The Principal Secretary, Building Construction Department, Govt. of v. Bihar, Patna
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5681 of 2013 ====================================================== Santosh Kumar, son of late Mritunjay Kumar, resident of Village and P.O. Badara, P.S. Noorsarai, Dist. Nalanda, At present resident of C/o Gita Devi, Hanumangarhi, Sareya, Ward No.11, P.S. & Dist. Gopalganj. .... .... Petitioner 1. The State Of Bihar. 2. The Principal Secretary, Building Construction Department, Govt. of Versus Bihar, Patna. 3. The Chief Engineer, Building Construction Department, Govt. of Bihar, Patna. 4. The Executive Engineer, Building Construction Department, Gopalganj. 5. The District Magistrate, Gopalganj. .... .... Respondents ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 05-04-2013 No one appears for the petitioner. 2. Counsel for the State is present. 3. The prayer of the petitioner in this writ application reads as follows:- "That the present writ application the poor helpless and orfan unemployed petitioner craves indulgence before this Hon'ble Court for issuance of a writ in the nature of certiorari for setting aside the order dated 14.01.2013 and bearing order no. 11/2013 passed by the District contained in Annexure-8 Establishment Committee, Gopalganj whereby and whereunder claim of compassionate appointment of the petitioner has been rejected illegal and unconstitutional manner. in very And further for issuance of a writ in the nature of mandamus directing the respondents to appoint this petitioner on compassionate round as father of the petitioner namely Late Mritunjay Kumar has already died on 23.01.2009 in harness during tenure of his service, working on the post of Treasurer (Anurekhak) of Gopalganj Division of Building Construction Department with full arrear, current and subsequential emoluments." Patna High Court CWJC No.5681 of 2013 (2) dt.05-04-2013 2/13 4. Learned counsel for the State while supporting the impugned order has submitted that the impugned order dated 14.01.2013 denying the claim of the petitioner for appointment on compassionate ground because of the elder brother of the petitioner namely Pankaj Kumar to be already employed in Central Reserve Police Force(C.R.P.F) does not suffer from any error. 5. From the perusal of the writ application, it would be clear that after the father of the petitioner working on the post of Treasurer had died in harness on 28.01.2009, thereafter the petitioner had filed his application for appointment on compassionate ground on 12.05.2010 which was duly forwarded by the superintending engineer, the controlling authority/officer of the deceased father of the petitioner to the establishment of Deputy Collector of Gopalganj district for its being placed before the District Compassionate Appointment Committee for a suitable order. The District Compassionate Appointment Committee, thereafter in the meeting held on 30.08.2010 had held the petitioner to be ineligible for appointment on compassionate ground because his elder brother namely, Pankaj Kumar was already employed in C.R.P.F. Such decision of the District Compassionate Appointment Committee refusing to appoint the petitioner on compassionate ground dated 30.08.2010/01.09.2010 was assailed by the petitioner by filing a writ petition being C.W.J.C No. 5407 of 2011, wherein,
Facts
