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Anamika Rani Vs. the State of Bihar and Others - Court Judgment

LegalCrystal Citation
CourtPatna High Court
Decided On
Case NumberCivil Writ Jurisdiction Case No. 17038 of 2013
Judge
AppellantAnamika Rani
RespondentThe State of Bihar and Others
Excerpt:
.....court, while affirming the order of this court and rejecting the claim of appointment of sanjay kumar on compassionate ground, had held as follows: "3. ¦ this court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the breadearner who had left the family in penury and without any means of livelihood¦." in view of the aforementioned binding precedent of the apex court in the case of jagdish prasad (supra), pushpendra kumar (supra) and sanjay kumar (supra) as also of the division bench of this court in the case of anil kumar singh (supra), this court, sitting signally, will have no option but to hold that the case of the petitioner for her appointment on.....
Judgment:

1. Heard learned counsel for the petitioner and learned counsel for the State.

The prayer of the petitioner in this writ application reads as follows:

"1(i) To quash the letter no. 5512 dated 22.8.2008 issued by District Superintendent of Education, Patna, whereby and whereunder he has rejected the claim of the petitioner for appointment on compassionate Ground. (Annexure-7)

(ii) To make appointment on class three post to this petitioner as she was only child of her deceased mother and has attained the majority and posses requisite qualification."

Learned counsel for the petitioner, in support of the aforementioned prayer, has submitted that the impugned order passed by the District Superintendent of Education, Patna (hereinafter referred to as the D.S.E.) dated 22.08.2008 is factually incorrect and legally impermissible inasmuch as the petitioners appointment on compassionate ground could not have been refused on the ground that she was a minor on the date of death of her mother. In this regard, he has emphasized on the aspect that when the mother of the petitioner, who was the bread earner of the family and was working as a teacher, had died in harness on 17.10.1994, an application for compassionate appointment on her behalf had been filed by her maternal uncle on 03.12.1994 as the petitioner was a minor at that point of time and had been under the guardianship of her aforesaid maternal uncle who was appointed as a legal guardian by the Principal Judge, Family Court, Patna.

In the background of the aforementioned fact, it has been emphasized that the impugned order passed on 22.08.2008 rejecting the claim of the petitioner for appointment on compassionate ground, on a day on which the petitioner had definitely become major, would not only be against the spirit of the Government policy of appointment dated 05.10.1991 but would also defeat the very purpose of compassionate appointment. Reliance in this regard has been placed on a judgment of this Court in the case of Rajesh Kumar vs. State of Bihar and Ors. reported in 1999(1) PLJR 491 as also an unreported judgment of this Court dated 27.08.2013 in CWJC No. 15320 of 2008. Learned counsel for the petitioner had also sought support to his submission by referring to the judgment of the Apex Court in the case of Syed Khadim Hussain v. State of Bihar and Ors. reported in (2006) 9 SCC 195.

Learned counsel for the State, on the other hand, has defended the decision of the competent authority in refusing appointment on compassionate ground of the petitioner by pointing out that at the time of death of the mother of the petitioner, who was the Government servant and had died in harness and in whose place the petitioner was seeking compassionate appointment, she (the petitioner) was only aged about seven years and thus chould not have been appointed because she did not attain the majority within the prescribed period of limitation of five years as per the Government policy dated 05.10.1991. In this regard, he has explained that since the mother of the petitioner had died on 17.10.1994, the petitioner could have filed her application for her compassionate appointment till 16.10.1999 and in such case her case for compassionate appointment could have been considered but as the petitioner did not become major even till 17.10.1999 and, in fact, she was aged about only 12 years as on 17.1.1999, on account of her date of birth being 27.11.1987, her appointment was impermissible because she was ineligible to be appointed in terms of the Government policy. Reliance in this regard has been placed by him on a Division Bench judgment of this Court in the case of Anil Kumar Singh vs. State of Bihar and Ors. reported in 1993(1) PLJR 414.

In the considered opinion of this Court, this writ petition must fail only on account of delay. As noted above, the mother of the petitoenr had died on 17.10.1994 and this writ petition has been filed for a direction for appointment of the petitioner on compassionate ground after more than 19 years of her death on 27.08.2013. Thus, this delay of 19 years has not at all been explained by the petitioner, itself would be sufficient to dismiss this writ petition.

There is yet another aspect which would disentitle the petitioner to claim relief under Article 226 of the Constitution of India inasmuch as the petitioner in this case has assailed an order dated 22.08.2008 by filing this writ petition on 27.08.2013. This delay of five years in assailing the order has also nowhere been explained and, therefore, this delay of five years would itself become fatal.

