1. Heard learned counsel for the parties.
2. In this writ petition, the prayer of the petitioner reads as follows:
"1(i) For quashing the proceeding of serial No.25 of proceeding dated 16.11.2011 of District Compassionate Committee, Darbhanga as contained in 'Annexure-8" by which it was wrongly taken decision against the petitioner for rejecting the grievances of the petitioner.
(ii) For quashing the order of Additional Collector, Darbhanga vide letter no. 634 (Establishment) dated 2.4.2012 by which who has intimated to petitioner that the application for appointment on basis of compassionate appointment has been rejected on 16.11.2011 by District Compassionate Committee, Darbhanga on the basis of Sankalp no. 3927 dated 31.03.2011 of Government of Bihar.
(iii) For commanding the respondents to act properly upon the Government instruction of Sankalap No. 2937 dated 31.03.2011 as to clearify by the Joint Secretary of General Administration Department, Government of Bihar vide letter no. 17948 dated 31.12.2012 and to consider the case of the petitioner for appointment on the basis of compassionate ground after death of his father namely Brahamdeo Thakur in his service period and who is lovely Bread earner of the family of the petitioner."
3. Learned counsel for the petitioner, in support of the aforementioned prayer, has submitted that the enhancement in qualification for appointment on Class-IV (Group D) post, having been notified by the Finance Department on 31.03.2011 from Class-8 to Class-10, could not have adversely effected the pending application of the petitioner and in this regard reliance has been placed not only on a Government circular dated 31.12.2012 but also on an unreported judgment of this Court dated 13.02.2012 in C.W.J.C. No. 961 of 2012 (Vikash Kumar v. State of Bihar and Ors.).
4. Learned counsel for the State, on the other hand, has submitted that since the petitioner did not possess the requisite qualification for a Class-IV (Group D) post on the date of consideration of his case for appointment on compassionate ground, no error can be said to have been committed by the District Compassionate Appointment Committee in rejecting the claim for appointment of the petitioner on compassionate ground.
5. The facts, which are not in dispute and would be sufficient to be disposed of this writ petition, lie in a very narrow compass. The father of the petitioner was a permanent Government servant working on the post of Paridhapak (Dresser) in a Government Dispensary under the Health Department of the Government of Bihar and had died in harness on 31.12.2008. The petitioner, being the eldest son, thereafter had filed his application for compassionate appointment on 12.10.2009, wherein he had enclosed his admit card and mark sheets of Matriculation examination in support of proof of age as also his being educationally qualified for being appointed on Class-IV post.
6. It has to be noted that as on 31.12.2008 or even the date on which the petitioner had filed his application for appointment on compassionate ground i.e. 12.10.2009, the maximum age for appointment in Government service for a person belonging to unreserved (general) category was only 35 years and the qualification for appointment on Class-IV (Group D) post was Class-VIII pass.
7. When the case of the petitioner was forwarded for consideration for his compassionate appointment to the District Compassionate Appointment Committee, it was found that the petitioner had already exceeded the maximum age limit of appointment in Government service and as such the Additional Collector, Darbhanga, by his letter dated 12.08.2010, had recommended for condoning the maximum age in the case of the petitioner, by making a request to the Director-in-chief of the Health Services, being the Head of the Department, to pass necessary order for condoning the age limit of the petitioner. This recommendation of the Additional Collector, Darbhanga was also separately reiterated by the Civil Surgeon, Darbhanga to the Director-in-chief in his letter no. 2502 dated 18.08.2010. The Director-in-chief of the Health Services ultimately, in capacity of the Head of the Department, had passed an order condoning the maximum age limit of the petitioner in terms of Rule 54 of the Bihar Service Code and the Government Circular No. 8093 dated 25.07.1998 and to that extent it would be relevant to quote the order of the Director-in-chief of the Health Services, Government of Bihar, dated 07.07.2011 which reads as follows:
8. Thus, when the petitioner had crossed the hurdle in respect of condonation of his age limit for entering in Government service in terms of the aforementioned order of the Director-in-chief of the Health Services dated 07.07.2011, his case for compassionate appointment was placed before the District Compassionate Appointment Committee in the meeting held on 16.11.2011 but the
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Committee had rejected the case of the petitioner on the ground that the petitioner did not fulfil the requisite educational qualification as laid down for Class-IV (Group D) post because he was only a non- matric and to that extent it would be also necessary to quote the relevant portion of the resolution passed in the meeting on 16.11.2011 by the District Compassionate Appointment Committee, Darbhanga, which reads as follows:
9. It is this decision along with the consequential communication of the Additional Collector, Darbhanga in his letter dated 02.04.2012, which have been assailed in this writ petition.
