Patna High Court
Sandip Chauhan vs The State Of Bihar & Ors on 2 May, 2018
Author: Rajeev Ranjan Prasad
Bench: Chief Justice, Ravi Ranjan, Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.17143 of 2016
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Niraj Kumar Mallick, S/o Late Ashok Kumar Mallick, R/o At- 12 Patthar, Ward
No. 15, P.S.- Samastipur Town, Distt- Samastipur.
.... .... Petitioner/s
Versus
1. The State of Bihar through Secretary, Rural Works Department, Government of
Bihar, Patna.
2. District Magistrate, Sitamarhi.
3. Chief- Engineer- 2, Rural Work Department, Bihar.
4. Executive Engineer, Rural Work Department, Sitamarhi.
.... .... Respondent/s
with
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Civil Writ Jurisdiction Case No. 19713 of 2016
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Sandip Chauhan, son of Late Ashok Kumar Singh, resident of village and P.O. Enai
(Dakshin Patti), P.S. Rivilganj, District - Saran (Chapra).
.... .... Petitioner/s
Versus
1. The State of Bihar through the Secretary, Department of Home, Govt. of Bihar,
Patna.
2. The Principal Secretary, General Administration Department, Govt. of Bihar,
Patna.
3. The Chairman, District Compassionate Committee-cum-Collector, Darbhanga.
4. The D.D.C. Darbhanga.
5. The Senior Superintendent of Police, Darbhanga.
6. The Dy. Collector (Estb.), Darbhanga.
7. The District Welfare Officer, Darbhanga.
8. The Circle Officer, Rivilganj, Saran, Chapra.
.... .... Respondent/s
with
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Letters Patent Appeal No. 1852 of 2016
IN
Civil Writ Jurisdiction Case No. 10236 of 2013
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Vijay Kumar, Son of Late Parshuram Singh, Resident of Village- Balhan, Post-
Amnaur, P.S.- Amnaur, District- Saran at Chhapra.
.... .... Appellant/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Department of Home, Government of Bihar, Old
Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018
2/44
Secretariat, Patna.
3. The Principal Secretary, General Administrative Department, Government of
Bihar, Patna.
4. The Director General of Police, Bihar Old Secretariat, Patna.
5. The Joint Secretary, General Administration Department, Government of Bihar,
Patna.
6. The Inspector General of Police (Welfare), Bihar, Patna.
7. The Assistant Inspector General of Police (Welfare), Bihar, Patna.
8. The Superintendent of Police (A) Special Branch, Bihar, Patna.
.... .... Respondent/s
===========================================================
Appearance :
(In CWJC No.17143 of 2016)
For the Petitioner/s : Mr. Harsh Singh, Adv.
Mr. Tej Pratap Singh, Adv.
Mr.Ravi Shankar Choudhary, Adv.
For the State : Mr. Pushkar Narain Shahi, AAG-6
Mr. Manish Kumar, AC to AAG-6
(In CWJC No.19713 of 2016)
For the Petitioner/s : Mr. Santosh Kumar Singh
For the Respondent/s : Mr. Md. N.H. Khan, SC-1
(In LPA No.1852 of 2016)
For the Appellant/s : Mr. Yugal Kishore, Sr.Adv.
Mr. Sanjay Kumar, Adv.
Mr.Virendra Prasad, Adv.
For the Respondent/s : Mr. Prabhakar Jha, GP-27
===========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE DR. JUSTICE RAVI RANJAN
and
HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date: 02-05-2018
Judges apply prior case law in the absence of Statute or
create legal doctrines where the law is silent on a given set of facts.
A common issue of law in similar set of facts has arisen
for consideration in all these Writ Applications and the Letters Patent
Appeal which have been clubbed together for consideration by the
Full Bench. It relates to interpreting the policy decision of the State
Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018
3/44
government in the matter of compassionate appointment under the
scheme framed by the government whereunder guidelines and
procedures for appointment to the dependents of a government servant
dying in harness has been provided. Two different views expressed by
the Hon‟ble Division Bench of this Court have necessitated this
reference.
2. The facts of the case briefly stated in these cases are as
under:-
3. The writ-petitioner(s) happened to be the children of
the deceased government servant, who died in harness, they applied
for appointment on compassionate ground but their respective claims
have been rejected by the respondents on the ground that their siblings
are in government employment or are otherwise in service. The
competent authorities of the State while considering their claim for
appointment has rejected the same in the light of a clarification issued
by the General Administration Department bearing no.15783 dated
19.11.2014issued under the signature of the Additional Secretary to the Government, General Administration Department, Government of Bihar. In the present batch of cases we are concerned with only Clause (d) of the clarification, therefore the whole consideration would centre around Clause (d) alone.
