IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6741 of 2008 Md. Naushad, son of late Md. Kazim, Resident of Village Karisanna, P.S. Silaw, Distt. Nalanda. -------- Petitioner Versus 1. The State of Bihar. 2. The State of Bihar through the District Magistrate, Nalanda. 3. The District Education Officer, Nalanda. 4. The District Education Superintendent, Nalanda. 5. The Block Education Extension Officer, Rajgir-I, Distt. Nalanda. --------- Respondents ----------- 2 25.4.2011 Heard learned counsel for the petitioner and counsel for the State. The petitioner seeks a direction for appointment on compassionate ground by taking a plea that his father had died in harness on 6.11.1994 and that the authorities, despite filing of an application by the petitioner within the prescribed period of five years on 15.9.1999, had taken no decision. Referring to the counter affidavit, he would submit that though the respondents had taken a plea of such consideration by the District Compassionate Appointment Committee in the meeting held on 21.5.2003, rejecting the case of the petitioner on account of pendency of a criminal case but, then, the same was also never communicated to the petitioner and, in fact, even the said 2 criminal case had ended in acquittal of the petitioner on 26.10.2005. Counsel for the State, on the other hand, would submit that the Government policy itself lays down the condition of eligibility and disability and one of them clearly lays down that the pendency of a criminal case wherein conviction could be for a period of seven years or more by itself is a sufficient ground for making a person ineligible for appointment on compassionate ground. In this context, he has also referred to the fact that the petitioner was made accused for offence under Section 376/511 of the Indian Penal Code, which was of course punishable with an imprisonment of more than seven years. Having considered the aforementioned rival contentions as also taking into account that the underlined portion of the Government circular dated 5.10.1991 in its paragraph nos. 1 & 2, quoted herein below, ¼1½ fdudk p;u gks ldrk gS & ¼d½ vuqdEik ds vk/kkj ij fu;qfDr dk ykHk oSls e`r ljdkjh lsod ds ,d gh vkfJr dks vuqekU; gksxk ftudh e`R;q lsokdky esa gqbZ gSA ¼[k½ bl gsrq ljdkjh lsod mls gh ekuk tk;sxk ftldh fu;qfDr] Lohd`r in ds fo:) fof/kor dh xbZ gksA ¼x½ lsokdky esa e`r ljdkjh lsodksa ds vkfJrksa dks gh vuqdEik ds 3 vk/kkj ij fu;qfDr dh tk ldrh gSA vkfJr ds vurxZr dsoy iq=] vfookfgr iq=h rFkk iq= dh fo/kok iRuh lfEefyr jgsxhA nÙkd iq=] nkekn] Hkrhtk vkfn dks vkfJr ugha ekuk tk;sxkA ¼?k½ vuqdEik ds vk/kkj ij fuEufyf[kr izkFkfedrkvksa ds vuqlkj muds vkfJr dh fu;qfDr dh tk;sxhA ¼i½ e`r lsod dh iRuh ¼ii½ iq= ¼iii½ vfookfgr iq=h ¼iv½ iq= dh fo/kok iRuh ¼M-½ ;fn ifr iRuh nksuks ljdkjh lsok esa gks vkSj fdlh ,d dh e`R;q gks tk;s rks oSlh fLFkfr esa vuqdEik ds vk/kkj ij fu;qfDr dk ykHk muds ifjokj ds fdlh vkfJr dks ugha feysxkA ¼p½ ;fn dksbZ efgyk ljdkjh lsok esa gks vkSj muds ifr fdlh ljdkjh lsok esa dk;Zjr ugha gksa] rks efgyk ljdkjh lsod dh e`R;q mijkUr muds ifr dks vuqdEik ds vk/kkj ij fu;qfDr dk ykHk izkIr gks ldsxkA ¼2½ fdudk p;u ugha gks ldrk gS%& fuEukafdr dksfV;ksa esa ls fdlh Hkh dksfV es vkus okys O;fDr dk vkosnu izkjafHkd rkSj ij gh vLohd`r dj fn;k tk;sxk] ;fn [k.M ^[k* vkSj ^x* ds lEcU/k esa dksbZ izfrdwy 'kiFk&i= ugha fn;k x;k gksA ¼d½ ;fn vkosnd ds izLrkfor in gsrq ljdkj }kjk fu/kkZfjr vgZrk izkIr ugha gksA ijUrq efgyk ds ekeys esa lkbZfdy pykus dh vgZrk dks {kakr le>k tk;sxkA ¼[k½ ;fn vkosnd dks fdlh laKs; vijk/k ds vijk/kh ds :i esa U;wure 6 ekg ds dkjkokl dk n.M gqvk gSA ¼x½ ;fn vkosnd ij ,slk eqdnek U;k;ky; ds fopkjk/khu gks ftlesa mUgsa e`R;w n.M vFkok lkr o"kZ ls vf/kd ds dkjkokl dh ltk fn;s tkus dh lEHkkouk gks] vFkok mDr okn ds fuLrkj gksus ij ;fn vkosnd dks 6 ekg vFkok mlls vf/kd dk n.M fn;k tk;A** (emphasis supplied) containing a clause of disqualification and laying down that pendency of a criminal case relating to an offence which could lead to conviction for a period of seven years would 4 itself disentitle him from having appointment in government service on compassionate ground, this Court would find that the rejection of the case of the petitioner by District Compassionate Appointment Committee in the meeting held on 21.5.2003 does not suffer from any error, inasmuch as, the petitioner was made accused in connection with an offence under Section 376 of the Indian Penal Code on 15.5.2002 and therefore, the decision taken on 21.5.2003 during the pendency of the Trial, being in line of the Government policy, cannot be faulted in law. Rest of the submissions of the learned counsel for the petitioner that after acquittal of the petitioner on 26.10.2005, he will be deemed to have become eligible and as such, his case should have been reconsidered for appointment on compassionate ground, has to be only noted for its being rejected. In this connection this court may usefully refer to the judgment of Apex Court in the case of Delhi Administration Vs. Sushil Kumar reported in (1996) 11 S.C.C. 605. In the case of Sushil Kumar who was setting appointment in government service after his acquittal in 5 a trial for offences punishment under Section 304/324/34 I.P.C. the Apex Court had held as follows:- "S.304. Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. S.324. Whoever, except in the case provided for by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or 6 to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. S.34. When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." The appointment by way of compassionate ground is a one time consideration for extending immediate relief to the family members on account of death of the Government servant. Admittedly, the death of the father of the petitioner had taken place in the year 1994 and the petitioner himself had filed an application almost after five years of the death of his father. While the case of the petitioner was being considered he got himself involved in a heinous offence under Section 376 of the Indian Penal Code, wherein, the prosecutrix had, according to this Court, had fully supported her case in course of deposition but the petitioner having somehow getting her recalled for her further cross examination has sought to be 7 condemned and disbelieved despite even where there was corroborative medical evidence to prove the commission of offence of rape. This Court, in fact, is amazed with the line of approach adopted by Mr. Akram Rizwi, 1st Additional Sessions Judge, Nalanda, Biharsharif, who had acquitted the petitioner and two others. Such injudicious approach of Mr. Akram Rizwi would definitely require further probe on the administrative side and this Court, therefore, by keeping the judgment dated 26.10.2005 in Sessions Trial No. 102 of 1993 on record of this case would direct the Registrar General of this Court to place the whole matter before the learned Hon’ble Inspecting Judge of Nalanda district, for taking appropriate action against him. Coming to the facts of this case, since the case of the petitioner was considered on 21.5.2003, at a point of time when he was facing prosecution for offence under Section 376, and thus ineligible for being appointed on compassionate ground, no error had been committed by the Respondents in rejecting his case. Even otherwise, the petitioner has 8 approached this Court by suppressing all these facts in this writ application was filed on 25.4.2008, inasmuch as, he was under obligation to state this fact that he was facing a criminal prosecution for offence under Section 376 of the Indian Penal Code and that is how, he could not be appointed earlier. The petitioner is at least a Matriculate and is aware of the restriction in the government policy and therefore, the manner in which he has approached this Court after almost fourteen years of the cause of action emanating from the date of death of his father and that too by suppressing the most relevant fact of his being made accused in the criminal case in the year 2002 in which he was acquitted only in the year 2005, whereas his case had already rejected in 2003, by itself would make him disentitled for the discretionary relief under Article 226 of the Constitution of India. The petitioner in this writ application had projected the picture that his application for appointment on compassionate ground was still pending as on 25.4.2008 but when the Respondents in their counter affidavit had 9 taken a stand of such claim of the petitioner being rejected on the ground of pendency of the criminal case that the learned counsel without filing any rejoinder affidavit had produced the judgment of acquittal to press his claim for appointment. Such conduct of the petitioner of suppressing facts and approaching the Court by unclean hands by itself disentitle him to get any relief under Article 226 of the Constitution of India. Reference in this connection may be made to the judgment of Apex Court in the case of State of Haryana V. Karnal Distillery, reported in (1977) 2 SCC 431,Welcom Hotel V. State of A.P. reported in (1983) 4 SCC 575, Vijay Kumar V. State of Haryana, reported in (1983) 3 SCC 333,suraj Bhan V. Bharat Singh reported in 1989 Supp. (2) SCC 456, All India State Bank Officers Federation V. Union of India, reported in 1990 Suppl. SCC 336, Narayanaswamy V. Government of Karnataka reported in (1991) 3 SCC 261, S.B. Mathur V. Muttullah, reported in 1995 Supp. (2) SCC 650, Agricultural & Process Food Products V. Oswal Agro Furane, reported in (1996) 4 SCC. 297, and Chint Ram 10 V. State of Punjab reported in (1996)9 SCC 338 wherein it has been held that:- (i) the petitioner who invokes extraordinary jurisdiction of the High Court under Article 226 of the Constitution must come with clean hands, must not suppress any material or relevant fact from the court, must refrain from making misleading statements and from giving incorrect information to the court. (ii) The Courts, for their own protection, should insist that persons invoking these extraordinary powers should not attempt, in any manner, to misuse this valuable right by obtaining orders by suppression, misinterpretation or misstatement of facts. (iii) The petitioner should not 11 be allowed to play 'hide and choose' his own facts to determine in advance what is relevant and material or to omit to mention all complete and full facts and then claim that he has acted bona fide even though he has made untrue statements, omitted to inform the court of all the proceedings and the orders passed at different stages in the proceedings up to date and claim indulgence. (iv) The petitioner must disclose all the facts having a bearing on the relief sought without mental reservations. Thus the writ application is fit to be dismissed on this ground of suppression of material of facts. Additionally this Court would find that the family of the deceased employee has now 12 survived for a period of seventeen years and the wife of the deceased employee has been paid death-cum-retiral benefit of the deceased employee and, therefore, this Court, having also found that the reason for rejection of the case of appointment of the petitioner on compassionate ground also does not suffer from any error, would not find any justification in now issuing a direction for appointment of the petitioner on compassionate ground. This application is, accordingly, dismissed. Let the records of this case along with this order be placed before the Registrar General for doing the needful as directed above. Rsh (Mihir Kumar Jha, J.)