10. In the considered opinion of this Court, the only reason given by the District Compassionate Appointment Committee and the Additional Collector, Darbhanga in the impugned decision/orders is based on the circular of the Finance Department dated 31.03.2011 whereby and whereunder the qualification for the post of Class-IV (Group D) post services has been enhanced to Class-X pass as against the earlier one of being only Class-VIII pass.
11. It has to be, however, taken into note that this circular of the Finance Department was only an executive order and was not capable of supplanting the statutory rules. In fact, such amendment in Group D Recruitment Rules was made only by a notification dated 12.12.2012 and, therefore, the date on which the petitioner's case was considered and rejected, this executive order of the Finance Department dated 31.03.2011, without there being any amendment in the rule, could not have been made applicable. It was precisely for this reason, the General Administration Department had to issue a clarification by its letter dated 31.12.2012 wherein it was stated that all the pending cases either prior to 31.03.2011 or from 31.03.2011 up to 12.12.2012 when the amendment in the Group-D Recruitment Rules was brought into force, would be governed by the earlier qualification laid down in the rules.
12. To that extent, it would be useful to quote the Government letter dated 31.12.2012, which reads as follows:
13. In view of the aforementioned clarification, this Court will have no difficulty in holding that the impugned resolution passed by the District Compassionate Appointment Committee on 16.11.2011 and the consequential communication dated 02.04.2012 are wholly unsustainable.
14. It has to be kept in mind that the petitioner's application before the District Compassionate Appointment Committee had remained pending since 28.04.2010 and, in fact, it was under the decision of the Committee that the Additional Collector, Darbhanga, by his letter dated 12.08.2010, had recommended for condonation in the maximum age limit of the petitioner for being appointed on a Class-IV (Group D) post. Thus, in view of the letter of the Additional Collector, Darbhanga dated 12.08.2010 and the letter of the Civil Surgeon dated 18.08.2010, both addressed to the Director-in-chief, Health Services, for condoning the maximum age limit for appointment of the petitioner in Government service as also the exercise of power by the Director-in-chief in terms of Rule 54 of the Bihar Service Code, as is fully borne out from the order of the Director-in-chief, Health Services dated 07.07.2011, already quoted above, there would be no difficulty in coming to the conclusion that the case of the petitioner was pending for consideration and was not to be adversely affected by the decision of the Finance Department dated 31.03.2011 enhancing the educational qualification for appointment on Class-IV (Group D) post from Class-VIII pass to Class-X pass.
15. The aforesaid view of this Court gets support from the judgment in the case of Vikash Kumar (supra), wherein it was held as follows:
The impugned order dated 10.12.2011 itself states that the Finance Department circular no. 2937 dated 31.3.2011 clarified that œfuture appointments? on Grade IV posts shall be considered on compassionate ground only of Class X pass. The Court is at loss to understand how the respondents are interpreting it to have retrospective effect when the circular itself never intended any retrospective effect.
A claim for compassionate appointment has to be considered in accordance with the guidelines/criteria as may exist on the date of death. Thus, an ineligibility to be considered on the date of death, shall not vest a claim to be considered for compassionate appointment by reason of any subsequent policy. Similarly the claim to be considered valid in the circular on the date of death, cannot be affected by any subsequent decision.