4. The clarification is addressed to all the District Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 4/44 Officers who were seeking guidelines while considering the application of those dependents of the deceased government servants who were seeking compassionate appointment even though the other children of the deceased government servant were duly employed. The clarification so issued by the General Administration Department is placed at Annexure-„A‟ to the counter affidavit filed on behalf of the respondent no.2 in CWJC No.17143/16. In order to appreciate the terms and spirit of the clarification as contained in Clause (d) to Annexure-A to the counter affidavit it would be apt to reproduce the same itself hereinbelow:-
izs"kd] ds"ko dqekj flag] ljdkj ds vij lfpoA lsok es]a ftyk inkf/kdkjh] oS"kkyhA ftyk inkf/kdkjh] iw0 pEikj.k] ekfrgkjhA ftyk inkf/kdkjh] lqi kSyA ftyk inkf/kdkjh] x;kA iVuk& 15] fnuka d & --------uoEcj ] 2014 fo'k; %& vuqdEik fu;q fDr ds izla x esa ;kfpr ekxZn"kZuA izlax %& ftyk inkf/kdkjh oS"kkyh dk i=ka d 646 fnukad & 30-07-2014 ,oa i=kad 647 fnukad & 30-07-2014 ftyk inkf/kdkjh] iwohZ pEikj.k] eks frgkjh dk i=ka d 183 fnukad 17-09-2014 ftyk inkf/kdkjh] lqi kSy dk i=kad 1148 & 2@ LFkk0 fnukad 10-09-2014 ftyk inkf/kdkjh] x;k dk i=kad XXI-1@14&1378 fnukad 06-08-2014 egk"k;] mi;qZDr fo'k;d izla xk/khu i=ksa ds rgr ;kfpr ekxZn"kZu fuEukuq lkj nsus dk funs"k fn;k x;k gS %& ftKklk ekxZn"kZu ¼d½ e`r ljdkjh dehZ ds vkfJrksa esa ls lkekU; iz" kklu foHkkx ls fuxZr i=ka d & 1781 fdlh ds fu;ksftr jgus dh fLFkfr esa fnukad 10-05-2010 ds rgr ifjpkfjr ekuuh; vU; vkfJrksa esa ls fdlh dks vuqdEik iVuk mPp U;k;ky; }kjk lh0MCyw0ts0lh la& fu;qfDr dk ykHk fn;k tk ldrk gS 6668 @2003 rFkk lh0MCyw0ts0 lh la& vFkok ugh \ 7044@2003 esa ikfjr lesfdr vkns" k] fnuka d 27&07&2004 ds vkyks d esa lsokdky esa e`r ljdkjh dehZ ds vkfJrksa esa ls fdlh ds gainfully fu;ksftr gksus dh fLFkfr esa mlds vU; vkfJrksa ds lkFk jgus vU;Fkk ugha jgus ds Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 5/44 okotwn vU; vkfJrksa esa ls fdlh dks vuqdEik fu;afq Dr dk ykHk vuqekU; ugh gSA Gainfully fu;ksf tr jgus ls rkRi;Z ,sls fu;kstu ls gS ftlesa e`r ljdkjh lsodks a ds vkfJrksa dk Hkj.k iks'k.k gks ldsA ¼[k½ ykirk ljdkjh lso dksa ds vkfJrksa Ykkirk ljdkjh lsodksa ds vkfJrksa dks vuq dEik dh vuqdEik fu;qfDr ds la ca/k esAa ds vk/kkj ij fu;qfDr dh vuqekU;rk bl foHkkx ls fuxZr ifji= la[;k & 7146] fnukad 31-10- 2008 ds rgr dh xbZ gSA ¼x½ v'Ve~ mÙkh.kZ egknfyr ljdkjh lsokdky esa e`r Ekgknfyr ljdkjh lso dksa ds lsodksa ds vkfJrksa dks vuqdEik ds vkfJrksa dh "kS{kf.kd ;ksX;rk ds laca /k esa fu.kZ; vk/kkj ij fu;q fDr dh vuq"kal k dh tk bl foHkkx ls fuxZr ifji= la[;k &10073] ldrh gS vFkok ugh \ fnukad 18-12-2008- ds vkyksd esa fy;k tkuk gSA ¼?k½ usiky }kjk fuxZr "kS{ kf.kd ;ksX;rk usikyh ukxfjd dks ljdkjh lso k esa fu;q fDr dh ,oa vU; izek.k i= rFkk usikyh ukxfjd vuqekU;rk fu;qfDr foHkkx ¼lEizfr lkekU; dks vuqd Eik fu;q fDr dk ykHk fn;s tkus iz"kklu foHkkx½ ls fuxZr ifji= la[;k 7312] ds laca/ k esAa fnukad 30-05-1966 dh da fMdk 03 ds vkyksd esa dh xbZ gSA usiky }kjk fuxZr "kS{ kf.kd ,oa vU; izek.ki=ksa dk lR;kiu usiky ds la caf/kr laLFkkvksa ls rFkk usiky }kjk fuxZr "kS{kf.kd izek.ki=ksa dh vuqekU;rk dh lEiqf'V f"k{kk foHkkx] fcgkj ] iVuk ls iz kIr dh tk ldrh gSA ¼M+½ vuqdEik ds vk/kkj ij pkSdhnkj@nQknkj dk in lewg „?k‟ dk in gS pkSdhnkj@nQknkj ds in ij fu;qfDr vr% mudh "kS{kf.kd ;ksX;rk ds laca /k esa fu.kZ; gsrq "kS{kf.kd ;ksX;rk ds laca/ k esa A fcgkj lewg „?k‟ ¼HkÙkhZ ,oa lsok "krZ½ la"kks/ ku fu;ekoyh &2012 ds vkyksd esa fy;k tkuk gS A pwf¡ d] pkSdhnkj @ nQknkj dk iz" kklh foHkkx x`g ¼vkj{kh½ foHkkx gS] vr% bl lac /k esa ekxZn"kZu mDr foHkkx ls iz kIr dh ldrh gSA uksV %& lkekU; iz" kklu foHkkx ls fuxZr lHkh lad Yiksa @ ifji=ksa @ vuqns" kksa dh iz fr;k¡ bl foHkkx ds csolkbV ls iz kIr dh tk ldrh gSA fo"oklHkktu g0@& ¼ds"ko dqekj flag½ ljdkj ds vij lfpo Kkika d %& 22@vuq 0&05@2014 lk0 iz0 15783@iVuk&15 fnukad 19-11-14 Ikzfrfyfi %& ljdkj ds lHkh foHkkx @ foHkkxk/;{k@ izeaMyh; vk;qDr] ftyk inkf/kdkjh dks lwpuk ,oa vko";d dkjbZo kbZ gsrq izsf'krA
5. As is apparent from perusal of Annexure-A, the clarification has been sought to be issued in the light of the judgments of this Hon‟ble Court rendered in CWJC No.6668 of 2003 (Mahabir Paswan Vs. the State of Bihar & Ors.) and CWJC No.7044 of 2003 (Jay Prakash Choudhary Vs. the State of Bihar and Ors.) reported in 2004(4) PLJR (HC) 121 which were heard and decided together Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 6/44 vide judgment dated 27.07.2004. According to the clarification in case of any of the dependents of a government servant being gainfully employed, whether they are living with the other dependents or not, the other dependents shall not be entitled for the benefit of appointment on compassionate ground. It further says that 'gainfully employed‟ means such employment from which the dependents of the deceased government servant may be maintained or in other words they can get their sustenance.
C.W.J.C. No.17143 of 2016
6. Based on this clarification of the General Administration Department when the writ-petitioner applied for appointment on compassionate ground, the appointment was denied vide memo no.205 dated 10th March, 2016 enclosed as Annexure-„8‟ to the writ application being CWJC No.17143 of 2016. A perusal of Annexure-„8‟ to the writ application would show that the case of the petitioner for appointment on compassionate ground was rejected because in course of consideration of his application it was found that his two brothers namely Navin Kumar Mallick and Sikandar Kumar Mallick were employed in Railway Service as Loco Pilot and in the Navy Service respectively.
