Ramakant Baitha v. The State of Bihar & Ors.

Judgment

7. The State of Bihar through the Principal Secretary, Agriculture Department, Govt. of Bihar, Patna The Director (Sasya) Bij Visleshan Agriculture Department, Govt. of Bihar, Patna The Assistant Director (Sasya) Bij Vishleshan, Regional Bij Vishleshan Laboratory, Motihari, East Champaran The District Magistrate East Champaran (Motihari) The Additional Collector (Establishment) East Champaran (Motihari) The District Agriculture Officer Dist-East Champaran (Motihari) The District Welfare Officer Dist-East Champaran (Motihari) ... ... Respondent/s ====================================================== Appearance : For the Petitioner/s For the Respondent/s ====================================================== CORAM: HONOURABLE MR JUSTICE MADHURESH PRASAD Mr Bijay Shankar Choubey, Advocate Mr Dhurjati Kumar Prasad, GP XIV : : CAV JUDGMENT Date : 12-04-2023

Heard learned counsel for the petitioner as well as the learned State Counsel.

2. Father of the petitioner died in harness on

01.08.2012 as a Peon in the Collectorate at East Champaran, Motihari. The admitted factual position is as follows:

3. The petitioner is having the qualification of Class VIII which was the requisite minimum educational Patna High Court CWJC No.16520 of 2019 dt.12-04-2023 qualification for claiming appointment on compassionate ground on the date of demise of the petitioner’s father. This minimum qualification was amended to matriculation by the General Administration Department by a circular dated 12.12.2012. The petitioner made an application for compassionate appointment on

29.09.2014. The same has been rejected on 10.06.2019 under intimation to the petitioner which is dated 04.07.2019, on the ground that the petitioner does not possess the minimum requisite educational qualification of matriculation as per circular dated

12.12.2012. The same has been put to challenge in the instant writ proceedings.

4. Learned counsel for the petitioner submits that the minimum educational qualification, requisite for claiming compassionate appointment, is to be seen with reference to the date of demise of the employee in harness, which, in the instant case, is 01.08.2012. In support of his submission, he has relied upon decisions of the Apex Court in the case of State of Madhya Pradesh & Others -Versus- Ashish Awasthi since reported in (2022) 2 Supreme Court Cases 157. Subsequent amendment introducing higher qualification is irrelevant for consideration of the petitioner’s claim. Therefore, rejection of his claim by the Patna High Court CWJC No.16520 of 2019 dt.12-04-2023 impugned order dated 04.07.2019 is unsustainable and the order is fit to be quashed.

5. Learned State Counsel, on the other hand, submits that the benefit of compassionate appointment is available under a scheme of the Government. The scheme requires filing of an application, that also within stipulated time. If application is not presented within the stipulated time (5 years), the employee is considered ineligible for the appointment.

6. Making of an application is a mandatory requirement. Thus, the minimum qualification applicable on the date of making application must be considered as the relevant date for taking into consideration the minimum requisite educational qualification. The petitioner applied for compassionate appointment nearly two years after issuance of circular dated

12.12.2012 prescribing the minimum requisite educational qualification of being a matriculate. The authorities have thus rightly considered the petitioner’s claim treating matriculation as the minimum requisite educational qualification as per circular dated 12.12.2012, and rejected the petitioner’s claim, since admittedly, he was VIII pass.

