IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11005 of 2005 OM NATH CHOUDHARY Versus THE BIHAR STATE ELECTRICITY BO -- For the Petitioner : Mr. Ram Chandra Singh Mr. Jitendra Kumar Singh Mr. Shankar Kumar For Electricity Board: Mr. Vinay Kirti Singh Mr. Rakesh Kumar Singh -- 4. 24.7.2008 Heard learned counsel for the petitioner and learned counsel for the Bihar State Electricity Board. The petitioner seeks quashing of the order dated 6.6.2001 ( Annexure-6) passed by the Deputy Personnel Director, Bihar State Electrity Board, Tirhut Area, Muzaffarpur, by which the application of the petitioner for appointment on compassionate ground has been rejected and for consequential direction. Late Raghu Nath Choudhary, father of the petitioner, died on 14.12.1995 while in service. On the date of death of his father, the petitioner was a minor. The petitioner claims his date of birth to be 28.1.1980 and in support of the same, a transfer certificate was issued on 4.9.2002 by the Headmaster of Dr. Rajendra Prasad High School, Hathua, Gopalganj. The petitioner applied for compassionate appointment on 12.2.1998 stating that he had attained the age of 18 years on 28.1.1998. However, the certificate issued regarding the age of the petitioner having been disbelieved by the officials of the Electricity Board, they directed him to appear before the Medical Board with respect to ascertainment of his age, which gave its report on 3.11.1999 ( 2 Annexure-6) stating his age as between 15 and 16 years. On the basis of the same, the petitioner’s application was considered and it was held that in terms of Board’s Standing Order No.7 dated 28. 9.1997 the petitioner having not completed the age of 18 years within five years of the death of his father, his application stands rejected. Learned counsel for the petitioner relies upon clause “Chha” of Standing Order No. 756 dated 18.2.1994 of the Board in which it is stated that only those cases could be considered for compassionate appointment where the application is submitted by the dependent of the deceased employee within five years of his death and it is further provided that if the son/ unmarried daughter of the deceased employee is minor and the wife/ husband of the deceased employee is not eligible or has no desire for employment, then an information in this regard along with an affidavit should be given to the Board within five years of the death of the deceased employee and on his/her becoming major, the appointment shall be considered. Thus, it is submitted by learned counsel for the petitioner that the petitioner having applied within five years of death of his father and even assuming that he was a minor in terms of the report of the Medical Board on that day , he would still be entitled to compassionate appointment on his becoming major in terms of clause “Chha” of Standing Order No. 756 dated 18.2.1994. In support of the aforesaid proposition, learned counsel for the petitioner relies upon a decision of the Supreme Court in the case of Mohan Mahto .v. Central Coal Field Ltd. and others : (2007) 8 Supreme Court Cases 549 . In the said case in terms of National Coal 3 Wage Agreement ( NCWA), it was provided that in case of death of worker, if no employment has been offered and the male dependant of the worker concerned is 15 years and above in age then he would be entitled to employment commensurate with his skill and qualifications when he attains the age of 18 years. In the said circumstance, the Apex Court held that the settlement was binding upon both the parties and to be given effect to and thus the Coal Company was obliged to grant him appointment on compassionate ground and not take a plea on the basis of limitation of six months in filing the application fixed by a Circular, which was not statutory. Learned counsel for the petitioner also relies upon another decision of the Supreme Court in the case of Syed Khadim Hussain .v. State of Bihar & ors.: (2006) 9 SCC 195 wherein the deceased employee had died in the year 1991 and the application of the widow for her compassionate appointment within time in 1993 had been rejected merely on the ground that it was not in a prescribed format and subsequently in 1995 the son applied for compassionate appointment, which was rejected in 2001 on the ground that he at the time of filing the application was aged about 13 years. The Supreme Court held in paragraph no.6 of its judgment as follows: “ As the widow had submitted the application in time the authorities should have considered her application. As eleven years have passed she would not be in a position to join the government service. In our opinion, this is a fit case where the applicant should have been considered in her place for appointment. Counsel for the State could not point out any other circumstance for which the appellant would be disentitled to be considered for appointment. 