Let it be also noted that the order dated 22.08.2008 in fact is not an order of refusal of compassionate appointment of the petitioner rather it is a communication by the D.S.E, Patna to the petitioner in response of her application dated 29.07.2008 seeking certain information under Right to Information Act. In that communication, when the petitioner had wanted to know as to why her appointment on compassionate ground in terms of her application filed in the month of September, 2008, had not been allowed, on answer was given by the D.S.E , Patna was that as the petitioner was minor aged about 11 years (in the year 1998) and she was only a student of class five, her appointment on compassionate ground could not be made because being a major was the condition precedent for appointment in Government service. This communication order dated 22.08.2008 obtained by the petitioner under Right to Information Act therefore, cannot be said to be the impugned order rejecting the claim of the petitioner for compassionate appointment inasmuch as her such application filed in the year 1998 had already stood automatically rejected in terms of the requirement of Government policy.

As a matter of fact, the petitioner herself did not raise any issue for next ten years between 1998 to 2008 and had made first communication to the D.S.E. on 29.07.2008 by filing an application under the Right to Information Act seeking the reason for refusal of appointment on compassionate ground and thereafter having slept over the same for another five years i.e. from 22.08.2008 to 27.08.2013, has filed this writ petition. It, therefore, becomes very clear that the petitioner has been virtually whipping a dead horse inasmuch as she had not claimed her appointment on compassionate ground in terms of the Government policy dated 05.10.1991 till 2008 becauise she was neither eligible in terms of her age nor had the qualification. The Government policy dated 5.10.1991 however requires a person in order to be eligible, to be not only major but also have qualification for the post in question till the last date of filing of the application i.e. within a period of five years of death of the concerned Government servant dying in harness.

As noted above, since the mother of the petitioner had died on 17.10.1994 and the application, in terms of the policy of the State Government for compassionate appointment dated 05.10.1991, could have been filed by the petitioner till 16.10.1999 on which date she was neither major in view of her date of birth being 27.11.1987 nor even had passed Class-8 examination which was the minimum qualification even for a Class-IV post and thus she was out and out ineligible for appointment on compassionate ground.

It is in fact this aspect of the matter which has been decided by the Division Bench of this Court in the case of Anil Kumar Singh (supra) wherein a number of similar writ petitions were considered in the light of the Government policy on compassionate appointment of the Government of Bihar and it was held as follows:

"26. From the conspectus of the aforesaid decisions, it is clear that the policy decision adopted by the State of Bihar for employment to the dependants of a deceased government servant, the following conditions must be fulfilled.

(i) "only a dependant within the meaning of the said circulars may be provided employment subject to the conditions that the family fell within the low income so that it is not in a position to maintain itself.

(ii) "at least one of the dependants of the deceased employee must be eligible for appointment either on the date of death of the deceased employee or within the period when the application for appointment on compassionate ground could be filed in terms of the circular letter no. 12754 dated 12.7.77 within two years and in terms of circular letter no. 6817 dt. 25.5.89 becomes 5 years."

(iii) from the tenure of the aforementioned circular letters it is evident that the time limit fixed can not be altered nor any relaxation possible in relation thereto.

(iv) Although, the provisions for the prescribed time limit has been done away with by reason of 1991 circular, Clause 10 thereof specifically provides that the said circular would be applicable only from the date of issuance thereof and in case wherein death has taken prior thereto, the same shall not be considered and/or re-considered.

(v) the appointment on compassionate ground must be upon compliance with all the terms and conditions laid down therein.

27. In view of the aforementioned discussions as also the decisions of the Supreme Court as noticed hereinbefore, there can not be any doubt that the observations made in Brajendra Poddar's case {1990Vol. 2 PLJR 668}, does not lay down any binding precedent. The said decision has to be read in the context of the circulars and in peculiar facts and circumstances of that case as it had clearly been stated therein that the State in that case was in a position to relax the age of the applicant.

28. It may further be pointed out that in that case at the time of consideration of the matter of appointment on compassionate ground, that was pending consideration before the State, the same was not finally rejected when the aforementioned circular letter no. 6817 dated 25.5.89 had been issued.

29. it has further to be borne in mind that by reason of the aforementioned circular letters not only the widow or the son but even the unmarried daughter and widowed daughter-in-law are entitled for consideration for appointment on compassionate ground. In that view of the matter, even if one of the dependants of the deceased family who is not eligible for appointment keeping in view of the age, the qualification and other consideration, one of the other dependants as mentioned in the said circular may be appointed on compassionate ground. It would not be, therefore, correct to say that only because the son was a minor, he could file an application for appointment even after attaining majority. In fact, if such an interpretation is given the same would frustrate the very object and purport of the policy decision of the State in as much as thereby no immediate relief to the family in distress can be provided. If any such application is entertained after a long delay, by that time not only the existing vacancies may be filled up by regular appointment, but also other cases of similar nature may arise where grant of immediate relief by providing employment to the dependant of the deceased employees may crop up. What is material for consideration is the time when the relief is to be granted to a family in distress and not to reserve a job for one of the dependants.

