IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11240 of 2008 BIRENDRA KUMAR, son of late Shiv Lahal Prasad, resident of village Lohara, P.O. Parwatpur, P.S. Chainpur, District Kaimur Bhabhua … Petitioner Versus 1. THE STATE OF BIHAR through the Chief Secretary, Govt. of Bihar, Patna 2. The D.G. cum I.G. of Police, Bihar, Patna 3. The D.I.G. of Police, Tirhut Range Muzaffarpur 4. The Commandant, B.M.P.6, Muzaffarpur 5. The District Magistrate, Muzaffarpur cum Chairman Compassionate Appointment Committee … Respondents ----------- 3. 9.5.2011 Having heard counsel for the parties and taking into account that the petitioner’s case for appointment on compassionate ground has already been considered and rejected by the competent authority on the ground that there was some sort of means of sustenance to the family in form of employment of the elder brother of the petitioner, this Court would not be in a position to redirect the respondents to consider the case of the petitioner for appointment on compassionate ground merely because the Deputy Inspector General had sought to give a direction to the Superintendent of Police for placing the matter once again for its consideration by the District Compassionate Appointment 2 Committee. 2. In the considered opinion of this Court such reference by the D.I.G. was wholly uncalled for and at least not in keeping with the procedure prescribed in the Government Policy for compassionate appointment contained in the circular dated 5.10.1991 wherein it is only the recommending authority, where the deceased employee was working, has been given a role to place the matter before the District Compassionate Appointment Committee. Thus, the reference of D.I.G.’s letter cannot create a right in the petitioner for his reconsideration. 3. The next aspect would be as to whether the earlier decision taken by the authority on 10.8.2006 suffered from any such procedural error which has vitiated the whole consideration of the case of the petitioner. The Committee while considering the case of the petitioner had taken a view that the elder brother of the petitioner, namely, Surendra Thakur, was working as a Constable in Police Department and therefore, his case was fit for its being 3 rejected in terms of the Government policy. The plea taken by the petitioner and sought to be pressed before this Court by his counsel that such elder brother of the petitioner had already separated in the life time of his father and therefore, had been left with no concern with the rest of the family will be also of no avail, inasmuch as there is no written document as with regard to the aforementioned partition. To that extent the affidavit of the elder brother relied by the petitioner itself would be a complete answer wherein he had stated as follows: uksVjh HkHkqvk ’kiFk i= eSa lqjsUnz Bkdqj firk Lo0 f’koVgy izlkn mez yxHkx 29 o"kZ xzke yksgjk iks0 ioZriqj] Fkkuk&pSuiqj] ftyk dSeqj] HkHkqvk 'kiFk iwoZd fuEufyf[kr c;ku djrk gwW& 1- ;g fd eSa lqjsUnz Bkdqj firk Lo0 f'koVgy izlkn fcgkj iqfyl esa ukSdjh djrk gwW tks bl le; Hkkstiqj vkjk esa dk;Zjr gwWA 2- ;g fd esjs firk Lo0 f'koVgy izlkn ch0,e0ih0&6 eqtIQjiqj esa flikgh ds in ij dk;Zjr Fks ftudh lsokdky ds nkSjku gh fnukad 27-3-2002 dks e`R;q gks xbZA firk ds vpkud e`R;q dh lwpuk ekrk vrjoklh nsoh dks feyh ftlls mudh Hkh e`R;q vpkud gkVZ vVsd ds nkSjku gks xbZA 3- ;g fd firk Lo0 f'koVgy izlkn dh e`R;q ds ckn vuqdEik ds vk/kkj ij ukSdjh gsrq NkasVs f}rh; HkkbZ fojsUnz dqekj dks feys] ftlls viuk Hkfo"; ,oa Hkj.k iks"k.k dj ldsA 4- ;g fd eq>ls ,oa firk th ¼f'koVgy izlkn½ ls :i;s iSls dks ysdj gels ckrk ckrh gks tkrh Fkh ftl dkj.k firk th us eq>s ekSf[kd caVokjk dj vyx dj fn;s tks eS [kq'kh jkth iwoZd vius iRuh ,oa cPpksa ds lkFk vyx gks x;k rc ls eSa vc rd vyx gh jg dj viuk rFkk vius ifjokj dk Hkj.k iks"k.k djrk pyk vk jgk gwW vc eq>s nksuska HkkbZ fojsUnz dqekj ,oa misUnz dqekj ls dksbZ okLrk ljksdkj ugha jg x;k gSA 5- ;g fd esjs NksVs HkkbZ fojsUnz dqekj dks ukSdjh feyus ls eq>sa ;k esjs ifjokj dks fdlh Hkh izdkj dk dksbZ vkifRr ugha gSA 6- mijksDr lHkh ckrsa esjh tkudkjh esa lgh ,oa lR; gS ftls 4 lgh ikdj viuk gLrk{kj cuk fn;kA 'kiFkdRrkZ lqjsUnz Bkdqj 4. Such an affidavit sworn by the elder brother of the petitioner on 2.12.2006 much after the death of his father on 27.3.2002 would itself go to show that the same was a tailor made statement for the purpose of espousing the cause of the petitioner and cannot be said to be proof of family partition, where infact he had said that such