16. In view of what has already been held in the case of Vikash Kumar (supra) and also has been correctly appreciated by the Government itself in its clarificatory letter dated 31.12.2012, already quoted above, there would be no difficulty in holding that the petitioner will be entitled for appointment on compassionate ground even on a Class-IV (Group D) post even if he has not passed Class-X examination inasmuch as there is no denial to this fact that the petitioner having been appeared in the Matriculation examination way back in the year 1989 and had failed in such examination, will be deemed to have passed at least Class-IX examination whereas the requisite qualification at the relevant point of time was Class-VIII pass.
17. When the father of the petitioner had died on 31.12.2008 or when the petitioner had filed his application on 12.10.2009 or even when such application was received before the District Compassionate Appointment Committee on 28.04.2010 or when the Additional Collector, Darbhanga had sought relaxation/condonation in the maximum age limit of the petitioner vide his letter dated 12.08.2010, the prescribed qualification for appointment on Class-IV (Group D) post was only Class-VIII pass.
18. By now, it is well settled that a subsequent change in the rule after commencement of the process of appointment will not adversely affect such process of appointment which will have be made only in accordance with rules which were prevailing at the time of commencing of process of appointment.
19. In the case of the petitioner, such process of appointment had commenced, if not on any other date, at least on 12.08.2010 when on receipt of the application of the petitioner by the District Compassionate Appointment Committee on 28.04.2010, it had sought to seek relaxation in the maximum age limit of the petitioner by making a recommendation through the letter of the Additional Collector, Darbhanga to the Director-in-chief, Health Services.
20. Reference in this regard can be made to the judgment of the Apex Court in the case of P. Mahendran and Ors. v. State of Karnataka and Ors. reported in AIR 1990 SC 405 wherein the old line of cases by the Apex Court were once again reiterated to the fact that the appointment on a post will be governed by the rules which were in force at the time of process of commencement of appointment. Thus, no two views can be taken in the case of the petitioner that he was eligible for his appointment on a Class-IV (Group D) post and could not have been refused for such appointment after relaxation was given by the Director-in-chief, Health Services, who for the reasons best know to him had consumed a period of eight months only in giving such relaxation vide his order dated 07.07.2011.
21. A question would arise that if the recommendation of the Additional Collector, Darbhanga dated 12.08.2010 for condonation of the age limit of the petitioner had been allowed prior to 31.03.2011, could the petitioner be deprived for his appointment on compassionate ground on the basis of the letter of the Finance Department dated 31.03.2011, which was out and out only prospective in nature. An answer will have to be given in negative because once a process of appointment begins the qualification and other requirement has to be followed which were prevailing on that date and cannot be in any way adversely effected by any change in rule either in respect of qualification or other requirement.
22. Thus, for the reasons indicated above, the impugned decision of the District Compassionate Appointment Committee dated 16.11.2011 so far it relates to the petitioner and the consequential order of the Additional Collector, Darbhanga dated 02.04.2012 are hereby quashed and the Collector of Darbhanga District is hereby directed to take immediate steps for processing the appointment of the petitioner in terms of the Government decision dated 31.12.2012 which only envisages consideration in respect of appointment on compassionate ground as with regard to pending cases between 31.03.2011 to 11.12.2012.
23. Such an exercise by all the competent authorities, be it Collector of Darbhanga District or the Principal Secretary of the Finance Department or the Secretary to the Health Department, must be completed, after ensuring issuance of appointment letter to the petitioner, within a period of three months from the date of receipt of a copy of this order and it will be the duty of the Civil Surgeon, Darbhanga to make it sure that the appointment of the petitioner, after completing the requisite prescribed procedure, is made immediately on expiry of the period of three months.
24. Any further delay in effect would itself negate the very purpose of the compassionate appointment inasmuch as a period of more than five years, since the date of filing of the application by the petitioner, has already expired by way of creating unnecessary hurdles in the appointment of the petitioner.
25. With the aforementioned observation and direction, this writ petition is allowed.
26. There would be, however, no order as to costs.