CWJC No.19713 of 2016
7. In CWJC No.19713 of 2016 the claim of the petitioner for appointment on compassionate ground has been refused by the Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 7/44 District Compassionate Appointment Committee in its meeting held on 22.09.2016 under the Chairmanship of the District Magistrate, Darbhanga on the ground that out of the three sons of the deceased government employee, two of them are in service whereas the applicant being the third son was seeking appointment on compassionate ground. He relied upon the judgment dated 14.02.2003 passed in CWJC No11487/02 (Kaushlendra Kumar Vs. the State of Bihar and ors.) whereunder the claim of the petitioner when was rejected on the ground that his elder brother was already gainfully employed, this Court directed the State to get the matter enquired into by the functionary of the State to come to its own conclusion regarding as to whether a partition was there or not and if the elder brother had separated whether he had separated before the death of the father and also as to whether the financial position of the family was such that the widow and the minor could be taken care of. Subsequently, the Court found that no such report was brought on the record but only fact pleaded was that the District Compassionate Appointment Committee has to be satisfied as to the financial status of the family and then it was contended that the petitioner‟s case was considered but rejected by the District Compassionate Committee on the ground that the elder son was gainfully employed. In the facts of the said case, the learned Single Judge of this Court, however, found Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 8/44 that an enquiry was held by the Circle Officer who had verified and submitted a report in favour of the petitioner stating therein that there was a partition, elder brother was living separately and the financial position of the family was not such as to take care of the widow. In the given facts of the case the order passed by the District Compassionate Committee was quashed and they were directed to consider the matter afresh after taking into consideration the report of the Circle Officer.
L.P.A. No.1852 of 2016
8. In LPA No.1852 of 2016 which arises out of a judgment dated 22.08.2016 passed by a learned Single Judge of this Court in CWJC No.10236 of 2013 claim of the petitioner for appointment on compassionate ground was rejected on the ground that two brothers of the petitioners are in employment. Father of the petitioner in the said case was an Assistant Sub-Inspector, Special Branch of Bihar Police in Siwan District who died in harness leaving behind five sons and his wife. The petitioner had applied for appointment on compassionate ground with affidavit of "No Objection" from his rest brothers, the elder brother was in employment in Central Government Services and the second brother of the petitioner was employed in a private company. He relied upon the case of one Mukesh Kumar who was given the benefit of compassionate appointment even as his elder brother was employed in Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 9/44 government service. He relied upon some more judgments of this Court including one in the case of Santosh Kumar Vs. the State of Bihar and Ors. reported in 2013(1) PLJR 454 to submit that the petitioner should be given the benefit of compassionate appointment. On behalf of the State, the claim of the petitioner was opposed by relying upon the judgment of this Court in the case of Vishal Kumar Vs. The State of Bihar & Ors. reported in 2004(2) PLJR 453 and in the case of Ashok Kumar Choudhary Vs. the State of Bihar & Ors. reported in 2004(4) PLJR 651. The State contended that the petitioner would not be entitled for employment on compassionate ground because two of his elder brothers were gainfully employed. Learned Writ Court relied upon the judgment of the Hon‟ble Supreme Court in the case of Umesh Kumar Nagpal Vs. State of Haryana and Ors. reported in (1994) 4 SCC 138 as also the judgment of this Court in the case of Ashok Kumar Choudhary Vs. the State of Bihar & Ors. reported in 2004(4) PLJR 651 and another judgment of this Court in the case of Vishal Kumar Vs. The State of Bihar & Ors. reported in 2004(2) PLJR 453 and having discussed all the judicial pronouncement on the subject and finding that two brothers of the petitioner were employed, in view of consistent view taken in a catena of decisions that the compassionate appointment cannot be a source of employment, rather it is a scheme for the family to mitigate Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 10/44 the financial distress in the event of sudden death of bread-earner, the learned Writ Court rejected the writ application leading to filing of the Letters Patent Appeal.
9. In the aforementioned background of the facts the learned Writ Court in CWJC No.17143 of 2016 noticed that different Division Benches of this Court have come out with divergence of views on the issue in question. It was noticed that the learned Writ Court in the case of Mahabir Paswan (supra) and Jay Prakash Choudhary (supra) while placing reliance upon the Division Bench judgment of this Court in the case of Vishal Kumar (supra) held in paragraph „8‟ as under:
"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 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 Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 11/44 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."
10. The aforesaid view taken by the learned Writ Court was challenged before a Division Bench in LPA No.777 of 2004, but the Letters Patent Appeal was dismissed vide judgment and order passed on 16.08.2004 while observing as under:-
"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 mother, in case of their death in harness, his/her ward has a right to get appointment. Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 12/44 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."
11. It is the aforesaid view of this Court taken in the case of Mahabir Paswan (supra) and Jai Prakash Choudhary (supra) and affirmed by the Division Bench, became the foundation of the opinion expressed by the General Administration Department by way of clarification provided vide Clause (d) in Annexure-A to the counter affidavit.
12. The difficulty arose only when in order to meet the challenge the petitioner(s) relied upon another Division Bench judgment in the case of Anil Kumar Vs. the State of Bihar & ors. reported in 2007(4) PLJR 511. This time the Division Bench taking note of same stand taken by the State to disentitle the petitioner of the said case decided in favour of the petitioner in the following words:
"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 Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 13/44 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 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 Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 14/44 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."
13. When by virtue of the order passed by the learned writ Court in CWJC No.17143 of 2016 the matter was placed before the Hon‟ble Division Bench, taking note of the divergence of views, vide order dated 22.11.2017, the Hon‟ble Division Bench thought it just and proper to resolve the issue by a Larger Bench of at least three Judges. This is how the Larger Bench of three Judges have been entrusted with this responsibility to resolve the issue of law in the light of factual aspects discussed hereinabove.
SUBMISSIONS OF THE PETITIONERS/APPELLANT
14. We have heard Mr. Harsh Singh, learned advocate, assisted by Mr. Tej Pratap Singh and Mr. Ravi Shankar Choiudhary on behalf of the petitioner in CWJC No.17143 of 2016 and Mr. Pushkar Narayan Shahi, learned A.A.G.-VI on behalf of the State. Mr. Santosh Kumar Singh, learned advocate has represented the writ Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 15/44 petitioner in CWJC No.19713 of 2016 and Mr. N.H. Khan, SC-I has appeared for the State. Similarly, Mr. Yugal Kishore has represented the appellant in LPA No.1852 of 2016 and on behalf of the State leanred GP-27 Mr. Prabhakar Jha has assisted the Court.
15. Learned counsel for the petitioner(s) and the appellant have strongly contended before us that even though appointment on compassionate ground is a kind of concession given to the dependents of a deceased government servant and the constitutional mandate does not permit the appointment through back door or preference on the ground of caste, creed or being a dependant of the government employee, the scheme for appointment on compassionate ground has been provided keeping in mind that Article 14 of the Constitution of India does not prohibit classification based on reasonable differentia.
