the application(s) by these petitioners for compassionate appointment.
Facts of the case:
In so far as the petitioner in CWJC No.4786 of 2016 is concerned, the father of the petitioner while serving as a Clerk in Darbhanga Collectorate died on 25.8.1996 when the petitioner was aged barely one year with his date of birth recorded as 25.7.1995.
The mother of the petitioner was provided with a compassionate appointment on the death of the father of the petitioner but even she deceased on 8.4.2002 when the petitioner was barely seven years of age. Having lost both the parents yet the petitioner could not apply for compassionate appointment because he was a minor aged seven years. On attaining majority that the petitioner applied for compassionate appointment on 5.2.2015 vide Annexure 4 which was Patna High Court CWJC No.4786 of 2016 dt.18-08-2018 4 forwarded to the Deputy Collector, Establishment, Darbhanga vide Annexure 5 but has been rejected by the resolution passed on 21.1.2015, inter alia, on grounds that the application was filed belatedly and after expiry of five years, the period stipulated in the circular of the Personnel and Administrative Department dated 27.4.1995. Feeling aggrieved the petitioner is before this Court.
An equally unfortunate sequence of events accompanies the second writ petition i.e. CWJC No.4965 of 2016. The father of the petitioner Rahul Modak was a Class IV employee in the respondent Home (Police) Department, who died in harness on 5.12.2004. The date of birth of the petitioner is 5.2.1992 and thus he was aged about 12 years on the date of death of his father. The mother of the petitioner had pre-deceased the father as stated by him at paragraph 14 of the writ petition. It is on attaining majority that the petitioner applied for compassionate appointment which has been rejected by the Central Compassionate Committee vide its resolution passed on 6.3.2012 enclosed at Annexure „B‟ to the counter affidavit where the name of the petitioner appears at serial no.4 and the ground assigned is that the application was filed beyond the period stipulated in the circular dated 27.4.1995 of the Department of Personnel and Administrative Reforms and thus was time barred.
Annexure „A‟ to the counter affidavit is a resolution of the Departmental Compassionate Committee dated 21.6.2005 which Patna High Court CWJC No.4786 of 2016 dt.18-08-2018 5 indicates that the application of the petitioner for compassionate appointment as a Bal Aarakshi was considered by the Committee on 20.6.2005 but was rejected on grounds that the dependants of a Peon, were not entitled to such appointment. It is feeling aggrieved by the said orders that the petitioner has moved this Court.
I have heard learned counsel for the parties and I have perused the records.
The facts are not in dispute and there is no contest that both the petitioners were minor when their parents left for heavenly abode. While petitioner Ashish Kumar Gupta, is the only son of his parent, the petitioner Rahul Modak has a younger sister to look after. The petitioner Rahul Modak filed his application for appointment as a Bal Aarakshi soon after the death of his father in the year 2005 which application was also considered by the Compassionate Committee on 20.6.2005 but was rejected vide resolution placed at Annexure „A‟ to the counter affidavit filed in CWJC No.4965 of 2016, inter alia, on grounds that dependants of a Peon were not entitled to appointment as a Bal Aarakshi. It is thus on attaining majority that both the petitioners filed their respective applications and which have been rejected by the orders impugned in the respective writ petitions on grounds of delay.
It is bearing note of the extremely unfortunate situation faced by these minor children of deceased Government servants who Patna High Court CWJC No.4786 of 2016 dt.18-08-2018 6 were left to fend for themselves at a tender age of life that this Court vide order passed on 13.3.2018 in CWJC No.4786 of 2016 while allowing the arraignment of the Chief Secretary, Bihar to be added as party respondent posed few queries before the respondents which reads under:
(a) What is the guidelines of the State in circumstances of such kind where the children of a Government servant are left orphaned, to find for themselves when they are yet minors.
(b) What is the scheme of Bal Aarkshi under the Home (Police) Department and if such a scheme of compassionate appointment is present in the case of uniformed service, why it cannot be extended to those on civil duty.
(c) Since both the parents of this petitioner died in harness, what post retiral/ terminal benefits accrued to the legal heirs and whether it has been paid.
(d) Even though the legal position is well settled that a compassionate appointment cannot be claimed luxuriously after a long lapse of five years but whether that would apply to a case where there was none to claim such appointment after the mother of the petitioner, who was provided with compassionate appointment also deceased within six years of the death of her husband leaving the petitioner at a tender age of seven years.
It is answering the queries so made by this Court that affidavits have been filed in each of the two writ petitions and there is a justification given by the respondent-State for non-consideration of the claim of these petitioners on each of the counts. It is explained that in cases of such kind where children are left minor by the death of the bread earner, apart from other terminal benefits the dependant minor children are entitled to draw family pension which is payable Patna High Court CWJC No.4786 of 2016 dt.18-08-2018 7 in case of son until he attains the age of 25 years and in case of a daughter until she gets married. It is thus sought to be explained in reference to various schemes that the State takes care of the children till they attain majority and are in a position to look after themselves.
In reference to the circular of the Department of Personnel and Administrative Reforms dated 19.5.1992, at Annexure „E‟ to the supplementary counter affidavit filed in CWJC No.4786 of 2016, it is informed that the issue of providing compassionate appointment to minor children of deceased Government employees on their attaining majority was considered by the State Government but the proposal was rejected.
