IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9412 of 2006 MD.JALALUDDIN, son of late Md. Mohiuddin Ansari, resident of Mohalla-Khanjarpur, Masjid lane, P.S. Barari, District- Bhagalpur. Versus 1. THE STATE OF BIHAR 2. The Commissioner-cum-Secretary, Water Resources Department, Government of Bihar, Patna. 3. The Under Secretary, Water Resources Department, Government of Bihar, Patna. 4. The Chief Engineer, Water Resources Department, Bhagalpur. 5. The District Magistrate-cum- Chairman, District Compassionate Committee, Bhagalpur. 6. The Executive Engineer, Irrigation Division, Water Resources Department,Bhagalpur. 7. The Deputy Collector, Establishment, Bhagalpur. --- For the petitioner: Mr. Satish Chandra Mishra, Advocate Mr. Nurul Hoda,Advocate For the State: Mr. Kaushal Kumar Jha,S.C.18 Mr.Baidya Nath Thakur, A.C.to S.C.18 --- 2. 30.3.2009 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner seeks quashing of letter No.222/IC dated 29.5.2001 ( Annexure-10) issued under the signature of the Under Secretary, Department of Water Resources, Government of Bihar, Patna respondent No.3, by which the claim of the petitioner for appointment on compassionate ground has been rejected in the light of letter No. 4735 dated 19.5.1992 ( Annexure-11). The salient facts in the present matter are that the father of the petitioner while working as Government servant died on 12.4.1982. The petitioner, at that time, was a minor aged about 11 years since his date of birth is 20.9.1970. On 11.4.1994, the petitioner filed an application for compassionate appointment. However, the case of the petitioner was not taken up by respondent-authorities and ultimately his application was forwarded to the District Magistrate, Bhagalpur by letter 2 dated 4.7.1995. In its meeting dated 4.1.1996,the District Compassionate Committee, Bhagalpur rejected the case of the petitioner on the ground that he was not qualified for appointment on compassionate ground since he did not fulfil the qualification regarding age. Subsequently, on the representation of the petitioner, the matter was re-considered by the District Compassionate Committee in its meeting dated 31.10.2000 and relying upon a decision of this Court dated 3.4.2000 in C.W.J.C. No.289/2000: Md. Anwar Sadat Vs. State of Bihar and others, his case was allowed. Subsequently, by the impugned order dated 29.5.2001 issued under the signature of Under Secretary, Water Resources Department, the case of the petitioner was rejected in terms of Circular No.4735 dated 19.5.1992 of the Personnel and Administrative Reforms Department. Aggrieved by the same, the petitioner has come to this Court. Learned counsel for the petitioner submits that the petitioner having applied within five years period prescribed for filing an application for compassionate appointment, his case was fit to be considered and was rightly considered. Subsequently, the District Compassionate Committee in its meeting dated 31.10.2000 recommended the case of the petitioner in his favour. In support of the same, learned counsel for the petitioner also relies upon a decision of the Supreme Court in the case of Syed Khadim Hussain v. State of Bihar and others : (2006) 9 SCC 195. Learned counsel for the State, on the other hand, supports the impugned order on the basis of Circular No. 4735 dated 3 19.5.1992 of the Personnel and Administrative Reforms Department, Government of Bihar. It is submitted that under the said Circular if a minor child of the deceased Government servant attains majority after many years, his case cannot be considered for the purpose of compassionate appointment and has been directed to be rejected. At the out-set, it is submitted that the said Circular was not brought to the notice of the Court in the case of Md. Anwar Sadat and, therefore, to that extent the decision is per incurium since in the case of Umesh Kumar Nagpal Vs. State of Haryana: (1994) 4 SCC 138 it has been held by the Supreme Court that any claim for appointment on compassionate ground can only be made on the basis of the Rules, Regulations or Circulars of the Government and not otherwise. Learned counsel for the State further relies upon a decision of the Supreme Court in the case of State of J & K and others Vs. Sajad Ahmed Mir: ( 2006) 5 SCC 766, in paragraph Nos. 11 and 15 it has been laid down as follows: “11. We may also observe that when the Division Bench of the High Court was considering the case of the applicant holding that he had sought “compassion”, the Bench ought to have considered the larger issue as well and it is that such an appointment is an exception to the general rule. Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say “goodbye” to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution. 15. In Sushma Gosain v. Union of India it was observed that in the claims of appointment on compassionate grounds, there should be no delay in appointment. The purpose of providing 4 appointment on compassionate ground is to mitigate the hardship due to the death of the breadwinner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress.” On a consideration of the rival submissions, this Court is unable to find any force in the submissions of learned counsel for the petitioner. It is evident that the petitioner was just above 11 years of age on the date of death of his father and attained majority after 6 ½ years of the death of his father. The fact that he had immediately filed an application for compassionate appointment can be of no avail to him since such an application by a minor aged about 13 years is itself incompetent. On the date when the five years period for filing an application had elapsed, the petitioner was not yet a major and thus no valid application stated to have been filed by him could be considered for appointment on the completion of five years of the death of his father. So far as the reliance upon the case of Md. Anwar Sadat is concerned, the same has not taken into consideration the Circular No.4735 dated 19.5.1992, which clearly provides that a minor child of the deceased Government servant, who attains majority after many years, is not eligible to be considered for appointment on compassionate ground. The question of many years as stated in the said Circular has to be considered in the light of the period prescribed for filing an application for compassionate appointment, namely, five years, as also the principles laid down by the Supreme Court in the case of Umesh Kumar Nagpal (supra) as well as in Sajad Ahmed’s case (supra). From the said Circular and the decisions of the Supreme Court, it is evident 5 that public employment cannot be given on compassionate ground irrespective of the passage of time. If a person was not even eligible for appointment within five years period considered as the upper limit for filing an application for appointment on compassionate ground then it must be held that he cannot be eligible for being appointed on compassionate ground after subsequently attaining the majority. So far as reliance placed by learned counsel for the petitioner on Syed Khadim’s case (supra) is concerned, the same has been disposed of in the peculiar facts and circumstances of the said case under Article 142 of the Constitution, which is an exclusive power of the Supreme Court, and no such jurisdiction has been conferred upon the High Court. In any case, in the said matter the widow of the deceased employee had herself applied within time and her application had been rejected without assigning any reason and that was an important consideration when the order was passed by the Apex Court invoking its power under Article 142 of the Constitution. In the present matter more than 27 years have, by now, elapsed since the death of the deceased employee and there can be no justification for compassionate appointment if the family concerned has survived the financial hardship caused upon the death of their bread-earner so many years back. There is thus no merit in the writ petition and it is, accordingly, dismissed. VPS ( Ramesh Kumar Datta,J.)