Billo Mehtarani v. The State of Bihar

For the Petitioner/s : Mr. Vivekanand Vivek, Advocate For the State of Bihar : Mr. Iqbal Asif Niazi, A.C. to G.P.-4 For the respondents 3 & 4 : Mr. Manish Kumar, Advocate For the respondent No.5 : Mr. Swapnil Kumar Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 6 18-02-2013 A counter affidavit has been filed on behalf of the respondent no.5 during the course of hearing of the case. Let it be kept on the record.

2. The petitioner has approached this Court under Article 226 of the Constitution of India, questioning the validity and correctness of the order dated 20.3.2002 (Annexure-6) issued the Administrator of Bhagalpur Municipal Corporation, whereby appointment of the petitioner made on compassionate 2 Patna High Court CWJC No.4164 of 2006 (6) dt.18-02-2013 ground has been cancelled.

3. From the pleadings of the parties, few facts stand admitted. One Rasuliya Mehtarani was regular employee of respondent Bhagalpur Municipal Corporation (for ‘respondent Corporation’). She died in harness on 11.9.1993. The petitioner claiming to be the heir and legal representative of the deceased employee Rasusliya Mehtarani applied for her appointment on compassionate ground. Matter was considered by the District Compassionate Committee, Bhagalpur, whereafter, by an order dated 6.11.2001 (Annexure-1), the petitioner-Billo Mehtarani, besides others, was appointed on compassionate ground by the Administrator of the respondent Corporation.

4. The counter affidavits filed on behalf of respondent nos. 3 and 4, as also respondent no. 5 do not dispute the aforesaid factual position, particularly regarding the death of the deceased employee Rasuliya Mehtarani, regarding relationship of the petitioner with the deceased employee as also her appointment on compassionate ground.

5. However, it appears that after the order of appointment was issued to the petitioner by Annexure-1, some manipulations have been made by the petitioner in collusion with respondent no.5. The petitioner is said to be physically handicapped. As per the averments made in the counter affidavit filed on behalf of the respondent no.5, she (respondent no.5) is not the daughter of the deceased employee Rasuliya Mehtarani rather she is the niece of the present petitioner. It is the case of respondent no.5 also that the present petitioner is the daughter of the deceased employee and once the letter of appointment was issued in favour of the petitioner, then because of private 3 Patna High Court CWJC No.4164 of 2006 (6) dt.18-02-2013 arrangements between two, respondent no.5 started discharging her duties in place of the present petitioner and in lieu thereof the petitioner was promised to be paid Rs. 1,000/- per month only by the respondent no.5, and the rest money was required to be retained by respondent no.5 herself. It appears that subsequently some dispute arose between the petitioner and respondent no. 5 on the question of quantum of share in the salary paid by the respondent Corporation. Thereafter, some complaint was filed by the petitioner as also by her father, as a result thereof the impugned order dated 20.3.2002 (Annexure-6) has been passed cancelling the appointment of the petitioner made on compassionate ground.

6. Learned counsel appearing on behalf of the petitioner submits that there is no dispute that the petitioner happens to be the daughter of the deceased employee and once she was appointed by the competent authority after following the procedure, her appointment could not have been cancelled without giving her opportunity of hearing. He submits that the reasons recorded for cancellation of the appointment in the impugned order (Annexure-6) was with respect to the respondent no.5 and not with respect to the present petitioner.

7. Learned counsel appearing on behalf of the respondent Corporation and its functionaries has supported the impugned order and has contended that there is no dispute of relationship between the petitioner and the deceased employee Rasuliya Mehtarani. He has further submitted that there is no dispute that the petitioner was appointed on compassionate ground, but because of connivance between the petitioner and respondent no.5, instead of the writ petitioner, the respondent no.5 4 Patna High Court CWJC No.4164 of 2006 (6) dt.18-02-2013 was working in place of the present petitioner, as a result of which the impugned order has been passed cancelling the appointment of the present petitioner. It is further contended that subsequently it transpired that at the relevant time, the petitioner was a married lady and as such she could not have been appointed on compassionate ground, if the entire facts would have been disclosed by the petitioner to the respondent Corporation. It is also highlighted that a criminal case has been filed in which the petitioner, respondent no.5 as also father of the present petitioner are facing criminal prosecution. According to him, the petitioner has not come with clean hands, therefore, this Court may not exercise its discretionary power under Article 226 of the Constitution of India for setting aside the impugned order dated

20.3.2002 (Annexure-6).

8. After having heard the parties, and on consideration of the materials available on the record, this Court finds that before issuance of the impugned order dated 20.3.2002 ( Annexure-6), the present petitioner was not given opportunity of hearing rather opportunity of hearing was given to respondent no.5. Secondly, the reasons disclosed in the impugned order for cancellation of the order of appointment of the petitioner on compassionate ground are completely different from the pleadings in the counter affidavit filed on behalf of the respondents 3 and 4 as also respondent no. 5. From perusal of the impugned order, this Court further finds that no criminal case is pending with respect to the appointment in question made by the competent authority. In the aforesaid factual background, this Court is of the opinion that the matter should be reconsidered afresh. Opportunity of hearing must be given to all concerned including the petitioner and 5 Patna High Court CWJC No.4164 of 2006 (6) dt.18-02-2013 respondent no.5. Cogent reasons must be recorded in the order for cancellation of appointment of the petitioner on compassionate ground, which is completely lacking in the impugned order.

9. For the reasons recorded above, the impugned order dated 20.3.2002 (Annexure-6) is hereby set aside. The matter is remitted back to the Municipal Commissioner, Bhagalpur Municipal Corporation, who shall pass a fresh order in accordance with law, after giving reasonable opportunity of hearing to all concerned including the petitioner within a period of three months from the date of receipt/production of a copy of this order. Consequential financial benefits shall be dependant on the fresh order passed by the Municipal Commissioner of the respondent Corporation.

10. The application stands allowed to the extent indicated above. Parties are left to bear their own costs. Kanth/- (Birendra Prasad Verma, J)