The Union of India, through Secretaary, Home Department Govt of v. India, New Delhi
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.886 of 2011 In Civil Writ Jurisdiction Case No. 18931 of 2010 ====================================================== 1. Karishma Kumar S/o Late Ram Lakhan Prasad R/o Vill.- Asoi, P.S.- Bhagawanpur, Distt.- Vaishali .... .... Appellant/s 1. The Union of India, through Secretaary, Home Department Govt of Versus India, New Delhi. 2. The Inspector General ,East Zone Head Quarter, Patna 3. Deputy Inspector General, Bokaro Steel City 4. Deputy Commandant C.I.S.F. Unit B.C.C.L, Dhanbad 5. Assistant Commandant C.I.S.F. Unit B.C.C.L. Dhanabad .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Ramakant Sharma, Sr. Adv & Mr. Rajesh Kumar, Advocate. For the Union of India : Mr. Binay Kumar Pandey, CGC ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE
Legal Reasoning
and HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 9 17-01-2013 Feeling aggrieved by the order dated 23rd November 2010 made by the learned single Judge in C.W.J. C No. 18931 of
Decision
2010, the writ petitioner has preferred this Appeal under Clause 10 of the Letters Patent. The appellant is the son of one Ram Lakhan Prasad. The said Ram Lakhan Prasad was a employed in the Central Industrial Security Force (hereinafter referred to as ‘the CISF’)and was posted at Bokaro. The said Ram Lakhan Prasad passed away in 2007 in harness. Pursuant to his death, the appellant applied for compassionate employment. His claim was 2 Patna High Court LPA No.886 of 2011 (9) dt.17-01-2013 2 / 5 rejected on 24th August 2010. The challenge to the said order in above C.W.J.C No. 18931 of 2010 has failed. Therefore, this Appeal. Learned counsel Mr. Ramakant Sharma has appeared for the appellant. He has challenged the order of the learned single Judge. Mr. Sharma has submitted that the appellant was wrongly deprived of compassionate employment since 2008. He has submitted that although the appellant was entitled to compassionate employment under the existing scheme, he was not offered such employment for quite a long time. In the meantime the Government of India, Directorate General, Central Industrial Security Force has, on 6th July 2010, issued CISF Circular No. 24 of 2010 (hereinafter referred to as ‘the Circular’) to provide for the recruitment procedure for constable/tradesmen in CISF. He has submitted that the Circular provides for regular recruitment. The compassionate employment has been expressly excluded from the said procedure. Nevertheless, the appellant was called upon to take the test and to qualify according to the said procedure. The appellant has now been denied compassionate employment on specious ground that he is not qualified for employment as constable/tradesman. He has submitted that the action of the respondents is malafide inasmuch as the appellant has been non- suited for compassionate employment for extraneous reasons. Learned advocate Mr. Binay Kumar Pandey has appeared for the respondent-Union of India. He has relied upon the affidavit of CISF unit, Chandrapura. He has submitted that pursuant to his application for compassionate employment the concerned officer had recommended his name for appointment 3 Patna High Court LPA No.886 of 2011 (9) dt.17-01-2013 3 / 5 as follower (Washer man ) (Group ‘D’). At the relevant time the vacancy in the cadre of follower was not available. The appellant, therefore, could not be offered compassionate employment. In the meanwhile in August 2008, the Government of India abolished the cadre of follower(Group ‘D’). However, under the recommendation made by the 6th Central Pay Commission, under Notification dated 31st May 2010, the Government of India revived the post of follower (Group ‘D) and converted it to the post of constable/tradesman (Group ‘C’). The procedure for recruitment of constable /tradesmen is set out in the Circular. Pursuant to the Notification dated 31st May 2010 and the Circular, the appellant was called upon to take the physical efficiency test for constable/tradesman. He was offered four chances (maximum permissible chances). At two of the tests he failed and the later two tests the appellant did not choose to appear for the test. The appellant having thus failed to qualify for appointment as constable/tradesman, his application has been rejected under the impugned order dated 24th August 2010. A great stress has been laid on the above referred CISF Circular No. 24 of 2010 issued on 6th July 2010. Mr. Sharma has submitted that the Circular applies for regular employment to the post of constable/tradesman. Whereas for compassionate employment no test is prescribed. The appellant had wrongly been put to test designed for regular recruitment. The said Circular No. 24 of 2010 provides for recruitment procedure for constable/tradesmen in C.I.S.F. Clause 2 of the Circular provides for eligibility conditions i.e, age, education, physical standard, power of relaxation, medical 4 Patna High Court LPA No.886 of 2011 (9) dt.17-01-2013 4 / 5 standard, physical efficiency etc. The physical efficiency provides for running one mile in 6 minutes and 30 seconds for male. That is the test at which the appellant had failed. The Circular further clarifies that the physical test is the eligibility criterion and is not relevant to the merit. The ex-service men are exempted from physical efficiency test. It further provides that the widows applying under compassionate employment scheme are not required to take physical efficiency test. At the end, the Circular provides for compassionate employment to the effect that the candidate will have to demonstrate proficiency in the trade for which he or she is to appear and that the candidate will either qualify or fail to qualify on the basis of such test. The Circular is clear and unambiguous. Insofar as the compassionate employment is concerned, persons seeking compassionate employment, except the widows of the deceased employees, are required to qualify at the physical efficiency test prescribed under the Circular. It is apparent that the physical efficiency test is applied uniformly to all categories of tradesmen apart from the special skill required for the particular category. If the appellant had been subjected to physical efficiency test under the Circular and he had failed, he cannot claim compassionate employment as a matter of course. The contention is that the appellant having applied for compassionate employment as early as in 2008, the aforesaid Circular dated 6th July 2010 shall not apply to the appellant does not appeal to us. As borne out from the affidavit, at the relevant time the vacancy was not available and that later the said cadre was abolished. The cadre was revived on 5 Patna High Court LPA No.886 of 2011 (9) dt.17-01-2013 5 / 5 constable/tradesman(category C). Thus, the avenue for compassionate employment opened up for the appellant. The Circular is explicit. Even for appointment on compassionate ground in the cadre of tradesman a candidate is bound by all regulations, circulars, eligibility and qualifications of the cadre of tradesman. Even after the rejection of his claim on 24th August 2010, the appellant had been given opportunity to take the test again. He took the test on 28th January 2011 but failed. In the next two opportunities on 15th May 2011 and 18th October 2011 he did not appear before the authority. Thus it is apparent that adequate opportunity was given to the appellant to improve his standard but the appellant failed. The appellant is not entitled for further compassion. We see no illegality in the action of the respondent in rejecting the appellant’s claim for compassionate employment. No case for interference is made out. Appeal is dismissed in limine. (R.M. Doshit, CJ) (Ahsanuddin Amanullah, J) Prakash/Anand