16. It is submitted that in a catena of decisions of the Hon‟ble Apex Court as well as this Hon‟ble Court it has been held that any appointment on compassionate ground has to be considered in terms of the policy and the scheme regulating the same and where policy provided for consideration of the claim of a second son despite the fact that elder son was in employment. This is, however subject to satisfying the conditions that the dependents of a deceased government servant is/are in the state of destitution and penury either Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 16/44 because the employed brother was not looking after the family or due to his insufficient earning from the employment, it is common submission that the claim for compassionate appointment cannot be rejected outrightly without going into the facts and circumstances of each and every case of such nature. It is submitted that touchstone for the exercise of power is therefore in such cases where dependents of deceased government servant is in employment would be the factual aspect of the matter as to whether the family has got any other source of survival or is left in a state of destitution. Learned counsel relies upon a Division Bench judgment of this Court in the case of Anil Kumar (supra) and Santosh Kumar (supra) and the views expressed by learned Writ Court in CWJC No.11487 (Kaushlendra Kumar Vs. the State of Bihar and Ors.).
17. On behalf of the appellant in LPA No.1852 of 2016 reliance has been placed on a judgment of the Hon‟ble Apex Court in the case of Canara Bank & Anr. (in 260) Chairman and Managing Director, Canara Bank & Ors. (in 266, 267) Vs. M. Mahesh Kumar (in 260) Santha and Anr. (in 266) A.K. Sheeba & Anr. (in
267) reported in 2015(3) PLJR (SC) 197 = (2015) 7 SCC 412 to submit that the Hon‟ble Apex Court has considered a question as to whether the dependant family members of the deceased employee of the appellant Bank were entitled to seek compassionate appointment Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 17/44 on the basis of „Dying in Harness Scheme‟. The claim was resisted by the Bank on the ground that the financial condition of the family members of the deceased employee is good and that the Scheme has been replaced with new scheme scrapping the provision of compassionate appointment and in lieu thereof introduced the new scheme of ex-gratia payment. It is the contention of the learned counsel representing the appellant that the Hon‟ble Apex Court having discussed a catena of judgments on the subject dismissed the appeal preferred by the Bank and Bank was directed to consider the case of the respondents for compassionate appointment as per the scheme which was in vogue at the time of death of the concerned employee.
18. Referring to Annexure-A to the counter affidavit, learned counsel for the petitioners and appellants submit that the General Administration Department of the Government of Bihar has come out with clarification purportedly in the light of the decisions of this Court in the case of Mahabir Paswan (supra) and Jai Prakash Chouhdary (supra), but a close perusal of the clarification offered by the government of Bihar would make it clear that on receipt of an application for appointment on compassionate ground by a dependent of a deceased government servant in harness even if it is found that other siblings of the applicant is gainfully employed, by virtue of the Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 18/44 fact that „gainful employment‟ in the context in which it has been used means an employment out of which the dependents of the deceased government servant may be able to get their sustenance/maintenance, the authority concerned would be required to get himself satisfied as to whether any one of the dependents of the deceased employee who is/are gainfully employed would be able to maintain the other dependents of the deceased government servant out of the resources made available to him from his employment.
19. Submission is that in the case of Anil Kumar (supra), a Division Bench of this Court having found that wife of the deceased government servant was living separately in her Maika took a correct view that it would hardly be a ground to deprive the writ petitioner therein appointment on compassionate ground on account of death of his father who died in harness.
20. Learned counsel further submits that on perusal of the judgment of this Court in the case of Mahabir Paswan (supra) and Jay Prakash Choudhary (supra) it would appear that the Writ Court was apprised of a circular of 1999 issued by the government wherein it was provided that unless an enquiry is made into these facts and a positive finding is recorded, the application could not be rejected simply on the ground that one of the successors of the deceased was gainfully employed, but it is the contention of the Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 19/44 learned counsel that Hon‟ble Writ Court in the case of Mahabir Paswan (supra) and Jay Prakash Choudhary (supra) went by the decision of the earlier Division Bench in the case of Vishal Kumar (supra). Referring to the Division Bench judgment in the case of Vishal Kumar (supra) learned counsel submits that the said judgment cannot be said to be a judgment on the issues in hand because in the facts of the said case one of the elder brother had been gainfully employed in the State Bank of India and what was submitted before the Hon‟ble Division Bench was that the elder brother and father were separate and because of that the appellant may be offered a job on the principle of compassionate appointment. The Hon‟ble Division Bench rejected this contention in the facts of the said case. It is thus submitted that the rejection of the application of the petitioner(s) in all these writ applications by merely stating that their other siblings are in employment is not in accordance with the spirit of the scheme for employment on compassionate ground and in any view of the matter in the light of the clarification offered vide Annexure-A to the counter affidavit the authorities are required to consider whether the other siblings who are in employment are in such a gainful employment from which they can take upon themselves the burden of maintaining the other dependents who have lost their father in harness.
SUBMISSIONS OF THE STATE RESPONDENTS
21. On the other hand learned AAG-VI assisted by other Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 20/44 learned State Law Officers would submit that in a catena of decisions the Hon‟ble Supreme Court has held that the object of granting compassionate appointment is not to provide a job to a member of the family of the deceased government servant. It is, according to him, a scheme framed by the government only to provide an immediate succor to the family in order to enable the family to tide over the sudden crisis. It is submitted that unfortunately over the period of time the gesture of the employer towards dependents in consideration of the services rendered by the deceased employee has in fact become akin to a right to inherit. Apart from the judgments of this Hon‟ble Court as have been referred above, we have also been reminded of a number of judgments of the Hon‟ble Apex Court on the subject, such as Life Insurance Corporation of India Vs. Mrs. Asha Ramchandra Ambedkar and Anr. reported in AIR 1994 Supreme Court 2148, Umesh Kumar Nagpal Vs. State of Haryana and others reported in (1994)4 SCC 138, S. Mohan Vs. Government of T.N. and Anr. reported in (1998) 9 SCC 485, Auditor General of India & Ors. Vs. G. Ananta Rajeswara Rao reported in (1994) 1 SCC 192, General Manager, State Bank of India & Ors. Vs. Anju Jain reported in (2008) 8 SCC 475, Panchi Devi Vs. State of Rajasthan & Ors. reported in (2009) 2 SCC 589 and the Steel Authority of India Ltd Vs. Madhusudan Das reported in (2008) 15 Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 21/44 SCC 560.