7. To ensure consistency in matter of grant of compassionate appointment, the State Government has also come Patna High Court CWJC No.16520 of 2019 dt.12-04-2023 out with a circular dated 04.02.2015 to resolve the dispute/s regarding minimum requisite educational qualification arising out of amendment introduced vide circular dated 12.12.2012. Specific reliance is placed on Clause 4 of the circular, which reads as follows: ” **4- leqfpr fopkjksijkUr fu.kZ; fy;k x;k gS fd fopkjk/khu ekeys dh Js.kh esa lsokdky esa e`r ljdkjh lsodksa ds vkfJrksa ls izkIr oSls vkosnuksa dks ekU; fd;k tk,xk tks lacaf/kr foHkkx@dk;kZy;] tgk¡ lsokdky esa e`r ljdkjh lsod inLFkkfir Fks] esa e`rd ds vkfJr }kjk fnukad& 12-12-2012 ls iwoZ vFkkZr~ fnukad&11-12-2012 rd lefiZr fd;s tk pqds gSa rFkk ekeyk foHkkxh;@dk;kZy;@vuqdEik lfefr ds Lrj ij yafcr gSA fcgkj ljdkj ^^?k** ¼HkÙkhZ ,oa lsok 'krsZ½ ¼lakks/ku½ fu;ekoyh] 2012 ds vf/klwfpr gksus dh frfFk fnukad 12- 12-2012 ds iwoZ vFkkZr 11-12-2012 rd lacaf/kr foHkkx@dk;kZy; esa lefiZr vkosnu ij vkt dh frfFk esa vuqdEik lfefr;ksa }kjk fopkj djrs le; lewg ^^?k** ds in ij fu;qfDr gsrq vuq kalk djrs le; okafNr ’kS{kf.kd ;ksX;rk iwoZ dh fu;ekoyh] fcgkj lewg ^^?k** ¼HkÙkhZ ,oa lsok&'krsZ½ ¼la kks/ku½ fu;ekoyh] 2010 ds ” vuqlkj v’Ve~ mÙkh.kZ gh ekuh tk;A ijUrq] v’Ve~ mÙkh.kZrk ds vk/kkj ij lewg ^^?k** ds in ij fu;qfDr gsrq vuq kaflr vH;fFkZ;ksa dks foÙk foHkkx ds ladYi Kkikad&2937 fnukad&31-03-2011 dh dafMdk&03 (ii) ,oa 7099 fnukad&01-08-2011 dh dafMdk&03 esa fofgr izko/kkukuqlkj fu;qfDr dh frfFk ls mUgsa xzsM is :0 1650- 00 rFkk izfk{k.k ds mijkUr fu;qfDr dh frfFk ls gh xzsM is :0 1800-00 ,oa osru o`f) ns; gksxhA** ” ” ”

8. It is submitted that the petitioner’s case is covered by decision of the Apex Court in the case of State Bank of India & Another -Versus- Raj Kumar since reported in (2010) 11 Supreme Court Cases 661 /para 12 and another decision in the case of State of Maharashtra & Another -Versus- Ms Madhuri Patna High Court CWJC No.16520 of 2019 dt.12-04-2023 Maruti Vidhate since reported in 2023 (1) PLJR (SC) 40. The amended requirement of minimum requisite educational qualification is uniformly being applied in terms of the Circular dated 12.12.2012. The order rejecting the petitioner’s claim therefore does not call for any interference by this Court.

9. On consideration of the rival submissions, this Court finds that the requirement of making an application for availing benefit of compassionate appointment under the State Government’s scheme is not in dispute. This is apparent from a much earlier Circular dated 12.07.1977 of the State Government regarding grant of preference in the matter of appointment to the dependent family members in case of sudden demise of the Government servant, while in harness. Proviso (4) and Clause 2 of the same reads as follows: “[fcgkj ljdkj] dkfeZd foHkkx] Kki la[;k 3@vkj1&304@73 dk0&12754] fnukad 12 tqykbZ] 1977 dh izfrfyfiA] (1) … … … (2) … … … (3) … … … (4) bl lgwfy;r dk ykHk lkekU;r;k ljdkjh lsod dh e`R;q dh frfFk ls nks o’kksZa rd izkIr jgsxkA … … … 2- fu;qfDr izkf/kdkjh vuqdEik ds vk/kkj ij fu;qfDr ds fy;s fn;s x, vkosnu dh rF;kRed tk¡p Patna High Court CWJC No.16520 of 2019 dt.12-04-2023 Lora= :i ls djus ds ckn lEc) foHkkx dk vkns k izkIr” djsxk vkSj vkns k nsus ds iwoZ foHkkx gj ekeys esa dkfeZd foHkkx dk ijke kZ ysxkA ” ” ”

10. Making of an application, that also within two years from the date of death of the employee in harness, was earlier also mandatory for availing the benefit.

