1 IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10222 of 2008 JAI PRAKASH RAM, S/O LATE ASHARFI RAM, R/O VILLAGE DURGA TOLA, PO FERUSA P.S GARKHA, DISTRICT SARAN. ...........PETITIONER. Versus 1.THE STATE OF BIHAR THROUGH THE SECRETARY CUM COMMISSIONER, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 2.DY SECRETARY PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3.DISTRICT COMPASSINATE APPOINTMENT COMMITTEE THROUGH ITS CHAIRMAN DISTRICT MAGISTRATE SARAN,CHAPRA. 4.DISTRICT MAGISTRATE, SARAN, CHAPRA. 5.DISTRICT SUPERINTENDENT OF EDUCATION, SARAN, CHAPRA. 6.DEPUTY COLLECTOR ESTABLISHMENT, SARAN, CHAPRA. .............RESPONDENTS. ----------- 02/ 03.05.2011 Heard counsel for the parties. This writ application has been filed by the petitioner challenging the order dated 07.05.2008, containing the communication made by the Deputy Collector with regard to the proceedings and the resolution passed by the District Compassionate Appointment Committee dated 25.03.2008, whereby and whereunder the case of the petitioner for compassionate appointment has been rejected by applying the Government decision contained in letter no. 11946 dated 30.11.1984 on the ground that the said Circular dated 30.11.1984 has already been superseded by the Government resolution while laying down the revised scheme of compassionate appointment by circular dated 05.10.1991. 2 Learned counsel for the petitioner would submit that as the father of the petitioner had died on 07.03.2006, the case in hand will not be covered by the circular which was in vogue on 30.11.1984 and in fact it is the circular dated 05.10.1991 as updated from time to time which alone would be taken into consideration for considering the case of compassionate appointment of the petitioner. Counsel for the State who has filed the counter affidavit submits that the view taken by the Compassionate Appointment Committee rejecting the case of the petitioner on the ground, that there was already one person employed from the family of the deceased employee, and as such there is no requirement under the policy that one person has to be necessarily appointed can not be faulted in law. He however, was not in a position to defend the impugned order which is based on the circular dated 30.11.1984. As a matter of fact, from the perusal of the circular dated 05.10.1991 laying down the policy of compassionate appointment, it would be clear that the State Government had expressly superseded all its earlier circular as would be evidenced from paragraph no. 1, which reads as follows:- 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 3 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= 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 (underlining for emphasis) Thus in view of the aforementioned underlined clear provisions in the Circular dated 5.10.1991 which does not save in any manner the earlier circular no. 11946 dated 30.11.1984, there would be no difficulty in holding that the consideration of the case of the petitioner on the basis of a superseded Circular was not justified and consequently the impugned order dated 07.05.2008, contained in Annexure-1 has to be quashed on this ground alone. It is made clear that this Court has not gone into the correctness of the reasons mentioned therein, inasmuch as, if the 4 subsequent circular also envisages that the appointment of a person can be refused on the ground of one of the dependent being already employed in service, the same decision could be taken afresh but by only applying the provisions of the circular in vogue i.e. 05.10.1991. This Court must also note the submission of Dr. Shukla that there are unimpeachable documents to show that the said elder brother of the petitioner has been living separately and is not supporting the family and therefore the Compassionate Appointment Committee should take into account that aspect as well, while deciding the case of the petitioner afresh. In this context all that can be observed is that the issue with regard to compassionate appointment can only be decided by looking into the totality of the circumstance of the financial condition of the family as was held in the case of Umesh Kumar Nagpal vs State of Haryana reported in 1994 (4) SCC 138, wherein, the Apex Court has held as follows:- “2. The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither 5 the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualification laid down by the rules for the post. However, to this general rule which is to be followed strictly in very case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate ground, the object being to relieve the family of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable 6 treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.” 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 employmenet is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial 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.” Thus the respondents will infact be better advised to consider all the aspect of the matter afresh in the light of the aforesaid judgment of Apex Court and in the circular of the State Government dated 05.10.1991, as updated from time to time, within a period of four months from the date of receipt/production of a copy of this order. 7 With the aforementioned observations and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J)