30. It is pertinent to note in Bijay Kumar Sinha's case reported in 1991 Vol. 1, P.L.J.R. 316, the vires of the circular dated 12.7.1977 was upheld holding:

"The impugned circular, however, is not a bald preference to the dependants of the employees of the State Government. It has not gone to the descent of the persons preferred for appointment. It has taken notice of a sudden demise resulting in cessation of source which had earned bread for them. It has emphasized that those who fail in an income group below Rs. 6000/- per year and lost their bread earner should be preferred. It is no a general concession to all the dependants of the deceased employees. It is confined to the selection to one to compensate the loss by giving employment to him. If one bread earner is there, another is not allowed to enter in the preference. The circular is, thus, one which has conferred a preferential right to appointment to the dependants of a deceased employee who died in harness by identifying the economic backwardness and also the loss which unless compensated shall force the family to go further down. The object, thus, it may be stated at the cost of repetition is to grant immediate relief and not after a number of years.

31. This aspect of the matter as also the decision of the Supreme Court in Susma Gosain case had not been taken note of by this Court in Brajendra Pd. Poddar v. State of Bihar, 1990 Vol. 2, P.L.J.R. 668.

As a matter of fact, the Division Bench, in the case of Anil Kumar Singh (supra), having laid down the aforesaid principles, had also individually examined all the cases and had dismissed CWJC No. 7411 of 1992 on the ground that the petitioner of that case was only 12 years old when his father had died and could not become major within the prescribed period of limitation which was only two years. Similarly, CWJC No. 6733 of 1992 was also dismissed because the petitioner in that case was aged about only nine years old and as such his mothers application for appointment of the petitioner of that case was held to be not maintainable because the petitioner did not attain the age of majority till the year 1988. Yet again, CWJC No. 5873 of 1992 was dismissed only because the petitioner of that case was only ten years old at the time of death of his father and did not attain the age of majority within the period of limitation. The Division Bench, in the case of Anil Kumar Singh (supra), had also dismissed the CWJC No. 7272 of 1992 by recording a finding that the petitioner of that case was aged about only 11 years old at the time of death of his father and did not become major within the period of limitation.

Let it be noted that the aforesaid view taken by the Division Bench in the case of Anil Kumar Singh (supra) has also subsequently been in a case of compassionate appointment of the State of Bihar under the same policy has been approved by the Apex Court in the case of Jagdish Prasad v. State of Bihar and Anr. reported in (1996) 1 SCC 301. In that case, the Apex Court had noted that the petitioner Jagdish Prasad was only four years old at the time of his father died in harness in 1971 and he had filed the writ petition after attaining the majority in 1994 for a direction to appoint him on compassionate ground. The High Court had dismissed the writ petition by an order dated 5.07.1995 in C.W.J.C. No. 2390 of 1994 and the appeal was carried to the Apex Court. It was held : "3. It is contended for the appellant that when his father died in harness, the appellant was minor; the compassionate circumstances continue to subsist even till date and that, therefore, the court is required to examine whether the appointment should be made on compassionate grounds. We are afraid, we cannot accede to the contention. The very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. Since the death occurred way back in 1971, in which year the appellant was four years old, it cannot be said that he is entitled to be appointed after he attained majority long thereafter. In other words, if that contention is accepted, it amounts to another mode of recruitment of the dependent of a deceased government servant which cannot be encouraged, de hors the recruitment rules."

Yet again, the Apex Court had taken a similar view again in relation to a case of compassionate appointment under the same policy of the State of Bihar in the case of Director of Education(Secondary) and Anr. vs. Pushpendra Kumar Ors. reported in (1998) 5 SCC 192 which was also followed by the Apex Court in the case of Sanjay Kumar vs. State of Bihar and Ors. reported in (2000) 7 SCC 192. In that case, the petitioner Sanjay Kumar was aged about ten years old when his mother has died while she was working as an Excise Constable. The petitioner Sanjay Kumar had made an application on 02.06.1988 soon after the death of his mother seeking compassionate appointment. That was rejected on 10.12.1996 and when a second application was also rejected on 21.04.1997, the petitioner Sanjay Kumar had moved this Court by placing reliance on a judgment of this Court in the case of Chandra Bhushan Singh v. State of Biharand Ors. reported in 1997 (1) PLJR 626, but his writ petition was dismissed and the appeal also against the order of the learned single Judge was affirmed whereafter the petitioner had gone to the Apex Court. The Apex Court, while affirming the order of this Court and rejecting the claim of appointment of Sanjay Kumar on compassionate ground, had held as follows:

"3. ¦ This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the breadearner who had left the family in penury and without any means of livelihood¦."