11. Under a later Circular dated 25.05.1989, the time limit for making application for availing benefit of compassionate appointment was enhanced to 5 years, instead of 2 years. The requirement of making an application, however, continued, which is obvious from bare perusal of the Circular which reads as follows: “[fcgkj ljdkj] dkfeZd ,oa izkklfud lq/kkj foHkkx] Kki la[;k&3@lh 1&2030@80 dk0& 6817] fnukad 25 ebZ] 1989 dh izfrfyfiA] ” fo’k; % lsokdky esa e`r ljdkjh lsodksa ds vkfJrksa dh oxZ&3 ,oa oxZ&4 ds inksa ij vuqdEik ds vk/kkj ij fu;qfDr dh izfØ;kA ” ” funsZ kkuqlkj v/kksgLrk{kjh dks dguk gS fd dkfeZd ,oa iz kklfud lq/kkj foHkkx ds ifji= la[;k 12754] fnukad 12&7&1977 esa ljdkj }kjk lsokdky esa e`r ljdkjh lsodksa ds fdlh ,d vkfJr dks oxZ&3 ,oa oxZ&4 ds inksa ij vuqdEik ds vk/kkj ij fu;qfDr djus dk izko/kku fd;k x;k gSA bl ifji= dh dafMdk&4 esa bl lgwfy;r dk ykHk ljdkjh lsod dh e`R;q ds nks o’kksZa ds vUnj rd fu/kkZfjr dh xbZ gSA ” 2- fcgkj jkT; vjktif=r deZpkjh egkla?k rFkk fk{kd deZpkjh inkf/kdkjh leUo; lfefr ds }kjk ek¡x dh xbZ Fkh fd vuqdEik ds vk/kkj ij fu;qfDr gsrq vkosnu nsus dh fu/kkZfjr le; lhek nks o’kZ dks c<+kdj 5 ¼ik¡p½ o’kZ fd;k tk;sA bl laca/k esa mDr leUo; lfefr ,oa jkT; ljdkj ds chp fnuakd 19&11&1988 ,oa 20&11&1988 dks gq, le>kSrs ds dk;kZUo;u ds flyflys esa ljdkj us bldh lkaxksikax leh{kk dh vkSj eglwl Patna High Court CWJC No.16520 of 2019 dt.12-04-2023 fd;k fd mDr ifji= dh dafMdk&4 dks lakksf/kr djuk mfpr gksxkA ” 3- bl ifjizs{; esa mDr ifji= dh dafMdk&4 dks ljdkj }kjk fuEu:i ls la kksf/kr djus dk fu.kZ; ” fy;k x;k gS& “e`r ljdkjh lsod ds vkfJr }kjk vuqdEik ds vk/kkj ij fu;qfDr gsrq vkosnu nsus dh vof/k ljdkjh lsod dh e`R;q dh frfFk ls 5 ¼ik¡p½ o’kZ jgsxh vkSj ;g le;&lhek c<+kbZ ugha tk;xhA” mi;qZDr fu.kZ; lHkh izdkj ds vuqdEik ds vk/kkj ij gksus okyh fu;qfDr;ksa ij rkRdkfyd izHkko ls ykxw gksxkA vr% bl fu.kZ; ds vkyksd esa le; lhek {kkUr djus dk izLrko dkfeZd ,oa iz kklfud lq/kkj foHkkx dks Hkstus dh vko ;drk ugha gS] D;ksafd le;&lhek fdlh Hkh ifjfLFkfr esa 5 ¼ik¡p½ o’kksZa ls vf/kd ugha gksxhA” ” ”

12. Though the time for making application for compassionate appointment was more than doubled, from 2 years to 5 years, the requirement of making an application continued. Whatever may be the minimum requisite educational qualification, the unfortunate claimants of compassionate appointment in the State services have always been required to make an application to avail the benefit of compassionate appointment and the same is not automatic in the State services.

13. In the case of Ashish Awasthi (supra), wherein the earlier decision in the case of Indian Bank and Others versus Promila and Another reported in (2020) 2 SCC 729 has also been considered. The Hon’ble Apex Court has reiterated the settled proposition of law that compassionate appointment can be claimed Patna High Court CWJC No.16520 of 2019 dt.12-04-2023 only if there is a policy for grant of compassionate appointment existing at the time of death of employee in harness. In the said case, the date of death of the work-charged employee was

08.10.2015. On that date, the policy provided only for payment of a compensatory amount. Subsequent to demise of the work- charged employee, a circular dated 31.08.2016 was issued providing that one of the legal heir/dependent, even of a work- charged employee would be eligible for appointment on compassionate ground in case of death in harness. The petitioner therein was seeking benefit of compassionate appointment under a scheme which came into existence subsequent to demise of his father. The petitioner’s claim was thus rejected. It is in this context that the Hon’ble Apex Court has held that the policy prevalent at the time of death of the deceased is required to be considered and not the subsequent policy.

