IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.685 of 2008 ASHISH KR.JHA, son of late Krishna Deo Jha, resident of village Bhramarpur, P.S. Bihpur, District Bhagalpur … Petitioner Versus 1. THE STATE OF BIHAR 2. The Secretary, Public Health Engineering Department, Govt. of Bihar, Secretariat, Patna 3. The Chief Engineer (Rupankan), Public Health and Engineering Department, Patna 4. The Executive Engineer, Public Health Engineering Department Bhagalpur (East), Patna … Respondents ------- For the petitioner: Mr. Amresh Kumar Singh,Adv. For the respondents:Mrs. Nilu Agrawal, G.A.X ------- P R E S E N T THE HON‟BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (18.4.2011) Mihir Kumar Jha,J., Heard counsel for the petitioner and the counsel for the State. The prayer of the petitioner in this writ application reads as follows: “That this is an application for issuance of appropriate writ, order/ direction commanding the respondents to grant compassionate appointment to the petitioner and also to quash the memo no. 218 dated 29.2.2000 of the respondent no.3 by which compassionate appointment was refused with consequential benefit.” Mr. Amresh Kumar Singh, learned counsel for the petitioner, in support of 2 the aforementioned prayer would submit that since the father of the petitioner was working for a period of more than five years in the work charge establishment he would be deemed to have become a regular employee and therefore, the impugned order rejecting the case of the petitioner for appointment on compassionate ground solely on the basis that the father of the petitioner was working as a Khalasi in the work charge establishment suffers from an apparent error. He would further submit that there has been at least one case to the knowledge of the petitioner where one Bibha Devi, a dependent of a work charge employee, was appointed on compassionate ground and to that extent he would rely on the averments made in paragraph 6 of the writ application which according to him has also not been denied by the respondents in their counter affidavit. He would further placed reliance on an unreported judgment/ order of this Court in C.W.J.C.No. 1085/2003 (Shashibhushan Sharma vs. the State of Bihar & ors.). Counsel for the State, on the other 3 hand, would submit that the issue relating to appointment of a dependent of a work charge employee stands settled by the Division Bench judgment of this Court in the case of Dilip Kumar Bhattacharya vs. State of Bihar & ors., reported in 2004(4) PLJR 889, wherein the Division Bench has laid down the law that the dependent of a work charge employee would not qualify for appointment on compassionate ground, inasmuch as the policy of the Government itself prescribes that the deceased employee must be holder of a sanctioned post in order to qalify for consideration of his ward/ dependent for appointment on compassionate ground. He would further submit that when the case of Bibha Devi was considered by the respondents there was no clarity as with regard to Government decision, inasmuch as such a decision came only on 24.1.1994 (Annexure „A‟), whereas the precedent case of Bibha Devi relied by the petitioner is of the year 1984, inasmuch as her appointment was made on 2.2.1984. Explaining the case of Shashibhushan Sharma (supra) learned counsel for the State has submitted that the same no 4 way was concerned with compassionate appointment, inasmuch as it was an issue of pay scale of Shashibhushan Sharma which was the subject matter before this Court. Two things are admitted from the pleadings of the parties. First that the father of the petitioner was never notified as a regular employee and in fact remained in work charge establishment till his death on 21.2.1998. The over emphasized submission of the learned counsel for the petitioner of there being deeming provision in view of 1984 circular has to be also rejected for a simple reason that when no order of this nature for the father of the petitioner to be treated as regularized staff came to be issued in his life time he did not seek any declaration either from the competent authority or this Court that he should be given the benefit of 1984 circular by notifying him to have been already regularized in service. The inevitable conclusion, therefore, would be that the father of the petitioner had remained content with his status as work charge employee and slept over his right by waiving 5 the alleged benefit under 1984 circular and died only as a work charge employee. Once this aspect becomes clear there would be no difficulty in accepting the submission of the learned counsel for the State that the case of the petitioner would be squarely covered by the ratio of the Division Bench judgment in the case of Dilip Kumar Bhattacharya (supra), inasmuch as the Division Bench has gone into all possible facets with regard to appointment on compassionate ground of a dependent of a work charge employee vis-à-vis right of consideration of a dependent employee working in work charge establishment. This Court sitting singly, therefore, cannot take a different view and is bound to follow the ratio of the case of Dilip Kumar Bhattacharya (supra). At this stage counsel for the petitioner would submit that the Division Bench judgment did not take into consideration the 1984 circular and therefore, the said judgment is per incurium. In the considered opinion of this Court reading of 1984 circular placed by the 6 petitioner seems to be wholly misplaced. 1984 circular only lays down the minimum requisite period for consideration of a person working in work charge establishment of being taken into regular establishment. It does not lay down that moment a person will complete five years in work charge establishment he would automatically become regular employee. In fact there is distinction between regular establishment and the work charge establishment. There are schemes under which initial appointment was made on temporary basis for its completion and year to year the budgetary allocation is made for this completion of the scheme and the persons employed against those scheme are brought under the work charge establishment till completion of the scheme. That is how the PWD Code from 1949 has clearly defined the difference between work charge employees and regular employees. This Court, therefore, would not be in a position to accept the submission that any and every work charge employee on completion of five years would automatically become a regular employee. In any event this submission of 7 the petitioner cannot take him any further because the Division Bench in the case of Dilip Kumar Bhattacharya (supra) had also considered this aspect with regard to status of a work charge employee and the scheme on compassionate appointment for reaching to a clear conclusion that the dependent of work charge employee in terms of the Government policy contained in Circular dated 5.10.1991 would not be eligible for appointment on compassionate ground, as such the deceased employee continuing in work charge establishment does not hold a sanctioned post. The second aspect as to whether there was a similar circular of the Department in the year 1983-84 when Bibha Devi was appointed on compassionate ground may not be relevant for two reasons, namely, even if the case of Bibha Devi was known to the petitioner he did not cite the said case before the authority nor the authority was allowed to go into this aspect. The impugned order was passed on 29.2.2000 and therefore, if after this order some representation was filed by the petitioner citing the case of 8 Bibha Devi that by itself will not invalidate the impugned order, inasmuch as at least before that day the authority‟s attention was never drawn to the issue of appointment of Bibha Devi much less discrimination alleged by the petitioner by citing example of Bibha Devi. Reference in this connection may be usefully made to the judgment of the Apex Court in the case of State of Bihar vs. Upendra Narain Singh & ors., reported in 2009(5) SCC 65, wherein it has been held that an illegality cannot be perpetuated by Court in exercise of its power under Article 226 of the Constitution of India. This Court can also not ignore the fact that the petitioner has pressed the cause of action of the year 1998 when the right of consideration had accrued to him on account of death of his father by filing this writ application on 7.1.2008 which would make this writ application belated by a period over ten years and the only explanation that the petitioner was awaiting the disposal of the representation after rejection of his case by the impugned order 9 dated 29.2.2000 definitely can not be said to have explained inordinate delay of 8-10 years. The submission of Mr.Singh as with regard to the case of Shashibhushan Sharma (supra) also has to be rejected, inasmuch as that case did not deal with compassionate appointment and was only dealing with the interpretation of circular dated 20th October, 1984 which in the considered opinion of this Court for the purpose of grant of pay scale can have no bearing keeping in view the relief sought for compassionate appointment. Thus, bound by the binding precedent of the Division Bench of this Court in the case of Dilip Kumar Bhattacharya (supra) this Court will have no option but to dismiss this application. That being so, this writ application is devoid of any merit and is, accordingly, dismissed. (Mihir Kumar Jha,J.) Patna High Court The 18th April,2011 Surendra/ N.A.F.R. 10