IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13526 of 2006 S.M.RAZAUL HASSAN FARIDI, S/O LATE M.D. FARID UDDIN, R/O CHAMELI CHAK, POST IVIVAPUR, P.S.- HABIBPUR, DISTRICT-BHAGALPUR. …………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE M.D. BIHAR STATE COOPERATIVE BANK, PATNA. 3. THE MANAGING DIRECTOR, BHAGALPUR CENTRAL COOPERATIVE BANK LTD., BHAGALPUR. 4. THE MANAGER, CENTRAL COOPERATIVE BANK, KELAPUR KAJRAILI, P.S. AND BLOCK, NATHNAGAR, DISTRICT-BHAGALPUR. …………RESPONDENTS. ----------- For the Petitioner : Mr.Narayan Singh, Sr.Adv. and Mr.Birendra Kumar Singh, Adv. For the Bank : Mr.Nitiranjan Jha, Adv. and Mr. Rakesh Kumar Jha, Adv. For the State : Mr. Rajesh Kumar Singh, AC to SC-VI. ------------ 3 09.07.2010 Heard learned counsel for the petitioner and learned counsel for the respondent Bank. Petitioner’s father at the time of his death on 13.12.2003 was working as PACKS Manager, i.e., Manager in a Primary Agricultural Credit Cooperative Society in the District of Bhagalpur. The Society was affiliated to Bhagalpur Central Cooperative Bank which was also registered as a Society under the Bihar Cooperative Societies Act, 1935. Accordingly, mother of the petitioner i.e. widow filed an application, vide 2 Annexure-3 dated 17.12.2003, for appointment of her son on compassionate grounds. The respondents having not considered the same, the petitioner has filed this writ application. Learned counsel for the petitioner submits that since the father of the petitioner at the time of his death was working under the respondent Bank in its Nathnagar Branch, the petitioner should be appointed by the Bank on compassionate ground. In paragraph 6 of the writ application the petitioner has cited two examples of one Sunaina Devi, widow of Hridyanand Dube and one Kalyan Kumar Madhubani, son of Ram Saran Yadav, who have been appointed by the Bank under the respondents on compassionate ground. It is stated that the concerned deceased were also working as PACKS Manager. It is submitted that the petitioner should therefore, be given similar treatment and should be appointed on compassionate ground. In support of the submissions, learned counsel for the petitioner has relied upon a judgment of a Bench of this Court in Vimal Kumar Jha Vs. 3 State of Bihar (2004 (4) PLJR 93) and has particularly relied upon the following observations of the Court made in paragraph 8 and 9 respectively of the Judgment :- “8. The State cannot be allowed to say that in relation to one man they would issue an order under the special circumstances and for another man they would say that the earlier order was issued in a different context. The State in a democratic set up has to treat its citizens equally except as provided under the Constitution for a reasonable classification. In a case of compassionate appointment, there cannot be any discrimination even on a reasonable classification. They are one class. The bread-winner had died in harness while in service and the family needs some succour. It cannot be argued that for Mr.X the policy would apply and for Mr.Y the policy would not apply.” “9. The Government and its Officers should not be run on the whims, caprice and arbitrariness of the Officers holding the post. After all there must be some discipline in the said Officers also. The law does not change with the change of the man; the law does not change with the change of the understanding; the law does not change with the change of the time; the law remains the same for all the times to come.” 4 He has further relied upon a judgment of a Bench of this Court in the case of Harendra Prasad Bhagat Vs. State of Bihar (2004 (4) PLJR 375) and has particularly referred to paragraph 6 thereof which is as follows:- “Since the State Government has relaxed the rule in case of Kalika Singh aforesaid, who has already been appointed having lesser qualification, in my opinion, the case of the petitioner also requires consideration by the State authorities.” The next judgment relied upon by learned counsel for the petitioner is a Division Bench judgment of this Court in the case of Kamlanand Jha Vs. State of Bihar and Ors. (2007 (1) PLJR 672). He has particularly relied upon the observations of the Court as made in paragraph 8 of the judgment which are as follows:- “This question is already settled by now by various judgments of this Court. A Bench of this Court dealing with similar situation held in the case of Brajendra Prasad Poddar Vs. the State of Bihar and Others [1990(2) Patna Law Journal Reports 668) that cause of a dependent, whose father died-in-harness, 5 should not be frustrated on technical grounds and keeping in view the benevolent legislation of the State Government, liberalized view should be taken for providing employment on compassionate ground. It is further held that the dependent on attaining the age of majority would be entitled to be considered even though he may be minor at the time of death of his father. The question of under-age would be no ground to take a decision to frustrate the cause. The facts of the case at hand is almost identical to that of Brajendra Prasad Poddar (supra).” Learned counsel for the petitioner lastly relied upon a judgment of this Court in the case of Rajesh Kumar Pandey Vs. Union of India & Ors (2004 (2) PLJR 195) and has referred to paragraph 4 of the judgment which is as follows:- “The counter affidavit filed by the other side says that they did not have vacancies, therefore, compassionate appointment cannot be given to the petitioner. At the time of argument it was submitted that the policy as contained in Annexure-8 has been revised but nothing further has been placed on the record except a bald statement made at the bar.” 6 A counter affidavit has been filed by the respondents in the case. Learned counsel for the respondents submits that the substantive appointment of the father of the petitioner was in the District Cadre Cooperative Society Limited and posted in PACKS. Due to paucity of hand, the father of the