22. It is submitted on behalf of the State respondents that the clarification/guidelines as contained in Clause (d) of Annexure- „A‟ is in consonance with the judicial pronouncements of the Hon‟ble Apex Court as well as this Hon‟ble court. It is further submitted that the scheme of compassionate appointment must be interpreted in terms of the policy decision of the government and there is no room for sympathy while interpreting the said Clause (d) of Annexure-„A‟, it is to be kept in mind that compassionate appointment is not a source of recruitment and not based on principle of descent. It is submitted that if government has taken a conscious decision not to provide compassionate appointment to a dependent of deceased government employee when the other sibling of the applicant is in gainful employment from which he can provide sustenance to other dependants then no fault may be found in such policy decision. It is a matter of public employment which according to learned counsel cannot be provided to other dependents on the ground that his/her sibling is not willing to take care of others.
CONSIDERATION
23. Having heard learned counsel for the petitioner(s) and learned senior counsel as well other learned counsel representing the State, we find that the only issue which has fallen for consideration in all these cases is the contention of the petitioner(s) Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 22/44 that even though the fact that their other siblings are in employment is not dispute, their application for appointment on compassionate ground because of the death of the bread-earner of the family in harness cannot be rejected outrightly taking shelter under Clause (d) of the clarification issued vide Annexure-„A‟ to the counter affidavit filed in CWJC No.17143 of 2016, on the solitary ground that their other siblings are in service/employment. In other words what would be the scope and ambit of consideration in such cases in terms of the policy of the government as reflected in Clause (d) of Annexure-„A‟ quoted in the very beginning of this judgment has to be considered in the present cases.
SOME PRECEDENCE
24. In order to appreciate the rival contentions on the subject, we would remind ourselves once again with the views expressed by the Hon‟ble Apex Court in the matters of appointment on compassionate ground. In the case of Life Insurance Corporation of India Vs. Mrs. Asha Ramchandra Ambedkar (supra), in paragraph 10 and 11 the Hon‟ble Apex Court observed as under:-
"10. Of late, this Court is coming across many cases in which appointment on compassionate ground is directed by judicial authorities. Hence, we would like to lay down the law in this regard. The High Courts and the Administrative Tribunals cannot confer Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 23/44 benediction impelled by sympathetic consideration. No doubt Shakespeare said in Merchant of Venice:
"The quality of mercy is not strain'd; It droppeth, as the gentle rain from heaven Upon the place beneath it is twice bless'd, it blessth him that gives, and him that takes;"
11. These words will not apply to all situations. Yielding to instinct will tend to ignore the cold logic of law. It should be remembered "law is the embodiment of all wisdom". Justice according to law is a principle as old as the hills. The Courts are to administer law as they find it, however, inconvenient it may be."
25. In Umesh Kumar Nagpal (supra), the Hon‟ble Apex Court had occasion to consider the object of the compassionate appointment and the factors necessary for being taken into account before offering such appointment. The Hon‟ble Apex Court was of the view that:-
"As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 24/44 followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would to be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 25/44 being to relieve the family, of the financial destitution and to help it get over the emergency............".
26. In paragraph „3‟ of the said judgment, the Hon‟ble Apex Court deprecated the government and public authorities to be totally unmindful of this legal position and have been offering the compassionate appointment sometimes as a matter of course irrespective of the financial condition of the family of the deceased and sometimes even in posts above Classes III and IV, which is legally impermissible.
27. In the case of S.Mohan (supra), the facts were more or less the same as have fallen for consideration in these cases. In the said case the mother of the appellant had died in harness after more than twenty years of service as a teacher in the municipal school. At the time of her death, out of her three sons including the appellant, two were employed. The terminal benefits received by the family on the death of the mother was not mentioned. However, it was found that father of the appellant, at the time of the death of the mother, was receiving a small pension of less than Rs.300 per month. Ten years and eight months thereafter on 6.9.1984 the appellant son was appointed by the respondents in a leave vacancy for a period of three months on compassionate ground. His services were terminated on Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 26/44 12.12.1984. Thereafter the appellant on 12.08.1985 submitted full particulars regarding the family of his deceased mother, the status of the two brothers and their income and also particulars regarding the income of the father. On 19.10.1987, he was appointed as Junior Assistant in the Municipality on compassionate grounds. The appellant, accordingly, joined duty. The appellant‟s service was terminated under an order dated 3.1.1990 on the ground that his appointment was not ratified by the concerned department and he was requested to hand over the charge.
28. In the aforesaid circumstances, the Hon‟ble Supreme Court considered the question as to whether in the facts and circumstances set out, could the appointment of the appellant have been made on compassionate grounds after lapse of ten years after the date of death of his mother and further the circumstances justify the appointment of the appellant on compassionate grounds. Considering the object behind the appointment on compassionate ground and taking into consideration that two sons of the deceased were already employed, it was held that the government had rightly refused to give him appointment. So far as the second issue framed by the Apex Court in the case of S. Mohan (supra) is concerned, the same is identical to the issue which has fallen for consideration in the present case.
Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 27/44
29. In the case of Anju Jain (supra), the Hon‟ble Supreme Court upheld the policy decision of the State Bank of India as regards giving employment on compassionate ground to a dependent of the deceased employee whereunder in case of an employee who had been charge-sheeted and having committed gross embezzlement/misappropriation a departmental enquiry was instituted against him wherein he was found guilty, the claim of his dependent for compassionate appointment was rejected. The dependent moved the Hon‟ble High Court by invoking Article 226 of the Constitution of India and the learned Single Judge of the High Court referring the scheme of giving appointment on compassionate ground allowed the petition and held that the writ petitioner was entitled to the benefits of the appointment on compassionate ground. The intra-court appeal preferred by the State Bank of India was dismissed but when the matter reached to the Hon‟ble Apex court it was argued that appointment on compassionate ground is never considered to be a right of a dependent of a deceased employee. It is a benefit granted to a dependent of an employee who dies in harness and is thus an exception to the general rule of "equality clause" guaranteed by Article 14 of the Constitution. Such appointment, hence, can only be given in accordance with the policy adopted or scheme framed by the employer. The Hon‟ble Supreme Court allowed the appeal preferred Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 28/44 by the Bank and in paragraph 31 and 33 of the judgment held as under:-
"31. We are of the view that both the Courts were wrong in granting relief to the writ petitioner. Appointment on compassionate ground is never considered a right of a person. In fact, such appointment is violative of rule of equality enshrined and guaranteed under Art. 14 of the Constitution. As per settled law, when any appointment is to be made in Government or semi- Government or in public office, cases of all eligible candidates must be considered alike. That is the mandate of Art. 14. Normally, therefore, State or its instrumentality making any appointment to public office, cannot ignore such mandate. At the same time, however, in certain circumstances, appointment on compassionate ground of dependents of deceased employee is considered inevitable so that the family of the deceased employee may not starve. The primary object of such scheme is to save the bereaved family from sudden financial crisis occurring due to death of sole bread earner. It is thus an exception to the general rule of equality and not another independent and parallel source of employment.
xxxx xxxx xxxx
33. Compassionate appointment is really a concession in favour of dependents of deceased employee. If during his carrier, he had committed Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 29/44 illegalities and the misconduct is proved and he is punished, obviously his dependents cannot claim right to the employment. With respect, the learned Single Judge was wholly wrong in observing that such an action would be violative of principles of natural justice."
