IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7591 of 2007 SHUBHENDU KUMAR SINHA,S/O LATE RAGHVENDRA KUMAR SINHA, R/O MOHALLAH-DAHIYAWAN, P.O.CHAPRA TOWN, DISTRICT-SARAN. ……………………PETITIONER. Versus 1.THE STATE OF BIHAR THROUGH THE DIRECTOR, PRIMARY EDUCATION DEPARTMENT, NEW SECRETARIAT, PATNA. 2.THE DIRECTOR, PRIMARY EDUCATION DEPARTMENT, NEW SECRETARIAT, PATNA. 3.THE DEPUTY DIRECTOR, PRIMARY EDUCATION DEPARTMENT, NEW SECRETARIAT, PATNA. 4.THE COLLECTOR, CHAPRA, SARAN. 5.THE DEPUTY COLLECTOR ESTABLISHMENT, CHAPRA,SARAN. 6.THE DISTRICT SUPERINTENDENT OF EDUCATION, CHAPRA, SARAN. ………………RESPONDENTS. For the petitioner : Mr. Mahesh Narayan Parbat. For the State :Mr. Kumar Ravish, Adv A.C to G.A –X. ----------- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA (ORDER) 04.04.2011) Mihir Kr. Jha, J. Heard Mr. Mahesh Narayan Parbat, counsel for the petitioner and Mr. Kumar Ravish A.C to G.A-10. The challenge in this writ application of the petitioner is to an order dated 31.01.2007, as contained in Annexure- 7, rejecting his application for appointment on compassionate ground, in terms of the Government policy contained in resolution dated 05.10.1991, which also prescribes that if either of the spouse still remains in 2 Government service after the death of the other spouse, no appointment on compassionate ground can be made. Mr. Parbat learned counsel for the petitioner would however submit that not only the impugned order dated 31.01.2007, is a non-speaking order but even otherwise the same is factually incorrect, inasmuch as, the father of the petitioner was not a Government servant rather only an employee of a constituent college of J.P. University, who cannot be equated as a Government servant. He has further submitted that as a matter of fact, the date of birth of the petitioner is 31.05.1985, whereas when his mother died in harness on 25.06.2000, he was still a minor and as such he could not have filed his application immediately and therefore, when his application was filed in the year-2004 well within the prescribed period of limitation of five years, the situation having changed that even his father had retired from service on 31.03.2002, the applicability of the Government policy of both being in Government service and one spouse still 3 continuing in service at the time of death would not apply to the facts of his case. He has also submitted that this Court should take into account that dependent family members were entirely drained of any resource, inasmuch as, not only both the parents of the petitioner family had died out of cancer but whatever retirement benefits had become available to the family was fully exhausted in the treatment of both the parents as also in the marriages of the four daughters of the parents of the petitioner. Reliance has also been placed by him on a judgment of this Court in the case of Dilip Kumar Das vs The State of Bihar and Ors reported in 2000(2) PLJR 203 with special emphasis on paragraph no. 7 reading as follows:- “From a bare perusal of this resolution it is clear that if both husband and wife are in Government service and if one of them dies even in harness, no appointment can be made to any of his dependents on compassionate. It means that when out of the husband and wife, if one dies but the other remains in the dependent cannot get any appointment on compassionate ground. On the other hand, in the case in hand, 4 though both father and mother of the petitioner were in service but admittedly the petitioner’s father retired from service in 1995. Petitioner’s mother, Lalita Devi, was in service when her husband retired but died in harness on 21.10.1996. Therefore, when the petitioner applied for his appointment on compassionate ground, admittedly, none of his parents was in service. Under these circumstances, in my view, the services of the petitioner could not have been terminated by the concerned authority by wrong interpretation of the said Government resolution/letter. Moreover, it is apparent that before the petitioner was appointed, not only police verification but his entire family background was scrutinized by the concerned authority and on the basis of that report the committee for Compassionate appointment approved the appointment of the petitioner and the petitioner joined his post. Mr. Kumar Ravish, learned counsel appearing on behalf of the State on the other hand would submit that first of all the line of distinction drawn by the counsel for the petitioner as with regard to the Government servant/University servant has to be understood in the context, that it 5 was the Government, which was the pay master of either of them. He has also submitted that the date of application would not be the guiding factor for applying the Government circular as with regard to either of the spouse remaining alive and continuing in Government service and in fact the same has to be in terms of the