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 4 months. The appeal is disposed of in the above terms. No costs.” Learned counsel for the Bihar State Electricity Board, on the other hand, opposes the stand of the petitioner on the basis of two decisions of this court in C.W.J.C. No.7407/2002: Most. Kanti Devi and another .v. State of Bihar, in which the compassionate appointment was rejected on the ground that at the time of death of the father, the petitioner of that case was aged about 4 years and it was held by this Court as follows: “So far as the claim of petitioner no.2 is concerned, it has to be summarily rejected for the reason that at the time of death of his father, he was a kid of four years. Appointment at this stage would amount to treating the post as reserved for him so that on his becoming eligible he is appointed. This would be contrary to the Bench decision of this Court in Anil Kumar Singh .vs. State of Bihar 1993 (1) PLJR 414. The decision of the Supreme Court in Umesh Kumar Nagpal .vs. State of Haryana ( 1994 ) 4 SCC 138 may also be referred to. The Supreme Court emphasized that compassionate appointment should be made only in cases where the family cannot survive without such appointment. In the instant case the family having survived and stood the travails of life for 15 years, there can be no justification to make any appointment on compassionate ground at this stage. If the petitioners thought that the appointment was being delayed on account of laches on the part of the Board or its officers, it was open to them to approach this Court for suitable direction at the appropriate stage.” Learned counsel for the Board also relies upon a decision of this Court given in Annexure-D to the counter affidavit in C.W.J.C. No.13670 of 2004: Sayam Kumar .v. The Bihar State Electricity Board through the Chairman, BSEB, Patna disposed of on 4.4.2005, in which practically on identical facts, this Court held as follows: “In such view of the matter, having regard to the fact that an application for compassionate appointment can be made only within five years from the date of death by a competent person seeking 5 such an appointment and the petitioner having not acquired competence to apply for a compassionate appointment within five years from the date of death of his father, in terms of the scheme, his application for compassionate appointment could not be considered. In such circumstances, the writ petition fails and the same is dismissed without any order as to costs.” On a consideration of the facts and circumstances of the case, this Court does not find sufficient force in the contention of learned counsel for the petitioner. The decisions relied upon by learned counsel for the petitioner do not support his case. So far as the case of Mohan Mahto (supra) is concerned, the said matter related to settlement under the Industrial Disputes Act, which provided for employment to a male child, who was above 15 years on the date of death of the employee, on his attaining the age of 18 years, which was refused on the ground of the application not being filed within six months or the one year as per the Circular issued by the Coal Company. It was also held that the settlement was binding upon both the parties and the Circular of the Coal Company could not override upon the same. In the said case, the Supreme Court also noticed the earlier decision in the case of Umesh Kumar Nagpal .v. The State of Haryana and others: (1994) 4 SCC 138. In paragraph no.6 of the said judgment, it has been held as follows: “6. For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at anytime in future. The object being to enable the family to get over the financial crisis which it facts at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.” It is, thus, evident that any compassionate appointment can be made within a reasonable period of time which would depend 6 upon rules operating in the field. The impugned order dated 6.6.2001 has been passed on the basis of the Board Standing Order No. 780 dated 28.1.1997 which has amended the earlier Standing Order No. 756 dated 18.2.1994. In the said Standing Order No.780, it has been provided that an application for compassionate appointment by the dependent must be filed in a prescribed format within five years from the date of death of the deceased employee. It is, thus, evident that the special provisions earlier contained in the Standing Order No. 756 regarding minor son/ unmarried daughter have been obliterated by the subsequent Standing Order. In that view of the matter, it must be held that as was held by this Court in the case of Sayam Kumar (supra) in its order dated 4.4.2005 that the compassionate appointment can be made only within five years from the date of death of the deceased employee and the petitioner having not acquired competence to apply for compassionate appointment within five years from the death of his father, his application for compassionate appointment could not be considered. So far as the earlier provisions contained in Standing Order No. 756 dated 18.2.1994 is concerned, the same appears to be contrary to the observations of the Supreme Court in the case of Umesh Nagpal (supra) and other cases including those decided by this Court in which it has been held that compassionate appointment cannot be granted after a lapse of a reasonable period of time, since there is no vested right, which can be exercised in such appointment at any time in future and the object being to enable the family to get over the financial 7 crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over. This Court and the Apex Court have also emphasized the fact that compassionate appointment is an exception to the provisions of Articles 14 and 16 of the Constitution and the State is obligated to give effect to the Constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution. Compassionate appointment directly contravenes such Constitutional mandate and it has only been permitted as an exception to the Constitutional provision to enable the family of a deceased employee to tide over the sudden financial crisis. In the light of the above discussions, this Court does not find any merit in the writ application and it is, accordingly, dismissed. “ VPS ( Ramesh Kumar Datta,J.)