30. In the case of State of Jammu and Kashmir and Ors. Vs. Sajad Ahmed and Anr. reported in (2006) 5 SCC 766 it was held that the compassionate appointment cannot be granted after ten to 14 years of death of an employee.
31. Further in the case of Jagdish Prasad Vs. State of Bihar and Anr. reported in (1996) 1 SCC 301 and in the case of Haryana State Electricity Board and Anr. Vs. Hakim Singh reported in (1997) 8 SCC 85 the Hon‟ble Apex Court held that rule of appointments to public service is that they should be on merits and through open invitation. It is the normal route through which one can get into a public employment. However, one of the exceptions to the rule is provided to the bereaved family of a deceased employee by accommodating one of his dependents in a vacancy. The object is to give succour to the family which has suddenly plunged into penury due to the untimely death of its sole breadwinner.
32. In the case of G. Ananta Rajeswara Rao (supra), the Hon‟ble Supreme Court was testing on the anvil of the Article 16(2) of the Constitution of India the validity of the office memorandum being no.14014/1/77-Estt.(D) issued by the Government of India on 25 th Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 30/44 November, 1978 by which it was provided that the Secretaries or Joint Secretaries in the Ministries/Departments are competent to appoint, in relaxation of the procedure of recruitment through the Staff Selection Commission or Employment Exchange, but subject to the other requirements set out therein, his son/daughter or near relative of the government servant who died in harness leaving his family in immediate need of assistance, in the event of there being no other earning member in the family, to a Group „C‟ post or Group „D‟ post. Having taken note of the various clauses in the memorandum, the Hon‟ble Supreme Court, in paragraph 5 of the said judgment held as under:-
"5. A reading of these various clauses in the Memorandum discloses that the appointment on compassionate grounds would not only be to a son, daughter or widow but also to a near relative which was vague or undefined. A person who dies in harness and whose members of the family need immediate relief of providing appointment to relieve economic distress from the loss of the bread-winner of the family need compassionate treatment. But all possible eventualities have been enumerated to become a rule to avoid regular recruitment. It would appear that these enumerated eventualities would be breeding ground for misuse of appointments on compassionate grounds. Articles 16(3) to 16(5) provided exceptions. Further exception must be on constitutionally valid and permissible grounds. Therefore, the High Court is right in holding that the appointment on grounds of descent clearly violates Article 16(2) of the Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 31/44 Constitution. But, however it is made clear that if the appointments are confined to the son/daughter or widow of the deceased government employee who died in harness and who needs immediate appointment on grounds of immediate need of assistance in the event of there being no other earning member in the family to supplement the loss of income from the bread- winner to relieve the economic distress of the members of the family, it is unexceptionable. But in other cases it cannot be a rule to take advantage of the Memorandum to appoint the persons to these posts on the ground of compassion."
33. In the case of Panchi Devi (supra), the widow of a deceased employee moved the High Court claiming family pension of her husband under Service Rule after 14 years of her husband‟s death. The Hon‟ble High Court dismissed the claim of the widow on the grounds inter alia that she had approached the High Court after 14 years of her husband‟s death and since all the dues admissible to the appellant‟s husband were duly settled during his lifetime and the widow of the deceased received all the dues including gratuity and thus the question of her entitlement to family pension does not arise. On examining the issue, the Hon‟ble Supreme Court found that Rule 22-A which was brought in the Service Rule vide notification dated 17.08.1980 would apply prospectively and no relief can be granted to the appellant on the basis of a decision in the case of one Prabhati Devi who Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 32/44 was said to be similarly situated as the Hon‟ble Supreme Court held that decision in Prabhati Devi‟s case did not lay down the correct law and it was held that:-
"............... Article 14 of the Constitution of India has a positive concept. Equality, it is trite, cannot be claimed in illegality."
34. The case of Steel Authority of India Ltd. (supra) was a case where the Hon‟ble Supreme Court interpreted the terms of tripartite settlement provided for appointment on compassionate ground. In the said case the deceased employee who died in harness had left behind his two wives, two married daughters, one unmarried daughter and three sons. The respondent no.1 before the Hon‟ble Apex Court happened to be the son through second wife whereas one Goverdan Das was another son through his first wife. A representation filed on behalf of the respondent no.1 for his appointment on compassionate ground was rejected. He challenged the decision rejecting his claim for appointment on compassionate ground, but the learned Single Judge of the Hon‟ble Jharkhand High Court dismissed the writ petition. In Letter Patent Appeal the writ application was allowed, therefore, being aggrieved by the decision of the Hon‟ble Division Bench the Steel Authority of India Ltd. moved in Special Leave Petition before the Hon‟ble Supreme Court. It was submitted that para 8.9.4 of the Memorandum of Settlement of Wages and Benefits, 1989 provides for appointment on compassionate ground in case of death of bread-earner due to an accident arising out of Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 33/44 and in course of employment and in the said case it was submitted that the employee had not died due to an accident. The Hon‟ble Supreme Court discussed a large number of judgments of the Hon‟ble Apex Court on the subject, set aside the judgment of the Hon‟ble Jharkhand High Court and allowed the appeal. In paragraph 15 and 16 the Hon‟ble Apex Court held as under:-
"15. This Court in a large number of decisions has held that the appointment on compassionate ground cannot be claimed as a matter of right. It must be provided for in the rules. The criteria laid down therefore viz. that the death of the sole bread earner of the family, must be established. It is meant to provide for a minimum relief. When such contentions are raised, the constitutional philosophy of equality behind marking such a scheme be taken into consideration. Article 14 and 16 of the Constitution of India mandate that all eligible candidates should be considered for appointment in the posts which have fallen vacant. Appointment on compassionate ground offered to a dependant of a deceased employee is an exception to the said rule. It is a concession, not a right (See SBI v. Anju Jain1 , SCC Para 33.)