government policy dated 5.10.1991, made referable only to the date of death of the employee dying in harness. He has also explained that, as on the date of death of the mother of the petitioner i.e 25.06.2000, the father of the petitioner was in university service, which by itself would disentitle the petitioner from being appointed on compassionate ground, in terms of the Government policy dated 05.10.1991. He too has curiously placed reliance on the same judgment of Dilip Kumar Das (supra) and interestingly on the same, paragraph no. 7. In the considered opinion of this Court, submission of Mr. Kumar Ravish has to be accepted for more than one reason. First of all the Government policy contained in its resolution/circular dated 05.10.1991, 6 has to be understood in the context that the scheme was framed for appointment on compassionate ground, wherein, eligibility conditions were laid down in respect of a government servant. The wording of the circular dated 5.10.1991 under the heading who can be appointed on compassionate ground categorises the eligibility condition. For a better appreciation, the same is quoted hereinbelow:- lsokdky esa e`r ljdkjh lsodksa ds vkfJrksa dks oxZ &3 ,oa 4 ds inksa ij vuqdEik ds vk/kkj ij fu;qfDr dh izfØ;kA funs'kkuqlkj dguk gS fd vc rd lsokdky esa fdlh ljdkjh lsod dh e`R;q gksus ij e`r ljdkjh lsod ds vkfJrksa dks oxZ &3 ,oa oxZ &4 ds inksa ij fu;qfDr gsrq dkfeZd,oa iz'kklfud lq/kkj foHkkx }kjk fuxZr lHkh vuqns'kksa dks voØfer djrs gq, ljdkj us ;g fu.kZ; fy;k gS fd vuqdEik ds vk/kkj ij fu;qfDr dh izfØ;kvksa dks bl izdkj ljy ,oa izHkkodkjh cuk;k tk;s fd ljdkjh lsod ds e`R;ksijkUr mlds vkfJr dks fcuk foyEc ds oxZ &3 ds dfri; inksa vFkok oxZ 4 ds inksa ij fu;qfDr fey ldsA bl mn~ns'; ls ljdkj us fuEukafdr fu.kZ; fy;k gS& 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 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= 7 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 ¼d½ fdudk p;u ugha gks ldrk& fuEukafdr dksfV;ks esa ls fdlh Hkh dksfV esa vkus okys O;fDr dk vkosnu izkjfEHkd rkSj ij gh vLohd`r dj fn;k tk;sxk] ;fn [kaM **[k** vkSj **x** ds laca/k es 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 {kkUr 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;qn.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 vkosnd dks 6 ekg vFkok mlls vf/kd dk n.M fn;k tk;sA (underlining for emphasis) The aforesaid two paragraphs of the policy dated 5.10.1991 with added emphasis on underlined portion laying down the condition of eligibility and disqualification, if read in tandem would make it clear that a conscious decision was taken by the State Government that if either of the spouse was in Government service on the date of death of the other, none from the family would be entitled for appointment on compassionate ground. This in fact is the essence of the policy of the Government, 8 where it has made provisions for appointment on compassionate ground based on the touchstone of financial condition of the family on the date of death of the employee. If the Government, therefore, while framing the policy was conscious that in the family of both of the spouses were in Government servant and one of them would be still alive while continuing in service, it would be sufficient to carry the burden of the family. Thus no exception can be made only on the ground that the other spouse had also subsequently retired from service. The relevant criteria in this regard infact is date of death and therefore this Court will not be in a position to accept the submission of Mr. Parbat, that such criteria should be examined on the basis of the date of filing of application by the dependent of the deceased employee dying in harness while seeking appointment on compassionate ground. The condition leading to appointment on compassionate ground is created immediately on account of the death of the earning family member and would always date back the date of such 9 death and not from the date, his or her dependent would file such an application. The Government policy circular dated 05.10.1991, therefore, has to be read in this context in a harmonious manner and no exception can be carved out on account of individual facts, however, telling that they may be. The second aspect that the father of the petitioner cannot be equated to be a Government servant has to be only noted in its being rejected. The expression Government servant, in the Government policy has to be understood that the said policy was also sought to be strictly followed by all public undertaking, institutions, authorities, corporation, board and State subsidized institutions as is apparent from para-11 of the said resolution reading as follows:- ¼11½ bl ifji= dh izHkko lhek & ;g ifji= jkT; ljdkj ds v/khuLFk lHkh yksd miØeksa] Lo'kklh fudk;ksa] izkf/kdkjksa] fuxeksa] i"kZnksa rFkk jkT; lEiksf"kr laLFkkvksa ij Hkh iw.kZ:i ls ykxw le>k tk;sxkA Mr. Parbat, himself was of