IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5919 of 2007 AKHILESH KUMAR MISHRA, son of late Manbodhan Mishra, resident of village and P.O. Daraili, P.S. Guthani, District Siwan … Petitioner Versus 1. THE STATE OF BIHAR 2. The Director, Revenue and Land Reforms (Consolidation), Bihar, Patna 3. The Deputy Director, Consolidation, Dumra, Sitamarhi 4. The Consolidation Officer Runisaidpur Block, District Sitamarhi … Respondents ----------- 3. 19.4.2011 Heard counsel for the petitioner and the counsel for the State. The prayer of the petitioner in this writ application is for quashing of an order dated 24.6.2006, whereby and whereunder his claim for appointment on compassionate ground has been rejected on the ground that there was no provision for appointment of a dependent of a Government servant who would be deemed to have died in terms of section 108 of the Evidence Act, inasmuch as the very purpose of compassionate appointment after a period of seven years, the period of presumptive death, would be frustrated. Counsel for the petitioner would submit that such a view would run contrary to the very scheme of compassionate 2 appointment and in fact when the Government itself has not distinguished between a natural death or a presumptive death of a Government servant dying in harness, no artificial line of distinction can be drawn by eliminating the persons of latter category. In this context reliance has been placed by the learned counsel for the petitioner on a judgment of this Court in the case of Md. Noor Alam & ors. vs. the State of Bihar & ors., reported in 2007(4) PLJR 200. Counsel for the respondents, on the other hand, has placed reliance on an order passed by the Personnel and Administrative Reforms Department contained in letter No. 281 dated 1.2.2006, whereby and whereunder it has been held that there would be no rational or justification in appointing the dependent of a Government servant who would remain missing for a period of seven years and would be deemed to have died only thereafter. Counsel for the State in this context had laid stress that such a policy decision has been taken by the State Government in keeping with the observations 3 made by this Court in the case of Smt. Kamla Devi and Sudhir Kumar vs. the State of Bihar & ors., reported in 2005(2) PLJR 155. In the considered opinion of this Court the first and foremost issue to be addressed in such cases would be that when the Government has taken a policy decision for appointment on compassionate ground which itself is by way of exception to the general appointment by following mandate of Articles 14 and 16 of the Constitution of India, the policy of compassionate appointment has to be carried out in letter and spirit. The Government policy ever since 12.7.1977 has been to provide appointment to the dependent of the deceased Government servant dying in harness by way of appointment on compassionate ground. Such policy envisages certain eligibility as also disqualification and in none of such Government policy either dated 12.7.1977 or subsequent modified policy dated 5.10.1991 there is any inkling which would go to show that a Government servant initially missing for a period of seven years and thereafter having a presumption of his being dead in 4 terms of section 108 of the Evidence Act would not be a Government servant dying in harness. In fact none of the policy of the State Government does qualify the nature of death to be the deciding factor for appointment on compassionate ground. True it is that whenever an application of such a person whose bread earner dies in harness on account of presumptive death in terms of section 108 of the Evidence Act, would file an application for appointment on compassionate ground, the test for his being eligible or incurring disqualification would be same as laid down in the policy, but then he cannot be shown the door only on the ground that his father did not die a natural death and in fact his death had to be presumed on account of his missing for a period of seven years in terms of section 108 of the Evidence Act. It is this aspect of the matter which has been considered by this Court in the case of Md. Noor Alam (supra), wherein it was held as follows: “3. Having heard counsel for the parties and having perused the pleadings filed by them including different circulars relied on 5 during the hearing of the writ petition namely, Circular letter No. 13293 dated 5th October, 1991, Circular letter No. 9739 dated 26th November, 1997, Annexure- 12 to the supplementary affidavit and the Circular letter No. 281 dated 1.2.2006, Annexure-A, I am of the view that the State Government has already taken a decision which is contained in Circular letter No. 9739 dated 26th November, 1997. Annexure 12 to the supplementary affidavit to consider the case of the dependents of those Government servants who have remained traceless for seven years for appointment on compassionate ground which decision has not been revised in the subsequent Circular bearing letter No. 281 dated 1.2.2006, Annexure A. In the circumstances, I have no option but to quash the order bearing letter No. 49 dated 10.2.2005, Annexure 9/ Office order No. 122 dated 31st August, 2005, Annexure 2/ Memo No. 260 dated 3.2.2004, Annexure 5/ Memo No. 1629 dated 2.8.2005, Annexure 8 and to direct that the State Government is