In reference to the circular dated 27.4.1995 at Annexure „F‟ to the same affidavit, it is informed that since the period stipulated for filing such application is five years and since admittedly in the present case(s) applications have been filed beyond five years, they have rightly been rejected by the impugned orders.
Having considered the status of the matters in the backdrop of the circular in force, definitely there is no error in the decision- making process nor in the decision so taken by the respective compassionate committees in holding the claim time barred.
The issue of compassionate appointment has been a subject matter of many a judgment and it is now well settled that there is no legal right vested for such appointment and though such right does Patna High Court CWJC No.4786 of 2016 dt.18-08-2018 8 flow from the schemes, if any, framed by the State or the authority concerned as the case may be, but none can claim it as a vested right. A compassionate appointment by its very nomenclature is an exception to the general rule of recruitment and the schemes so framed is founded on the idea of helping the family left in distress by the sudden loss of the bread earner, to tide over the crisis and are not left in penury. The object is laudable and even though such forms of appointment are an exception to the general rule, where any scheme is in force, an aggrieved is entitled to seek a consideration under the same.
Two judgments of the Supreme Court and a judgment of the Division Bench of this Court, do come very near in answering the claim raised by these petitioners in their favour but with slight distinction.
In one of the cases put for such consideration reported in (2005)7 SCC 206 (Commissioner of Public Instructions vs. K.R. Vishwanath), the scheme of compassionate appointment itself conceived for consideration of a case of minor for compassionate appointment on his attaining majority, as present in the proviso to Rule 5 of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996, which specifically provides that in case of a minor, the application for such appointment is to be made within a period of one year of attaining majority. Rule 5 of Patna High Court CWJC No.4786 of 2016 dt.18-08-2018 9 Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 reads under:
"5. Every dependant of a deceased government servant, seeking appointment under these Rules shall make an application within one year from the date of death of the government servant, in such form, as many be notified by the Government, from time to time, to the Head of the Department under whom the deceased government servant was working. Provided that in the case of a minor, application shall be made within a period of one year after attaining majority."
(Emphasis Added) In another judgment reported in (2012) 7 SCC 248 Shreejith L. Vs. Deputy Director of Education), a similar issue put for consideration, is dealt in paragraphs 14 to 19 of the judgment but it is noting the delayed action by the applicant in applying for such appointment, 12 years after attaining majority, that the plea was rejected.
The Supreme Court in a judgment reported in (2006)5 SCC 766 (State of J.&K. vs. Sajad Ahmed Mir) has explained that such appointments are exceptions to the general rule of appointment and the object of such appointment is to enable the family to get over the sudden financial crisis. It should thus be made immediately and in case it is not claimed within a reasonable time and the family survives and substantial period is over then there is no necessity to part with the normal rule of appointment and to show favour to any one at the cost of several others.
Patna High Court CWJC No.4786 of 2016 dt.18-08-2018 10 No doubt, learned counsel appearing for the petitioners have understandably relied upon a Division Bench pronouncement of this Court reported in 2007 (1) PLJR 672 (Kamlanand Jha vs. The State of Bihar) to espouse the cause raised in the writ petitions but the facts of the said case would confirm that while the application of the petitioner was filed within the stipulated period of five years of the death of the government employee, since he had not attained majority and was aged 17 years and 8 months that he was denied appointment and subsequently rejected on grounds of expiry of the period of five years. The Division Bench found the decision hyper technical because the application was filed within time and the applicant was aged 17 years and 8 months i.e. nearing majority.
The case in hand is quite distinct from the case of Kamlanand Jha (supra) inasmuch as in the present set of cases, the petitioner Ashish Kumar Gupta was aged 7 years when his both parents died and the petitioner Rahul Modak was aged 12 years on the date of death of his father with his mother pre-deceasing his father. There cannot be any dispute that a compassionate appointment cannot be claimed after long lapse of time and considering the affidavit of the State in each of the two writ petitions whereby they have informed about the pensionary and other terminal benefits accorded to the two petitioners after the death of bread earner which would extend until the son reaches 25 years of age and Patna High Court CWJC No.4786 of 2016 dt.18-08-2018 11 the daughter until she gets married, I am satisfied that due care has been taken by the State to protect the interest of the minor children.
In the aforesaid view of the matter, no error can be found in the decisions impugned in the two writ petitions. However, while upholding such decision, this Court would definitely ask the State to again address itself on the issue for bringing about appropriate amendment in the Rules governing the scheme of compassionate appointment especially where children of government employees are orphaned at a very tender age. In fact, it is perhaps catering to such situation that the scheme originally framed on 5.10.1991 did not stipulate any period for such application, which has been introduced vide amendment on 27.4.1995.
Considering that the claim of compassionate appointment is more in the nature of a social welfare measure, the respondent State through the Chief Secretary, the Social Welfare Department and the General Administration Department may well ponder over the necessity of appropriate amendment in the Rules governing the compassionate appointment for protecting the interest of minor dependants on the lines of the stipulation present in Rule 5 of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 which while prescribing a limitation period for filing such application by adult dependants, also regulates the case of present kind where the minor children of government employees are Patna High Court CWJC No.4786 of 2016 dt.18-08-2018 12 left to face the world by the death of the parents at an early age.
However, the orders impugned not suffering any legal or procedural infirmity in the light of the discussion above, the writ petitions are accordingly disposed of. No order as to costs.
(Jyoti Saran, J) SKPathak/-
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