IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.648 of 2010 1. Uttar Bihar Gramin Bank through its Chairman Head Office- Kalambagh Chowk, P.S.- Kazi Mohammadpur, Distt.- Muzaffarpur 2. The Regional Office, Uttar Bihar Gramin Bank through the Regional Manager, Darbhanga 3. The Chairman, Uttar Bihar Gramin Bank, Muzaffarpur 4. The Board of Directors, Uttar Bihar Gramin Bank, Muzaffarpur 5. The General Manager, Uttar Bihar Gramin Bank, Muzaffarpur ............Appellants Versus 1. Chandra Mohan Mishra S/O Late Bhogendra Kumar R/O Vill.- Rashiwari, P.S.- Darbhanga, Distt.- Darbhanga 2. Union of India through the Secretary, Finance Banking Division, New Delhi 3. The Chief General Manager, NABARD Central Office, Mumbai ..........Respondents ----------- For the Appellants :Mr. Prabhakar Jha, Advocate For the Respondent no.1: Mr. Mukesh Kumar No.3, Advocate 6 3.5.2011 Heard Mr. Prabhakar Jha for the appellant, and Mr. Mukesh Kumar No.3 for respondent no.1. This appeal has been preferred under clause 10 of the Letters Patent of the High Court of Judicature at Patna and raises a grievance with respect to the order dated 4.1.2010, passed in C.W.J.C.No.17475 of 2009 (Chandra Mohan Mishra Vs The Union of India & Ors), whereby the writ petition has been allowed, it has been observed that the circular dated 9.6.2006 will not apply to the present case and the writ petitioner’s case for appointment on compassionate ground has to be considered on the basis of the scheme applicable 2 on the date of death of the employee. 2. A brief statement of facts essential for disposal of the appeal may be indicated. The father of the writ petitioner was a sweeper-cum-messenger in the appellant Bank, who died in harness on 14.8.2005. The writ petitioner filed an application with the appellant Bank for appointment on compassionate ground. The process commenced. However, before a final decision could be taken, the scheme then in force was substituted by the circular dated 9.6.2006, whereby the scheme for appointment on compassionate ground was given up on account of financial implications involved in such an appointment, and instead ex-gratia payment was made admissible. The Bank sought to apply the circular dated 9.6.2006, in the writ petitioner’s case leading to the aforesaid writ petition. The learned Single Judge has allowed the writ petition with the observation that the circular of 9.6.2006 cannot have retrospective operation. Therefore, the Bank has been directed to consider the writ petitioner’s case on the basis of the scheme prevalent on 14.8.2005, the date of death of the father of the writ petitioner. Hence, this appeal at the instance of the Bank. 3 3. Learned counsel for the appellant submits that the policy under lying the circular of 9.6.2006 has to be appreciated. The Government of India had reviewed the entire situation with respect to the appointments on compassionate ground which was causing heavy loss to different public sector undertakings, and they were unable to bear the load of such appointments. While formulating the circular dated 9.6.2006, the Government of India relied on the following observations of the Supreme Court in the case of Umesh Kumar Nagpal vs. State of Haryana and ors, reported in JT 1994(3) SC 525: “.......As a rule, appointment in the public services should be made strictly on the basis of open invitations of applications and merit. However, to this general rule, there are some exceptions carved out in the interests of justice and 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. The whole object of granting compassionate employment is thus to enable the candidate 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 of the deceased will not be able to meet the crisis, that a job is to be offered to the eligible member of the family”. 4 4. We have perused the materials on record and considered the submissions of the learned counsel for the parties. Law is well settled that all public employment in this country is a national wealth, and every citizen should have unrestricted to access to the same which is possible only if the vacancy is widely advertised so that all eligible person gets opportunity to apply and be considered for appointment. The appointment on compassionate ground is a back door entry is based on descent, and is in violation of the established principle of law. It is for this reason that the Courts have generally set their faces against appointment on compassionate ground, except for limited situations where it is permissible by the rules or policy decision of the employer. In substance, no person can insist for appointment on compassionate ground in the absence of rules a policy decision, or discrimination is alleged and proved. In the facts and circumstances of the present case, we agree with the policy underlying the circular of 9.6.2006, that appointment on compassionate ground was causing undue financial load on public sector undertakings and, therefore, a viable solution had to be found out which 5 could be reconciled with the needs of the family left high and dry on account of the sudden demise of the bread- winner of the family. We are of the view that the Government of India has taken a just and reasonable decision by substituting the old circular providing for appointment on compassionate ground, by the said circular of 9.6.2006 whereby provision has been made for ex-gratia payment according to status of the late employee. This effectively takes care of the needs of the family in difficult circumstances, the practical problems of the Bank, as well as the principle of law that appointment on compassionate ground is in substance a backdoor entry and is based on descent. 5. In the facts and circumstances of the case, we prefer to take the view that the circular dated 9.6.2006, shall apply to all applications of compassionate appointment pending on 9.6.2006, and thereafter. The admitted position is that the application of the writ petitioner was pending on 9.6.2006 and shall be accordingly disposed of. 6. There is yet another aspect of the matter. In the case of financial break-down of an organization, it is the government or the organization which has to take care of 6 KHAN the same. The court shall not provide any financial assistance. It is, therefore, left to the best judgment of the concerned organization. 7. In the result, we disagree with the order dated 4.1.2010, passed by the learned Single Judge in C.W.J.C.No.17475 of 2009. The case of the writ petitioner should be considered in accordance with the policy decision of 9.6.2006 without further loss of time. In case he is found entitled to the benefit under the policy decision, he shall be entitled to interest @ 6% w.e.f. 1.3.2006 till the date of payment. We have given six months margin to the Bank which we consider reasonable time to take the final decision in the matter. (S.K. Katriar,J) (S.P.Singh,J)