16. Mr. Braj K. Mishra, learned counsel appearing on behalf of Respondent 1, however, placed strong reliance on a decision of this Court in Balbir Kuar v. SAIL 2 , wherein it was opined: (SCC p. 504, para 19) "19. Mr. Bhasme further contended that family members of a large number of the employees have already availed of the Family Benefit Scheme and as such it would be taken to be otherwise more beneficial to the employee concerned. We are not called upon to assess the situation but the fact remains that having due regard to the constitutional philosophy to decry a compassionate employment opportunity would neither be fair nor reasonable. The concept of social justice is the yardstick to the justice administration system or the legal justice and as Roscoe Pound pointed out the greatest virtue of law is in its adaptability and flexibility and thus it would be otherwise an obligation for the law courts also to apply the law depending upon the situation since the law is made for the society and whatever is beneficial for the society, the endeavour of the law court would be to administer justice having due regard in that direction."
1 (2008) 8 SCC 475:(2008)2SCC(L&S)724 2 (2000)6SCC493: 2000 SCC (L&S) 767 Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 34/44
35. On perusal of the judgment in the case of Canara Bank (supra), I find that the said judgment has been rendered in the facts and circumstances of the said case as has been observed by the Hon‟ble Apex Court. The facts in the said case would show that the employee had died prior to coming into force of new scheme. So far as the ratio of the judgment is concerned, the Hon‟ble Supreme Court referring to the judgment of the Apex Court in the case of Balbir Kaur & Anr. Vs. Steel Authority of India Ltd. & Ors. (2000) 6 SCC 493 reiterated that grant of family pension or payment of terminal benefits cannot be treated as a substitute for providing employment assistance. Considering the scope of the Scheme „Dying in Harness Scheme 1993‟ then in force and the facts and circumstances of the case the direction issued by the High Court was considered just and proper.
36. In the present case the issues are quite different and I am of the considered opinion that the judgment of the Hon‟ble Apex Court in the case of Canara Bank (supra) would not be applicable in context of the present case.
37. In Mahavir Paswan (supra) and Jay Prakash Choudhary (supra), in paragraph „8‟ the learned Single Judge of this Court relied upon the Division Bench judgment rendered in the case of Vishal Kumar (supra). I have quoted the relevant paragraph 8 from the judgment rendered in the preceding paragraphs of this judgment. Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 35/44
38. The Hon‟ble Division Bench considering the case of Vishal Kumar (supra) refused to accept the contention of the appellant in the said case that brother of the appellant who was gainfully employed in State Bank of India was separate from father and hence the appellate was entitled to seek his appointment on compassionate ground. What is evident from the judgment of the Hon‟ble Division Bench in the case of Vishal Kumar (supra) is that keeping in mind the objects of providing compassionate appointment as have been stated in the case of Umesh Kumar Nagpal (supra) the Hon‟ble Division Bench took a view having found that one of the sons of the deceased employee was already in service in the State Bank of India it cannot be accepted that family of the deceased employee is living in a state of penury and without any means of livelihood hence rejected the case of the appellant.
39. Recently a Division Bench of this Court while considering the Letters Patent Appeal No.1628 of 2016 and Letters Patent Appeal No.1212 of 2016 decided on 10.01.2018 and 30.10.2017 respectively refused to interfere with the judgment of the learned Writ Court when it was noticed that appellant in LPA No.1628 of 2016 (Rajeev Kumar Manjhi) filed an application seeking compassionate appointment four years after death of his father after attaining the majority and on finding that his elder brother was already in service his application for appointment on compassionate ground was rejected. The argument advanced on his behalf that the elder brother was not Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 36/44 maintaining the family was not considered to be a good ground to interfere with the dismissal of the writ application. Similarly, the appellant Chandra Prakash Ravi in L.P.A. No.1212 of 2016 was not found to have come within the ambit and purview of the claim of compassionate ground because two of his brothers were already in government service.
40. In Ashok Kumar Choudhary Vs. The State of Bihar & Ors. reported in 2000(4) PLJR (HC) 651 the Hon‟ble Division Bench had occasion to consider the instructions/circular dated 5th October, 1991 issued by the Government of Bihar providing inter alia that appointment on compassionate ground will be made available to the widow of the deceased employee, son, unmarried daughter and widow of the son. Clause 1(Anga) provided that if the husband and wife both are in service and one of them dies in harness; in that situation no appointment on compassionate ground shall be given to any of the dependent of the deceased employee. For the purpose of employment on compassionate ground an application had to be made in prescribed form which was enclosed as Annexure-1 to the said circular/instruction. Apart from other things it required that the dependent had to state the details of the income including family pension, gratuity, provident fund of the deceased employee, life insurance policy, movable and immovable property and the annual income of the family of the deceased. Circular further provided that if Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 37/44 both the husband and wife are in government service and one of them dies; in that situation the benefit of appointment on compassionate ground will not be available to the dependent of the family. The Hon‟ble Division Bench while interpreting the government circular held that any statutory provision or consideration to a circular/instruction has to be considered and when it is found that provisions are clear and unambiguous, then the plain meaning has to be given, unless the said meaning defeats the object of the provision or leads to anomaly, absurdity and inconsistency. If the provision is capable of more than one meaning the principle of purposive construction should be applied, so that the purpose and object for which the provision has been made are given effect to. The Hon‟ble Division Bench held thus, the crucial test to decide as to whether a person is to be appointed on compassionate ground or not is to find out whether the family has other sources of livelihood or not at the relevant time to meet the hardship, and once it is found that the financial condition is sufficient to tide over the crisis, then no appointment can be made on compassionate ground and the question whether the other spouse is continuing in service or has retired is wholly immaterial.
41. In the case of Anil Kumar (supra) while addressing the Hon‟ble Division in the said case, attention of the Court was not drawn towards the earlier Division Bench judgment of this Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 38/44 Court rendered in the case of Ashok Kumar Choudhary (supra) and Vishal Kumar (supra) and therefore the judgment rendered in the case of Anil Kumar (supra) is liable to be held as per in curium. It is more based on sympathy than a consideration to the scheme for appointment on compassionate ground. I have taken note of the judgment of the Hon‟ble Division Bench of this Court in the case of Ashok Kumar Choudhary (supra) hereinabove wherein it has been held that the crucial test to decide as to whether a person is to be appointed on compassionate ground or not is to find out whether the family has other sources of livelihood or not at the relevant time to meet the hardship, and once it is found that the financial condition is sufficient to tide over crisis, then no appointment can be made on compassionate ground and the question whether the other spouse is continuing in service or has retired is wholly immaterial.
42. In my considered opinion the judicial pronouncements of the Hon‟ble Apex Court are consistently saying that appointment on compassionate ground is out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet . To me it appears that there cannot be any other consideration.