compassionate appointment would enable the petitioner to support himself. The scheme and object of the compassionate appointment however is for rehabilitation of the family of the deceased and not only one person of the family. Infact after the death of the mother of the petitioner as admitted in the aforesaid family there was none else to be rehabilitated except the petitioner and thus this Court would not find that the condition of the family was in penury. The question of appointment on compassionate ground has to be always distinguished from a right of a person claiming appointment on merit. The over all financial situation of the family being of paramount importance, it 5 was pointed out by the Apex Court in the case of Umesh Kumar Nagpal vs. State of Haryana & ors., reported in (1994)4 SCC 138. “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 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 6 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 7 lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable 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. 8 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.” 5. Thus, it would become clear that the petitioner cannot claim appointment on compassionate ground as a matter of right only because he happens to be the son of the deceased employee. The fact remains that today the family has only two dependents, inasmuch as the widow also has died and therefore, it cannot be said that the death cum retirement benefit as also one job in the family would still lead to condition of penury for the petitioner. 6. Learned counsel for the petitioner, however, has relied on a judgment of the Division Bench in the case of Anil Kumar vs. State of Bihar & ors., reported in 2007(4) PLJR 511. He would submit that in a similar case where the wife was living separately in her Maike and there were proof of partition by way of Panchnama that was treated to be sufficient of the 9 wife of the person concerned living separately. The Division Bench having noted this aspect had held as follows: “7. The purpose of compassionate appointment is to provide immediate succour to the bereaved family and Rule 1991 in this regard is very specific that one of the dependents of the deceased should be given appointment for immediate succour to the bereaved family. The factum of employment of wife of the appellant, in this view of the matter, would hardly be a ground to refuse appointment on compassionate ground in the given facts and circumstances of the case.” 7. Learned counsel for the petitioner would submit that this is absolutely in keeping with the Government policy contained in letter No. 895 dated 18.2.1995 permitting consideration of even a second son for appointment on compassionate ground where the first one was already in service prior to death of the deceased employee. To that extent he has also referred to the order of this Court in the case of Bharat Prasad vs. the State of Bihar & ors., reported in 1998(1) PLJR 125. 10 8. In the considered opinion of this Court the later Division Bench judgment in the case of Anil Kumar (supra) having not considered the earlier Division Bench in the case of Vishal Kumar vs. The State of Bihar & ors., reported in 2004(2) PLJR 453, being per incuriam cannot be followed by this Court. The reliance placed by the learned counsel on the order of learned single judge in the case of Bharat Prasad is equally misplaced inasmuch as not only the same was considered by the Division Bench in the case of Vishal Kumar (supra) but also distinguished by holding that the learned single judge in Bharat Prasad's case (supra) did not decide the validity of the guideline dated 18.2.1995 requiring consideration of the case of compassionate appointment of a person in whose family and her dependent was already gainfully employed. The law in this regard on this very aspect has been laid down in the case of Vishal Kumar (supra) in the following terms: “3. The matter relates to seeking a job in the Rural Engineering Organization Department. The job was denied by the Committee on the 11 ground that the elder brother of the appellant had been gainfully employed in the State Bank of India. The contention of the appellant is to the effect that his brother and father were separate and evidence was offered, to the effect, that this was so. 4. The court is afraid, this logic of law will not apply for if there will be rivalry within the family as in the present case between the father and the son or between siblings, a job can be offered on the principle of compassionate appointment only to one person and when one is gainfully employed, there is no obligation to offer a job in an otherwise backdoor entry employment. 