In view of the aforementioned binding precedent of the Apex Court in the case of Jagdish Prasad (supra), Pushpendra Kumar (supra) and Sanjay Kumar (supra) as also of the Division Bench of this Court in the case of Anil Kumar Singh (supra), this Court, sitting signally, will have no option but to hold that the case of the petitioner for her appointment on compassionate ground is wholly misconceived both on facts and in law.

As a matter of fact, this Court also following the ratio of the aforesaid Division Bench, in the case of Anil Kumar Singh (supra), has dismissed similar two writ petitions by order dated 28.03.2011 in CWJC No. 1037 of 2001 (Md. Badiuzzama vs. State of Bihar and ors.) and by another order dated 22.04.2011 in CWJC No. 6285 of 2008 (Ram Kishore Verma vs. State of Bihar and Ors.).

In view of the above, this Court would find it difficult to follow the judgment of the learned single Judge in the case of Rajesh Kumar (supra) which does not even take note of the Division Bench judgment in the case of Anil Kumar Singh (supra) and is thus per incurium. As a matter of fact, even the other decision of the learned single Judge in the case of Chanda Devi and Anr. vs. State of Bihar and Ors. (C.W.J.C. No. 15320 of 2008 disposed of on 27.08.2013) is per incurium as the same also does not take into consideration the ratio of the binding decision of the Division Bench in the case of Anil Kumar Singh (supra). Moreover, from the facts of Chanda Devi (supra), it would also transpire that actually the brother of the deceased constable, who had died in harness on 16.03.1995, was appointed by playing a fraud and when such compassionate appointment of the brother of the constable was cancelled in the year 2001 and had acquired finality after dismissal of his writ petition on 29.08.2005 that the case of the son of the constable for appointment had emerged. Therefore, whatever was said in the case of Chanda Devi (supra) is even otherwise clearly distinguishable on facts.

The reliance placed by the learned counsel for the petitioner on the judgment of the Apex Court in the case of Syed Khadim Hussain (supra) is also wholly misplaced inasmuch as paragraph no. 6 of the judgment would go to show that after the death of the Government servant in harness, the widow had submitted the application in time but that was rejected on a technical ground that her application was not in a prescribed format. Subsequently, the son of the petitioner, who was aged about 13 years at the time of death of his father, had filed his application and when the same was rejected on the ground of his being minor, the Apex Court, basically by taking into consideration that the mothers application should not have been rejected on technical ground, had passed an order directing for appointment of the petitioner of that case on compassionate ground as would be apparent from the following passage of that judgment.

Para- 6 "¦.. In the peculiar facts and circumstances of this case, we direct the respondent authorities to consider the application of the appellant and give him appropriate appointment within a reasonable time at least within a period of three months. The appeal is disposed of in the above terms. No costs."

(underlining for emphasis)

As noted above, the Apex Court in the case of Syed Khadim Hussain (supra) had not only considered the peculiar facts and circumstances of the case of that case, but had also issued a direction for appointment of the petitioner of that case in exercise of its power conferred under Article 142 of the Constitution of India. By now, it is however well settled that such order of the Apex Court was passed in the peculiar facts and circumstances of a particular case in exercise of power under Article 142, cannot be used as a precedent for other cases.

Thus, both on the ground of delay of more than 19 years since the death of the mother of the petitioner on the part of the petitioner in moving this Court as also on the merits of the case of the petitioner, this Court would find it impossible to issue direction for appointment of the petitioner on compassionate ground. The death of the mother of the petitioner had taken place some 20 years back and if the petitioner has been able to survive in these 20 years on the basis of the family pension as also the death-cum-retirement benefit of her mother given to her in capacity of the only child of her deceased mother. She cannot be said to be in the state of penury or without means of livelihood as was also laid down by the Apex Court in the case of Umesh Kumar Nagpal vs. State of Haryana and Ors. reported in (1994) 4 SCC 138 in the following words:

"¦.. 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 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¦¦."

Thus, in view of the aforesaid discussion no direction can be issued now for appointment of the petitioner on compassionate ground only because the petitioner has become wiser by filing this writ petition in the year 2013 after more than 19 years of the death of her mother only after passing her Matriculation examination in the year 2004, Intermediate examination in the year 2006 and the B.A. (Hons) examination in 2009.

That being so, this Court does not find any merit in the writ petition and the same is, accordingly, dismissed.


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