Patna High Court CWJC No.5681 of 2013 (2) dt.05-04-2013 3/13 the order passed by District Compassionate Appointment Committee was quashed and a direction was issued to reconsider the application of the petitioner for appointment on compassionate ground. 6. The impugned order in fact has been passed on 15.01.2013, relevant portion whereof reads as follows:- lekgj.kky;] xksikyxat …ftyk LFkkiuk ’kk[kk‰ vkns’k la0 11@2013 v/kh{k.k vfHk;ark] Hkou fuekZ.k foHkkx] Hkou vapy] Nijk ds i=kad 509 vuq0 fnukad 02-06-2010 }kjk Jh larks"k dqekj firk& Lo0 e‘R;qat; dqekj] vuqjs[kd Hkou ize.My] xksikyxat] xzke$iksLV&cM+kjk] Fkkuk&uwjljk;] ftyk&ukyank dk vuqdEikRed fu;qfDr gsrq vkosnu izkIr gqvkA fnukad 30-08-10 dks ftyk vuqdEik lfefr dh cSBd esa jh larks"k dqekj ds vuqdEikRed fu;qfDr ds lanHkZ esa fopkj fd;k x;kA vkosnd ds cM+s HkkbS Jh iadt dqekj lh0vkj0ih0,Q0 esa dk;Zjr gSa vuqdEik lfefr }kjk fu.kZ; fy;k x;k fd vuqdEik dk ykHk Jh dqekj dks ughas fn;k tk ldrk gSA ftyk vuqdEik lfefr ds fnukad 30-08-10 ds fu.kZ; ds fo:n~/k Jh dqekj }kjk ekuuh; mPp U;k;ky;] iVuk esa lh0MCyw0ts0lh0 ua0&5407@2011 nk;j fd;k x;k nk;j okn eas fnukad 21-09-12 dks ekuuh; mPp U;k;y; }kjk vkosnd dks ftyk inkf/kdkjh xksikyxat ds le{k iquZfopkj gsrq vH;kosnu nsus rFkk ftyk inkf/kdkjh] xksikyxat ds vkosnu ij iquZfopkj djus dk fu.kZ; ikfjr fd;k x;k gSa ikfjr U;k; fu.kZ; ds dze esa dk;Zikyd vfHk;ark] Hkou fuekZ.k ize.My] xksikyxat ds i=kad 1050 fnukad 31-10-12 }kjk Jh dqekj ds dkxtkr layXu djrs gq, lh0Mcy0ts0lh0 ua0 5407@2011 esa ikfjr U;k;kns’k ds vkyksd esa ;Fkksfpr dkjZokbZ djus gsrq vuqjks/k fd;kA lkek; iz’kklu foHkkx] fcgkj iVuk ds i=kad 1781 fnukad 10-05-2010 }kjk ifjpkfjr CWJC No.6668/2003 egkohj ikloku cuke fcgkj ljdkj ,oa vU; ,oa CWJC No.7044/2003 t;izdk’k pkS/kjh cuke fcgkj ljdkj ,oa vU; esa fnukad 22-07-2012 esa U;k;kns’k ikfjr gS fd “In the matter of Vishal Kumar (Supra), this court after taking into consideration the argument that the employed brother and the Patna High Court CWJC No.5681 of 2013 (2) dt.05-04-2013 4/13 father were living separately and evidence was offered to that, the said petitioner was entitled to an appointment, observed the court is afraid, this logic of law will apply if there will be rivalry with in the family as in the present case between the father and the son or between siblings, a job can be offered on the principle of compassionate ground only to one person and when one is gainfully employed, there is no obligation to offer a job in an otherwise backdoor entry employment. The above referred observations of the Division Bench certainly strike at the very roots of the petitioner’s 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 back-door entry employment then the petitioners certainly would not be entitled to appointment on compassionate ground. The petitions deserve to and are accordingly dismissed.” fnukad 08-01-2013 dks laiUu ftyk vuqdEik lfefr dh cSBd esa foHkkxh; ifjpkfjr CWJC No.6668/2003 ,oa CWJC i= No.7044/2003 esa ikfjr U;k; fu.kZ; ds vkyksd esa Jh larks"k dqekj dks }kjk vuqdEikRed fu;qfDr dk ykHk ugha fn;s tkus dk loZlEefr ls fu.kZ; fy;k x;kA bl izdkj dk;Zikyd vfHk;ark Hkou fuekZ.k ize.My xksikyxat ds ek/;e ls ;kfpdkdRrkZ ds izkIr vH;kosnu ftyk vuqdEik lfefr ds fu.kZ; ds vkyksd esa fuLrkfjr fd;k tkrk gSA g0@& g0@& g0@& LFkkiuk mi lekgRrkZ vij lekgRrkZ ftyk inkf/kdkjh xksikyxat xksikyxat xksikyxat 7. From the reading of the aforementioned impugned order, it would be absolutely clear that the respondents have considered the case of the petitioner at great length and have taken Patna High Court CWJC No.5681 of 2013 (2) dt.05-04-2013 5/13 decision in the light of the law laid down by this Court which has been also quoted in the impugned order itself.