the view that the University is an autonomous institution and therefore, if the Government 10 circular was made applicable also to the University, the plea that the University servant will not be a Government servant for the purpose of para-11 cannot be accepted. In this context, one has to also take into account that though the administrative and functional autonomy has been granted to the Universities by the Bihar State Universities Act under which the father of the petitioner was covered, while in service and even after his retirement, the said Act itself does not leave the University as autonomous institution in the matter of fiscal autonomy inasmuch as the entire expenditure on establishment, of the university is to be borne by the State Government. The entire budgetary control of the university is infact with the State Government. Section 47 and 48 of the Bihar State Universities Act, will therefore leave nothing for speculation that it is the Government which has to fund entire expenditure even for payment of salary of the employees of the University. Thus it would be difficult for this court to accept the interpretation of the underlined portion of the aforesaid circular 11 dated 5.10.1991 to cover only cases of such Government servant who are working directly in the Government departments. As noted above, the circular has been enforced also in all the autonomous institutions including the universities in which the Government is extending financial support and meeting its expenditure on such institution. Once this Court would find that the father of the petitioner was an employee of a constituent college, it has to be held that he was covered within the expression of 'Samposhit Sansthan' which has to be construed in a manner for the purpose sought to be achieved. Thus at least in such family where one of the spouse was still continuing in employment in the university and was drawing salary from the funds of Government exchequer on the date of death of the other spouse in government service the category of the dependent of the family members of the other Government servant dying in harness would not be eligible for appointment on compassionate ground. As with regard to the applicability of the judgment in the case of Dilip Kumar 12 Das(supra), this Court would find that the factual position in the aforesaid case was just the reverse, inasmuch as, in that case the father of the petitioner had retired from service in 1995 and the mother of the petitioner had died on 21.10.1996. It was in this background that without giving an interpretation of the circular of being in Government service on the date of death of the concerned Government servant, this Court had held that when the petitioner Dilip Kumar Das (supra) had applied for his appointment on compassionate ground, none of his parents were serving the Government. This in fact is the clear line of distinction in the present case, inasmuch as, the father of the petitioner was admittedly continuing in service of university when the mother of the petitioner had died in harness. That being so, the ratio of Dilip Kumar Das (supra) far from supporting the case of the petitioner would actually go against him. This Court finally would also find that though it is true that there were two deaths of both the parents the petitioner, 13 one after another on account of a dreaded disease like cancer and thereby its sympathy may also be with the petitioner but then the policy of compassionate appointment as framed by the government being an exception to mandate of Articles 14 and 16 of the Constitution of India has to be construed strictly, inasmuch as, the same only carves out an exception to the rule of normal appointment based on the enshrined principles of equality and equal opportunity to all its citizen in the matter of public employment. Judged, in this background this Court would find that whatever be the comparative hardship of the petitioner , he was at least fortunate to have two of the earning parents getting salary from the Government and at least one of them still surviving and getting salary from the government revenue which could word of the sudden crisis created on account of death the other spouse whereby and whereunder he could receive his medical treatment to the best of the extent but also got his four daughters married. There are a large number of people in this country where similar 14 facility could not be made available to them only because neither of their two parents were in government service. Based on the aforesaid reasoning this Court would find it difficult to interfere with the impugned order which is based on a correct interpretation and application of the existing government policy of compassionate appointment. That being so, this application is devoid of any merit and is, accordingly, dismissed. (Mihir Kumar Jha,J) Patna High Court Dated the 4th April 2011 A.F.R./Ranjan