IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1176 of 2007 SURAJ KUMAR, son of late Baijnath Prasad, resident of Mohalla Pathari Toli, Hudapar, Maner, P.O. and P.S. Maner in the district of Patna … Petitioner Versus 1. THE STATE OF BIHAR through the Chief Secretary, Bihar, Patna 2. The Secretary, Energy Department, through its Director, Sone Bhawan, Bir Chand Patel Marg, Patna-1 3. The Bihar Renewable Energy Development Agency, through its Director, Govt. of Bihar, Patna 4. The Deputy Development Commissioner, Nawada, District Nawada … Respondents ----------- For the Petitioner : Mr. Dinu Kumar, Adv. For the Respondent no. 3 : Mr. Manu Shankar Mishra, Adv. -------- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (31.03.2011) Mihir Kr. Jha, J. Heard Mr. Dinu Kumar, learned counsel for the petitioner and Mr. Manu Shanker Mishra, learned counsel appearing for the Bihar Renewable Energy Development Agency (BREDA), Respondent no.3. 2. The prayer of the petitioner in this writ application is for issuance of a direction to respondent no.3 to consider the case of the petitioner for his compassionate appointment on the ground of death in harness of his father late Baijnath Prasad on 2nd June, 2001. 3. Mr. Dinu Kumar, learned counsel for the petitioner, has submitted that the 2 father of the petitioner, who was working on the post of Technician, to be explained by Mr. Mishra as Biogas Technician, having served the organization for more than 12 years 9 months had died on 2nd June, 2001 and when an application was filed by his mother for her appointment on compassionate ground the same was not disposed of and subsequently the petitioner had filed an application enclosing the declaration and affidavit of her mother that the appointment of the petitioner may be considered in her place. It is claimed by the petitioner that his such application filed on 23rd July, 2005 well within the prescribed period of limitation of five years as per Government circular had remained pending for 1½ years and when nothing was done this writ application was filed on 29.1.2007. 4. Mr. Manu Shanker Mishra, learned counsel appearing on behalf of BREDA, has raised a number of contentions but would not be in a position to answer the basic query of this Court as to when an application was filed by the petitioner seeking his appointment on compassionate ground, how could the respondent authority of BREDA 3 having adopted the Government circular of compassionate appointment also to be followed in the case of BREDA would not pass an order either in favour or against the petitioner as with regard to his claim of compassionate appointment. 5. The reliance placed by Mr. Mishra on paragraph 20 of the counter affidavit, reading as follows:- "That with regard to averment made in paragraph no. 10 of the instant writ petition on it is stated that the additional collector, Nawada was ignorant of rules. A temporary employee can not claim pension and appointment on compassionate grounds as per provision or Personnel and Administrative Department." seems to be wholly misconceived, inasmuch as it is not the question of recommendation made by Additional Collector which was material for deciding the claim of the petitioner either in his favour or against the petitioner and even if the Additional Collector, Nawadah had made a wrong recommendation, the BREDA still was under obligation to dispose of the application filed by the petitioner for his appointment on compassionate ground. 6. The BREDA is an authority within the meaning of Article 12 of the 4 Constitution of India and is a society registered under the Society Registration Act fully owned and controlled by the State Government. The BREDA being an authority had an obligation to abide by the policy which itself required that if an organization adopting the Government circular for also its being followed in its own organization it had at least to also ensure that such adopted resolution has to be considered by the authority. If there be any confusion this Court has not been of the opinion that the case of the petitioner for compassionate appointment should have been allowed but then if he had filed an application supporting his case and claim for appointment on compassionate ground that have to be considered by the employer of the father of the petitioner, namely, BREDA in which he was employee. Therefore, this Court would outright reject the first contention of Mr. Mishra as with regard to there being no requirement to pass an order on the application filed by the petitioner seeking his compassionate appointment. 7. The next question would be as to whether the plea of the father of the 5 petitioner occupying the temporary post with an adhoc appointment would be standing in the way of the petitioner for being denied appointment on compassionate ground. 8. Mr. Mishra submits that in absence of permanent post in BREDA there can be no appointment on compassionate ground. It is very difficult for this Court to also accept this submission in the light of the admitted fact that BREDA had adopted the Government resolution dated 5.10.1991 laying down policy of compassionate appointment in Government service. 9. Let it be made clear that anyone had not compelled the BREDA an autonomous body to accept the Government‟s service condition but if the BREDA on its own had decided to follow the government policy of compassionate appointment, it has to thereafter strict to the prescribed norms laid down by the State Government. The Government circular laying down the policy which has been adopted by the BREDA is on record by way of Annexure 1 and categorizes the persons who can be appointed and for sake of clarity its relevant portion is extracted hereinbelow: 6 ^^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`fr 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=] fookfgr iq=h rFkk iq= dh fo/kok iRuh lfEefyr jgsxhA nrd 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;sxh & ¼i½ e`r lsod dh iRuhA ¼ii½ iq=A ¼iii½ vfookfgr iq=hA ¼iv½ iq= dh fo/kok iRuhA ¼M+½ ;fn ifr&iRuh nksuksa ljdkjh lsok esa gksa vkSj fdlh ,d dh e`R;w 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** 10. From the reading of the same it would be clear that the expression „Government servant‟ used in 1(ka), (kha), (ga) and (cha) in the case of BREDA will mean only an employee of BREDA because the employees of BREDA, a society under the Society Registration Act, cannot become a Government servant. Judging from this angle if the requirement laid down in the adopted circular of the Government by the BREDA is taken into account, the person dying in harness would be deemed to be an employee of 7 BREDA giving right to his dependents for being considered on compassionate ground whose appointment was made against a sanctioned post and after following prescribed procedure. The sanctioned post in a cadre can be either temporary or permanent and therefore, it would be very difficult for this Court to accept that there can be no appointment on compassionate ground in BREDA in absence of a permanent post. The Government circular which has been adopted by the BREDA at least does not lay down the requirement of a permanent post as a condition precedent for appointment on compassionate ground. 