5. An order has been cited in the case of Bharat Prasad vs. State of Bihar and others, reported in 1998(1) PLJR 125. From paragraph 4 of the order, it is clear that the learned Judge has clearly mentioned that he is not deciding the validity of any guideline and merely permitted filing of a representation. This case does not apply to the circumstances of the case under consideration.” 9. As noted above aforesaid law having been not noticed by the later 12 Division Bench, in the case of Anil Kumar (supra) would render the subsequent Division Bench per incurium and thus not a binding a precedent. In fact this matter was directly addressed to by the Apex Court in the case of S. Mohan Vs. Government of Tamil Nadu reported in (1998) 9 S.C.C. 485, wherein it was held that if there were already person employed in the family that by itself would be a good ground to reject the claim for appointment on compassionate ground. Compassionate appointment cannot be a panacea for all sort of death of a employee in harness and has to be strictly governed by the policy which in no uncertain terms lays down that the family must be in a penurious condition so as to get benefit of appointment on compassionate ground. Here in this case the death has taken place on 27.3.2002 and the family has very well survived and therefore, this Court would not find any reason to direct the authorities to reconsider the case of the petitioner after lapse of nine years from the date of death of the deceased employee in the light of law laid down by the Apex Court in the case of 13 Umesh Kumar Nagpal (supra) and S. Mohan (supra) as well as this Court in the case of Vishal Kumar (supra). 10. Thus, for the reasons indicated above, this Court does not find any merit in this application and the same is, accordingly, dismissed. 11. This case has also Perused the enquiry report of the Registrar General placed in the sealed cover which has been submitted in view of the order of this Court dated 4.5.2011, relevant portion whereof reads as follows:- “It is really unfortunate for this Court to note that despite filing of the counter affidavit in the office of this Court, the same are not being placed on record. In this case, a counter affidavit was filed in the office on 25.4.2011 and yet the office has not placed it on record. Today itself in another case, namely, CWJC No. 11168 of 2008, the same situation was prevailing, wherein, also a counter affidavit filed in the office was not placed on record till today. Incomplete records lead to only adjournment of the case and, therefore, the Registrar of this Court is directed to institute an enquiry as to who are the persons responsible for not placing the counter affidavit on record. Such enquiry must be completed within a period of three days from today and the report be placed on Monday. 14 12. The Registrar General in the light of his report is hereby directed to take prompt steps for issuing warning against the erring dealing Assistant/ Section Officer. It should be made clear to them that repetition of the same misconduct would make them liable for being proceeded for a major punishment. The matter should be closed for the present by issuing a warning. 13. The Registrar General should also direct the Sectional Heads to submit a weekly report to his office as with regard to there being no counter affidavit filed in the office to be detained in the office without its being placed in the concerned file. It is made clear that the responsibility of the office is not over by placing the incomplete record before the Bench, especially when the High Court Rules requires filing of any and every document/ affidavit in the office and not in the Bench. Keeping this aspect to be of paramount importance this Court would direct the Registrar General to ensure that not only briefs are complete but they are also 15 paginated even in the case of belated filing of the affidavit by the concerned dealing clerk by seeking the file from the Bench Clerk. 14. The report of the Registrar General perused by this Court is directed to be kept in sealed cover for its being opened and acted upon by him alone. Let the records of this case been accordingly placed before the Registrar General for doing the needful. (Mihir Kumar Jha,J.) Surendra/