Legal Reasoning
considered by the Division Bench of this Court in the case of Vishal Kr. Vs. The State of Bihar and others reported in 2004(2) PLJR 453 wherein, it was held as follows:- "Upon the death of his father the appellant applied for job as a compassionate appointment. The claim was rejected on 21.05.2003 by the District Compassionate Committee of which the collector is the Chairman. The matter relates to seeking a job in the Rural Engineering Organisation Department. The job was denied by the Committee on the ground that the elder brother of the appellant had been gainfully employed in the State Bank of India. The contention of the appellant is to the effect that his brother and father were separate and evidence was offered, to the effect, that this was so. The Court is afraid, this logic of law will not apply for 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 appointment only to one person and when one is gainfully employed, there is no obligation to offer a job in an otherwise Patna High Court CWJC No.5681 of 2013 (2) dt.05-04-2013 12/13 backdoor entry employment. An order has been cited in the case of Bharat Prasad vs State of Bihar, and other reported in 1998 (1) PLJR 125. From paragraph 4 of the order, it is clear that the learned judge has clearly mentioned that he is not deciding the validity of any guideline and merely permitted filing of a representation. This case does not apply to the circumstances of the case under consideration. 18. The aforesaid view of Division Bench was also followed by the learned single Judge in the case of Mahabir Paswan Vs. The State of Bihar and others reported in 2004(4) PLJR 121, wherein, it was held as follows:- "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, the said petitioner was entitled to an appointment, observed” the Court is afraid, this logic of law will into apply if there will be rivalry with in 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 on in gainfully employed, there is no obligation to offer a job in an otherwise backdoor entry employment.” The above referred observations of the Division Bench certainly strike at the very roots of the petitioner’s rights. In each of the case, on of the son of the deceased is gainfully employment 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 back-door entry employment then the petitioners certainly would not be entitled to appointment on Patna High Court CWJC No.5681 of 2013 (2) dt.05-04-2013 13/13 compassionate ground. The petitioners deserve to and are accordingly dismissed". 19. In view of above the reliance placed on an order of this Court dated 21.09.2012 in C.W.J.C. No. 5407/2011 filed by the petitioner wherein the matter was remitted back to the authority for a reconsideration is itself misconceived. In this context it would be also useful to refer to a passage of a recent judgment of the Apex Court in the case of Ratiram and Others vs The State of Madhya Pradesh reported in 2012(4) SCC 516 wherein, while dealing with the concept of per incurium, it had been held as follows:- "The decisions rendered in Moly Case, (2004)4 SCC 584 and Vidyadharan case, (2004) 1 SCC 215 have not noted the decision in Bhooraji case, (2001) 7 SCC 679, a binding precedent, and hence they are per incuriam and further, the law laid down therein, whereby the conviction is automatically set aside or the matter is remanded after getting aside the conviction for fresh trial on mere procedural irregularity in committal proceedings without examining whether it has occasioned a failure of justice as laid down herein, does not expound the correct proposition of law and, accordingly, they are hereby, to that extent overruled." 20. That being so, this writ application must fail and is, accordingly, dismissed. There would be, however, no order as to costs. Rishi/ranjan (Mihir Kumar Jha, J)
Arguments