14. The facts of the instant case are different, as policy of compassionate appointment was existing at the time of death of the petitioner’s father in harness. The petitioner’s right to be considered for compassionate appointment is not in dispute. In the instant case, the issue is whether the eligibility and terms and conditions as per scheme/policy prevailing on the date of consideration of the application should be the basis for Patna High Court CWJC No.16520 of 2019 dt.12-04-2023 consideration, or not. It is not in dispute that as per the policy existing at the time of demise of the petitioner’s father in harness, he was required to make an application for compassionate appointment. The policy/norms also require possession of a particular minimum educational qualification, i.e. being a matriculate.

15. The clear and unambiguous requirement for availing benefit of compassionate appointment, as per the policy is making of an application, subject to fulfillment of the minimum educational qualification criteria (matriculation), laid down by the State’s policy.

16. Fulfillment of such requirement has recently been emphasized by the Hon’ble Apex Court in the case of Ms Madhuri Maruti Vidhate (supra). After considering earlier precedents, the Hon’ble Apex Court has held that appointment on compassionate grounds is an exception to the general rule of equality in the matter of employment. Therefore, no aspirant has a right to compassionate appointment and the same can be claimed only on fulfilling the norms laid down by the State’s policy and/or satisfaction of the eligibility criteria as per the policy. The norms prevailing on the date of consideration of the application has been held to be the basis for consideration of claim for compassionate Patna High Court CWJC No.16520 of 2019 dt.12-04-2023 appointment, as per earlier decision of the Hon’ble Apex Court in the case of N.C. Santhosh versus The State of Karnataka reported in (2020) 7 SCC 617.

17. In the case of Raj Kumar (supra) also the Hon’ble Apex Court in para 12 has held that application for compassionate appointment has to be considered as per scheme in force when the application is considered. Para 12 reads as follows:- “ 12. Obviously, therefore, there can be no immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, up to the date of consideration may have to be taken into account. As none of the applicants under the scheme has a vested right, the scheme that is in force when the application is actually considered, and not the scheme that was in force earlier when the application was made, will be applicable.’’

18. In the instant case, petitioner made an application for appointment on compassionate ground nearly two years after the minimum requisite educational qualification was amended to matriculate. Petitioner, therefore, cannot be permitted to claim that he should be considered as per earlier minimum requisite qualification prevailing on the date of unfortunate demise of his father, while in harness. Patna High Court CWJC No.16520 of 2019 dt.12-04-2023

19. In view of the precedents considered above, the mandatory prescription for making of an application; and the time limit for making applications, this Court would have no hesitation in concluding that the minimum requisite qualification at the time of application/ consideration would be relevant for examining the eligibility of applicants for compassionate appointment. The amendment in the minimum requisite qualification under circular dated 12.12.2012, therefore, has rightly been held applicable to such cases where application has not been made prior to issuance of the amendment, dated 12.12.2012. This aspect also stands clarified by Clause 4 of circular dated

04.02.2015 issued by the State Government, relevant extract of which has been noted above.

20. The petitioner made his application for compassionate appointment on 29.09.2014, when the minimum requisite educational qualification was matriculate. The petitioner was only VIII pass and admittedly did not possess the minimum requisite educational qualification as per circular dated

12.12.2012. In view of the settled legal position based on judgments of the Hon’ble Apex Court in the recent case of Ms. Madhuri Maruti Vidhate (supra); as also decision of the Hon’ble Apex Court in the case of Raj Kumar (supra), this Court finds no Patna High Court CWJC No.16520 of 2019 dt.12-04-2023 infirmity in rejection of petitioner’s claim for compassionate appointment for want of minimum educational qualification of Matriculation (X pass).

21. This writ petition is, thus, devoid of merit and the same is dismissed. (Madhuresh Prasad, J) Shashank/ M.E.H.- AFR/NAFR CAV DATE Uploading Date Transmission Date AFR 29.03.2023 29.06.2023 NA