petitioner, at the time of his death, was working in the Bank only on deputation. He submits that the Bank itself is an autonomous body and the rules and regulations of the Government with regard to compassionate appointment does not apply to it automatically, unless and until the same stands adopted by the Bank. He also submits that the Cooperative Society in which father of the petitioner was a substantive employee is also an autonomous body the same has also no rules for compassionate appointment of dependents or heirs of the deceased employees. Therefore, in absence of any specific rules for appointment on compassionate ground in the organization, it was not possible for the respondents to accede to the request of the petitioner. He submits that two examples cited by the petitioner is of no help to the 7 petitioner as the appointments were made by the then Administrator of the Bank during his supersession without any rules providing for compassionate appointment in the Bank and the Society. He submits that the said two appointments were therefore illegal. He also submits that any appointment in the Bank is subject to direction/approval by the Registrar, Cooperative Societies in terms of Rule 33 of the Bihar Cooperative Societies Rule 1959. He submits that in view of the application of the petitioner the matter was referred to the Registrar, Cooperative Societies and the Registrar, Cooperative Societies by his letter dated 30.12.2006 (annexed as Annexure-R/3 with the counter affidavit) has clarified that there is no provision in the Bank providing for appointment of dependents of PACKS Managers. He submits that in view of this clarification by the Registrar Cooperative Societies, it is not possible for the respondents to appoint the petitioner on compassionate ground. Learned counsel for the petitioner submits that since the respondents had made two appointments on compassionate ground, they 8 cannot resile from this position and refuse appointment to the petitioner in similar circumstances. It is difficult for this Court to accept the submissions of learned counsel for the petitioner. The judgments relied upon by him do not support his case to the extent to get a mandamus from this Court for appointment of the petitioner. The observations of this Court in the case of Vimal Kumar Jha (supra) are not applicable to the case of the petitioner, as he has not been able to show that there was some law for appointment on compassionate ground in some way applicable to the respondent Bank and the Cooperative Societies. If he would have been in a position to satisfy this Court in this respect, definitely the said observations would have come a long way in his help. But fact remains that it has been specifically asserted by the respondents that there is no law or rule of compassionate appointment which is applicable to the Bank or the Cooperative Societies affiliated to it. Due to same reasons the observations of this Court in the case of Harendra Prasad Bhagat (supra), as quoted 9 above, are not of any help to the petitioner. Since there is no question of grant of relaxation to the petitioner, the observations of the Court in the case of Kamlanand Jha (supra) is also of no help to the petitioner, since in that case clearly a law was operating in the field governing the respondents under which they had hurriedly rejected the application of the petitioner of the case on the ground of his minority without awaiting for him to attain his majority. The observations of the Court in the case of Rajesh Kumar Pandey (supra) is also of no help to the petitioner as in that case the Court has observed that in absence of vacancy in a particular department claim for compassionate appointment cannot be rejected. The fundamental difference of the case of the petitioner with the case of other petitioners in the judgments relied upon by the petitioner is that he has not been able to demonstrate that any rule of compassionate appointment of the dependents of PACKS Manager is operating in the field under which the respondents were obliged to consider his application. In absence of such rule, it is 10 not possible for this Court to issue any mandamus for consideration of the application of the petitioner for his compassionate appointment on merits. Learned counsel for the respondents has admitted that the then Administrator had appointed the said two persons, namely, Sunaina Devi and Kalyan Kumar Madhubani on compassionate ground while the Bank was under supersession. The supersession of the bank or of the statutory body does not change the rules applicable to it and does not make rules of the Government automatically applicable to it. Therefore, the Administrator had clearly acted without jurisdiction in making appointment of those two persons. He also admitted that those two appointments were made without any rules providing for such appointments of the dependents of the PACKS Managers. Had the respondents supported those appointments as valid in law, the case of the petitioner of hostile discrimination would have stood made out, and then only this Court could direct the respondents to treat the petitioner identically and give him equal treatment vis-à-vis those two persons. Then 11 the judgment relied upon by the petitioner in the case of Vimal Kumar Jha (supra) would have come a long way in his support. But since the respondents have admitted that those two persons were illegally appointed, this Court cannot exercise its jurisdiction to perpetuate illegality committed by the respondents earlier by treating the petitioner in same illegal way. The clarification by the Registrar, Cooperative Societies, as evident from Annexure-R/B, clinches the issue where the Registrar, Cooperative Societies has clearly communicated that there is no provision for appointment of dependents of PACKS Manager of the Cooperative Societies. In the circumstances, this Court does not find any merit in the writ application and the same is dismissed. Arvind/ ( J. N. Singh, J.)