43. The essence of the judgment of the Hon‟ble Division Bench in the case of Vishal Kumar (supra) is based on a sound rationale and reasoning inconformity with the views expressed by the Hon‟ble Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 39/44 Supreme Court in a catena of decision some of them, I have referred hereinabove to enlighten with the legal doctrines.
44. Keeping in mind the aforesaid judicial pronouncements on the subject, I find that the Government of Bihar has been providing appointment on compassionate ground and various circulars and guidelines in this regard have been issued in the matter of appointment on compassionate ground from time to time. There are various aspects on which the guidelines have been issued, but so far as the present case is concerned, the only issue which has fallen for consideration is at serial no.(d) provided in the tabular form of the memo no.15783 dated 19.11.2014, I have already reproduced the said memo in the very beginning of this judgment. The memo no.15783 dated 19.11.2014 forms integral part of the scheme for appointment on compassionate ground. The legality and validity of the said memo as contained in Annexure-A to the counter affidavit is not under challenge in the writ applications, therefore, in these matters I am looking to interpret in accordance with the legal doctrines following from the judgments of the Hon‟ble Apex Court as well as this Hon‟ble Court, Clause (d) of Annexure-A to the counter affidavit.
45. A perusal of Clause (d) of Annexure-A to the counter affidavit of respondent no.2 in CWJC No.17143 of 2016 would show that the clarification offered by the General Administration Department clearly states that where any of the Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 40/44 dependents of a deceased government servant is „gainfully employed‟ then irrespective of the fact whether he lives together or separate from other dependents, the benefit of compassionate appointment would not be available to any other dependents of the deceased government servant. I am of the considered opinion that the clarification offered by the Department being a part of the policy decision governing the scheme of appointment on compassionate ground is based on judicial pronouncement of this Court in the case of Vishal Kumar (supra) and it is fully in consonance with the object of compassionate appointment, it is also in tune with the views expressed by Hon‟ble Supreme Court in a catena of decisions some of them I have referred herein above. It is also reasonable one and passes the test of Article 14 and 16 of the Constitution of India. The clarification vide Clause (d) of Annexure-„A‟ to the counter affidavit of respondent no.2 cannot be found fault with on the touchstone of Article 14 and 16 of the Constitution of India.
46. I am of the considered opinion that keeping in mind the object of the compassionate appointment and well settled legal proposition that it is not a source of recruitment, it is a policy decision based on a sound public policy provided in the clarification that where any of the dependents of the deceased government servant is „gainfully employed‟, no other dependent would be entitled to get the Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 41/44 benefit of the scheme of compassionate appointment. Government has come out with a policy that the dependent who is gainfully employed is living separately from other dependents cannot be a reason to provide appointment and irrespective of that whether employed one lives together or separately the other dependents would not get the benefit of compassion. The word „dependents‟ here take into it‟s fold all the siblings of the applicant. The clarification as contained in Clause (d) of Annexure-A to the counter affidavit is based on the views expressed by the Hon‟ble Division Bench of this Court in the case of Vishal Kumar (supra) and at the same time it is in consonance with the law laid down by the Hon‟ble Supreme Court in the case of Umesh Kumar Nagpal (supra) as also other judgments of the Hon‟ble Supreme Court.
47. So far as the clarification that „gainfully employed‟ means such employment from which the employed dependent of the deceased government servant may provide sustenance or can maintain other dependents is concerned, it has to be looked at „objectively‟ and not „subjectively‟. It is not for the authority considering the application for compassionate appointment to find out as to whether the dependent in employment is willing to take care of other dependents or not. It would not be his concern that the gainfully employed sibling is actually providing sustenance to the other Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 42/44 dependents or not. Any argument that the dependent in employment is not willing to provide sustenance/maintenance to other dependents or that the employed one is living separately is beyond the scope and ambit of consideration under the given scheme and policy of the government and this Court sitting in its writ jurisdiction under Article 226 of the Constitution of India would not go into enquiring the correctness of the facts so pleaded before the Court. It is because the writ Court is to be conscious of the judicial pronouncements of the Hon‟ble Apex Court wherein it has been repeatedly held that a Court has no power to ignore a provision to relieve what it considers a distress resulting from its operation. We have quoted paragraph 10 and 11 of the judgment of Asha Ramchandra Ambedkar (supra) only to remind us what the Hon‟ble Apex Court has held in the following words;-
" the Courts should endeavour to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. Disregardful of law, however hard the case may be, it should never be done".
48. In terms of the clarification offered by the department, on receipt of information that other siblings of the applicant are in employment, the competent authority would be required to objectively look into the nature of the employment and the Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 43/44 resources being generated by the employed sibling from such employment. On an objective consideration where it is found that other sibling of the applicant is gainfully employed in such an employment from which he/she is in a position and has capacity to provide sustenance/maintenance to the other dependents, the application for appointment on compassionate ground would not fit in the scheme in terms of the clarification at Annexure-„A‟ referred above but where it is found that the employment of the other sibling is of such a nature that it is not generating resources so as to make him able to provide both ends meet, for sustenance/maintenance to the other dependents of the deceased government employee and despite gainful employment of one of the dependents but because of his poor income from such employment he is not in a position to provide two ends meet to the other dependents, therefore they are on the verge of starvation, destitution and penury, the authorities of the State would be liable to consider the application of other dependent for appointment on compassionate ground. No other plea in any form whatsoever would be a ground to provide the benefit of the scheme of compassionate appointment.
49. In my opinion the Division Bench judgment of this Court in the case of Vishal Kumar (supra) followed by learned Writ Court in the case of Mahabir Paswan (supra) and Jay Prakash Patna High Court CWJC No.17143 of 2016 dt. 02-05-2018 44/44 Choudhary (supra) are laying down the correct law. In none of these writ applications, the petitioners have pleaded that their other siblings are in such an employment by which they are unable to get sufficient money so as to provide the both ends meet to these petitioners, therefore we find no error in the impugned order rejecting the application of the petitioner(s) on the ground that their other siblings are in employment. I would, therefore approve the judgment dated 22.08.2016 passed by the learned Single Judge in CWJC No.10236 of 2013 which has followed the judgment of the Hon‟ble Division Bench in the case of Vishal Kumar (supra).
50. The Letters Patent Appeal as well as both the Writ Applications are, accordingly, dismissed. There will, however, be no order as to costs.
(Rajeev Ranjan Prasad, J) Rajendra Menon, C.J.- I Agree.
(Rajendra Menon, CJ) Dr. Ravi Ranjan, J.- I Agree.
(Dr. Ravi Ranjan, J) Arvind/-
AFR/NAFR AFR CA V DATE 04.04.2018 Uploading Date 02.05.2018 Transmission Date N/A