11. The next aspect would be as to appointment of the father of the petitioner having been made in a prescribed manner. Again here the prescribed manner for appointment in BREDA will not mean an appointment procedure to be followed in Government service. Mr. Mishra has tried to canvass the aspect that since appointment on Class III and IV post in the Government can only be made through the Staff Selection Commission and the father of the petitioner was not appointed through the Staff 8 Selection Commission, his appointment cannot be held to be made in a prescribed manner. In the considered opinion of this Court the employees of BREDA or any Board or Corporation cannot be appointed on the recommendation of the Staff Selection Commission whose role is confined only to make recommendation for appointment in government service. The post of employees in BREDA is not a Government post. It may have the certain Government help or support for running the organization but that will not mean that either the BREDA is a wing of Government or its employee is a Government servant. Obviously for this purpose the Government norms of making appointment on Class III post on recommendation of Staff Selection Commission had not to be followed in the case of appointment of the father of the petitioner. 12. Mr. Mishra then would rely on a judgment of the Apex Court in the case of State of Haryana & ors. vs. Rani Devi & anor., reported in (1996) 5 SCC 308, with a specific reference to paragraph 8 which for the sake of clarity is also quoted hereinbelow: “According to us, when the 9 aforesaid Government Order dated 31.10.1985 extends the benefit of appointment to one of the dependents of the “deceased employee” the expression “employee” does not conceive casual or purely ad hoc employee or those who are working as apprentices.” 13. From a reading of the aforementioned judgment it is clear that it has referred to the facts of that case relating to a Government order dated 31.10.1985 by using the expression “deceased employee”. This Court is not aware as to whether the expression “employee” mentioned therein referred to only permanent employee or temporary employee. None-the-less what has been laid down by the Apex Court is that expression “employee” will not conceive casual or purely ad hoc employee. Here in this case the BREDA has not brought on record any material except a bald statement that the father of the petitioner was working as temporary employee. The concept of temporary, ad hoc, casual or daily employee in service jurisprudence will have altogether different meanings and if a person has continued to work for more than 12 years in capacity of temporary employee, he cannot be termed to be an adhoc employee so as to be denied the benefit of 10 consideration of his dependent for appointment on compassionate ground. Judged from this background the ratio laid down by the Apex Court in the case of Rani Devi (supra) cannot be made applicable to the present case where there is a clear Government policy in circular dated 5.10.1991 duly adopted by BREDA specifying categories of persons who can be appointed on compassionate ground and does not eliminate the category of an adhoc employee, though appointed against a sanctioned post. 14. Mr. Mishra then would rely on the judgment of the Apex Court in the case of Union Bank of India & ors. vs. M. T. Latheesh, reported in (2006) 7 SCC 350, to submit that the very concept compassionate appointment as such is in violation of mandate under Article 14 of the Constitution of India and in fact has been deprecated in the said judgment of the Apex Court. The reading of the aforesaid judgment, however, would go to show that the Apex Court in paragraph 37 has clearly laid down that “ it is settled law that the principles regarding compassionate appointment that compassionate appointment being an exception to the general rule the appointment has to be exercised only in warranting situations and 11 circumstances existing in granting appointment and guiding factors should be financial condition of the family. … … … “ 15. From the reading of ratio the said judgment of Apex Court it is, therefore, clear that the policy of compassionate appointment has to be strictly construed and applied and the financial condition of the family of the deceased employee has to be taken into account. Infact the same is also the scope of the Government circular dated 5.10.1991 adopted by the BREDA. 16. The question, therefore, would be whether can an authority having adopted the Government circular for considering the case of compassionate appointment in its organization can be permitted to take a plea of there being no possibility of compassionate appointment at all? In the considered opinion of this Court once the BREDA has adopted the Government circular with regard to considering the case of compassionate appointment of its employee it will have to decide such cases by giving individual consideration and decide the same strictly in accordance with the policy so adopted by the BREDA. There can be no short 12 cut by the BREDA by taking a plea that even if it had adopted such a government policy, no appointment on compassionate ground can be made in the organization. To that extent the earlier example given by Mr. Dinu Kumar with regard making appointment on compassionate ground of Smt. Kalawati Devi by itself be a good ground to at least compel the BREDA to consider the case of the petitioner. 17. Judged from all these angles this Court would find that when the BREDA has not passed any final order on the application of compassionate appointment filed by the petitioner this Court having noticed that the BREDA has in fact has adopted the Government resolution for compassionate appointment, would hold that such non-consideration by the BREDA is wholly unjustified. 18. That being so, this Court would direct the BREDA to consider the case of the petitioner for appointment on compassionate ground in the light of observationd and findings recorded above and in case such claim of the petitioner is rejected the authorities will be required to pass a 13 reasoned order. Such exercise must be completed by the authorities of the BREDA within a period of three months from the date of receipt/ production of a copy of this order. 19. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Patna High Court Dated the 31st March 2011 A.F.R./Surendra/