8. This Court in absence of learned counsel for the petitioner has carefully perused the pleadings and from them it would be found that the petitioner relies on a Panchnama dated 20.05.2013 to show that in the lifetime of the father of the petitioner there was a family settlement as with regard to both the lands and the building, wherein, 1.14 acres of land as also 2 rooms of the residential house had fallen in the share of the father of the petitioner and 17 decimals of land and one room of the residential house has fallen in the share of the elder brother of the petitioner namely, Pankaj Kumar. In the writ application, succession certificate has also been enclosed dated 30.04.2001 to show that after the death of the father of the petitioner the entire retiral dues to the tune of Rs. 5, 90, 000/- has been acquired by the petitioner. From the succession certificate, it would be also clear that the deceased father of the petitioner was widower and had only two sons and a married daughter namely Santosh Kumar (petitioner), Pankaj Kumar the elder brother of the petitioner employed in C.R.P.F and Archana Devi w/o Manoj Kumar and daughter of late Mritunjay Kumar, the father of the petitioner. 9. As a matter of fact the certificate of Mukhiya dated 27.04.2009 by itself would be an evidence of the fact that the mother of the petitioner, namely, late Manju Devi had died in the Patna High Court CWJC No.5681 of 2013 (2) dt.05-04-2013 6/13 year 1993 and that the elder brother of the petitioner already employed in C.R.P.F had left death cum retirement benefit as also claim for compassionate appointment for the petitioner, Santosh Kumar. 10. It is on these materials that the petitioner wants a direction from this Court for his appointment on compassionate ground. Primarily the case of the petitioner is that since the father of the petitioner had died in harness at a point of time when he was already separate in mess and business with the elder brother of the petitioner namely Pankaj Kumar, he (petitioner) would be entitled for appointment on compassionate ground. 11. First of all this Court would find that the father of the petitioner apart from his Government job had sizeable property and residential house. Added to it, the petitioner had acquired Rs. 5,90,000/- as the sole successor which was paid by way of death cum retirement benefit after the death of the father of the petitioner. Thus it was the question of sustenance of only one person namely the petitioner, inasmuch as, two other family members namely Pankaj Kumar, the elder brother of the petitioner who is already employed in C.R.P.F whereas the daughter of the deceased employee Archana Devi had already been married. 12. In such a situation if the respondents had considered the financial condition as also availability of Government employment Patna High Court CWJC No.5681 of 2013 (2) dt.05-04-2013 7/13 of Pankaj Kumar to be sufficient ground for denying the petitioner’s appointment on compassionate ground, the same cannot be held to be bad. 13. In the considered opinion of this Court, the aforesaid decision taken by the District Compassionate Appointment Committee does not suffer from any error. The policy of compassionate appointment of the State Government which initially came into existence by Circular dated 12.07.1977 had specifically laid down that compassionate appointment would be offered to the dependent of the family of the deceased employee only if the family was in distress. The same principle was further reiterated in the revised policy of the State Government Circular dated 05.10.1991 and in fact such policy of compassionate appointment which is prevalent even at present contains a clear provision that the condition of the family of the deceased employee would be primarily taken into consideration while deciding the claim of compassionate appointment of a dependent of the deceased employee. 14. In that view of the matter, if another son of the deceased employee was already in Government service working on the post of constable in C.R.P.F, it cannot be said that the condition of the family was one of penury, a concept which was laid down by the Apex Court in the case of Umesh Kumar Nagpal Vs The State of Patna High Court CWJC No.5681 of 2013 (2) dt.05-04-2013 8/13 Haryana reported in 1994(4) SCC 138, wherein, it was held that the dependent of an employee dying in harness and leaving his family in penury without any means of livelihood would alone be entitled for being considered for appointment on compassionate ground on purely humanitarian consideration that unless some source of livelihood is provided the family would not be able to make both ends meet. In this regard the Apex Court had held as follows:- The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and met-it. No other mode of appointment nor any other consideration is Neither the Governments nor the 140 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 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 not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants 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 Patna High Court CWJC No.5681 of 2013 (2) dt.05-04-2013 9/13 is justifiable and valid since 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 being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the is not rule discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the in consideration of the services rendered by him and the legitimate expectations, and the Change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned. the deceased employee family of is it 15. Having regard to the aforementioned law laid down by the Apex Court, this Court would not find any error in the decision taken by the District Compassionate Appointment Committee, inasmuch as, the same philosophy has been also borrowed in the Government policy of compassionate appointment relevant portion whereof reads as follows:- ^^funs’kkuqlkj v|ksgLrk{kjh dks dguk gS fd lsokdky esa ljdkjh lsodksa dh vlkef;d e‘R;q ds pyrs cgqrsjs ekeys esa muds ifjokj ds vkfJr lnL;ksa dh ?kksj vkfFkZd ladV dk lkeuk djuk iM+rk gSA ,slh foiRrh ds le; lacaf/kr ljdkjh lsod ds ifjokj dks lkgk;; nsus ds iz’u ij ’kklu dqN le; ls fopkj dj jgk FkkA bl laca/k esa jkT; ljdkj us fu.kZ; fy;k gS fd ,sls ljdkjh lsodksa Patna High Court CWJC No.5681 of 2013 (2) dt.05-04-2013 10/13 ds ifjokj ds fdlh ,d lnL; dks oxZ&3 ,oa oxZ&4 ds inksa ij] tgka yksd lsok vk;ksx ds ijke’kZ dh vko’;drk ugha gS] fu;qfDr esa izkFkfedrk nh tk;sA mDr izkFkfedrk ds fy;s fuEufyf[kr ’kRrZ ,oa rF; vfuok;Z gksaxs& …1‰ e‘r ljdkjh lsod ds ifjokj dh vkfFkZd fLFkfr vPNh u gks] vFkkZr ml ifjokj dk dksbZ Hkh lnL; fdlh izdkj dk thfodksiktZu dk dk;Z u djrk gks vkSj ;fn djrk Hkh gks rks mldh vkenuh iwjs ifjokj ds lk/kkj.k Hkj.k&iks"k.k ds fy;s vi;kZIr gks ,oa mldh lEizfr vkSj nsunkjh dks ns[krs gq, bl izdkj dh lgwfy;r nsuk tk;t gksA …2‰ ------------------------------------------------------------------------------------------------------------------------- …3‰ ------------------------------------------------------------------------------------------------------------------------ …4‰ ------------------------------------------------------------------------------------------------------------------------- …5‰ ------------------------------------------------------------------------------------------------------------------------- …6‰ ------------------------------------------------------------------------------------------------------------------------- …7‰ ---------------------------------------------------------------------------------------------------------------------** 16. An aspect which has been sought to be canvassed with repeated emphasis in the writ petition that the brother of the petitioner was already employed in C.R.P.F on the post of constable had been separate in mess and business from the lifetime of his father and thus would not be treated to be a part of the family so as to disentitle the other dependent, in the opinion of this Court also does not impress this Court. It has to be always kept in mind that it is the family of the deceased employee which has to be offered employment on compassionate ground and if the family, like in the case of the petitioner consisting only of three persons namely, his elder brother and his married sister out of whom two of them have sufficient means of sustenance the family cannot be said to be in distress and penury specially when the petitioner has himself admitted to have received the sum of Rs. 5,90,000/- by way of death cum retirement benefit of his deceased father as also his share in the land and building which had fallen in the share of his father in the family settlement in the year 2003. 17. As noted above, it is not the hereditary right which has Patna High Court CWJC No.5681 of 2013 (2) dt.05-04-2013 11/13 been created under the scheme of compassionate appointment that after the death of the father, the son must be employed. The Government therefore, in all fairness has laid down a firm guideline for evaluating the condition of the family by prescribing the information to be disclosed in the application itself. The District Compassionate Appointment Committee, therefore, was fully justified in going into the aspect of resources available to the family and its decision to reject the case of the petitioner on the ground that the younger brother of the petitioner was already employed C.R.P.F cannot be said to be alien to the concept of compassionate appointment. It is this aspect of the matter which has been