duly bound to consider the case of the petitioners in the light of the instructions contained in Circular letter No. 9739 dated 26th November, 1997, Annexure 12 to the 6 supplementary affidavit but while considering their case for such appointment the State Government/ competent authority of the department concerned shall take into account the family income of the traceless Government servant from other sources; movable/ immovable properties on the basis of which the family survived during the preceding years. Such information is sought for in the application form for compassionate appointment as provided in circular letter dated 5.10.1991 and if the family members/ dependents survived the intervening seven years in penury then they shall be granted compassionate appointment, otherwise not. The case of the petitioners for compassionate appointment shall be considered as early as possible, in any case within a period of three months from the date of receipt/ production of a copy of this order before the Secretary, personnel and Administrative Reforms Department/ Secretary, Minor Irrigation Department/ Environment and Forest Department, Bihar, Patna/ Secretary, Bihar State Electricity Board, Patna/ District Magistrate cum Chairman, District Compassionate Committee, Patna.” 7 As is noted above, the learned Single Judge has taken into consideration not only the circulars on the subject but also law laid down by this Court in the case of Rajiv Kumar vs. the State of Bihar & ors., reported in 2004(1) PLJR 36, where the Division Bench had the occasion of considering a similar case of a person whose father had initially been missing for a period of seven years and was deemed to have been died in terms of section 108 of the Evidence Act. Thus, bound by the ratio laid down by the Division Bench this Court will have no option but to hold that the Government decision dated 1.2.2006, as contained in Annexure A/2, which is sheet anchor for passing the impugned order in this case, is wholly unsustainable either on fact or in law. As a matter of fact the respondents have some how misread or at least read between the lines of the observations made by this Court in the case of Kamla Devi and Sudhir Kumar (supra), wherein it was clearly held that even the category of a Government servant initially missing for seven years 8 and deemed to have been died upon not being heard in the period of seven years in terms of section 108 of the Evidence Act would also qualify for being considered for appointment on compassionate ground. It is for that reason that the learned Single Judge had even gone to compute the date of filing of application by explaining that: “It is true that there is a limit for making application for compassionate appointment. This limit, however, will start running from the date when the period of presumption will come to an end and not on the date of the death for by reason of a fictin of the statute made through the legislative mandate although the death has occurred, the cognizance thereof can be taken after expiry of the time specified.” Thus, it would be clear that this Court in Kamla Devi did not give a free hand to the respondents State Government and the authorities of Personnel and Administrative Reforms Department to take a decision as to whether the scheme of compassionate appointment would be applicable for dependent of the Government servant who was 9 missing initially for a period of seven years and would be deemed to have died in terms of section 108 of the Evidence Act. This Court must hasten to add that the other relevant factor, such as financial condition of the family of the deceased employee and the other relevant factors as explained in the Government policy in vogue by circular dated 5.10.1991 would strictly apply with only an exception that the delay of seven years in approaching the Government/ competent authority for appointment on compassionate ground by itself will not be a factor for rejecting the case of compassionate appointment. That is how this Court will have to read even from the ratio of the Division Bench judgment of Rajiv Kumar (supra). Based on the aforementioned analysis this Court is of the view that the impugned order passed by the respondent authority dated 24th June, 2006 cannot be sustained and the same is, accordingly, quashed. The matter is remitted back to the Director, Consolidation, who would now reconsider the application of the petitioner 10 dated 10.7.2002 for his appointment on compassionate ground on merits and would place the same before the Compassionate Appointment Committee for taking a final decision in the light of observations made above as also strictly in accordance with the policy of compassionate appointment. Taking note of the fact that the father of the petitioner was missing since 10.3.1995 and is presumptive death would reckon only from 9.3.2002 and that the petitioner had filed his application on 10.7.2002, such application being well within time as held in the case of Kamla Devi (supra) this Court would direct the competent authority to take a decision within a period of four months from the date of receipt/ production of a copy of this order. With the aforementioned observation and direction, this application to the extent indicated above is allowed. There would be, however, no order as to costs. (Mihir Kumar Jha,J.) Surendra/ 11