IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5820 of 2007 Santosh Kumar Pandey, son of late Bikrama Pandey, resident of Muskat, P.S. Natwar (Rohtas), District Rohtas. --------- Petitioner Versus 1. The State of Bihar through the Collector, Rohtas, District Rohtas. 2. The District Compassionate Appointment Committee, Rohtas. 3. The Sub-Divisional Officer, Bikram. 4. The Deputy Collector (Incharge), District Rohtas Branch Rohtas (Sasaram). --------- Respondents ----------- For the Petitioner : Mr. Dhananjay Kumar, Advocate For the State : G.P.-3 ------------- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (01.04.2011) Mihir Kumar Jha, J. Heard Mr. Dhananjay Kumar, learned counsel for the petitioner and learned counsel for the state. The prayer of the petitioner in this writ application is for issuance of a direction for appointment of the petitioner on compassionate ground. Mr. Kumar would submit that though the petitioner is maternal grand-son (Nati) of the deceased employee, a Chaukidar but he would qualify for appointment on compassionate ground in view of the policy specially made by Home Department for the post of Chaukidar and Dafadar but the District Compassionate Appointment Committee has rejected the case of the petitioner on a wholly illegal ground that a maternal grand-son (Nati) cannot be appointed in a Government service in view of the general policy 2 of the compassionate appointment of the State of Bihar. In this context, he also relies on an order of this Court dated 13.4.2005 in CWJC No.12233 of 2004 Gangia Devi & Anr. Vs. State of Bihar & Ors. wherein according to him it has been held that in view of the specific circular of the State Government dated 20th December, 1995, the applicability of the general policy of the Government for making compassionate appointment dated 5.10.1991 so far it relates to the post of Chaukidar and Dafadar, has been put to rest, inasmuch as, even a Nati has been held to be entitled for appointment on compassionate ground. He would further submit that in any event the petitioner no longer remained a Nati because he was adopted by the deceased employee as his son, inasmuch as, the deceased employee had only two daughters and the petitioner was the son of one of the two daughters. In this case, a counter affidavit has been filed, wherein, the respondents have explained that as per the Government policy dated 5.10.1991, only four categories of the dependant of the deceased employee can be appointed in Government service on compassionate ground, namely, the wife, the son, the unmarried daughter and the widow of the pre-deceased son and since the petitioner did not fall in any of the four categories and was actually maternal grand- son of the deceased employee, his case was rejected 3 as per the Government policy dated 5.10.1991. It is well settled that appointment on compassionate ground has to be strictly confined to the policy framed by the appointing authority. Such appointment, in fact, being exception to the general rule and as a matter of fact also in teeth of the mandate under Article 14 & 16 to the Constitution of India, has to be well circumscribed by the limitation imposed in such policy. The policy of the State of Bihar, right from the beginning from 12.7.1977 till date, has remained unaltered so far it relates to category of the dependant employee i.e. the four categories enumerated above. The maternal grand-son was never included in the category of dependant for the purposes of compassionate appointment by the State of Bihar. Therefore, when the deceased employee namely, Harbansh Pandey had died in harness on 11.7.1991 leaving behind only two daughters and both married, there was none who could have been appointed on compassionate ground. Let it be noted that the petitioner, in fact, as per his own affidavit sworn in support of this writ application showing to be 21 years on 25.4.2007, was barely around 7 years of age when his maternal grand-father i.e. the deceased employee had died on 11.7.1991. The very fact that the petitioner was aged about 7 years and thus could not become major in the 4 period of limitation of five years would make him disentitled to claim appointment on compassionate ground. This aspect of the matter stands settled in the judgment of the Division Bench of this Court in the case of Anil Kumar Singh vs. the State of Bihar & ors., reported in 1993(1) PLJR 414. That apart the appointment on compassionate ground after the death of deceased employee on 11.7.1991 had to be made strictly in accordance with the existing policy as then in force in which the petitioner did not fall in the category of the dependents and, that is how, the District Compassionate Appointment Committee had correctly rejected the case of the petitioner. In this regard the reliance placed on the Government circular dated 20th December, 1995 being Annexure-9 which reads as follows:- ^^i= la[;k&9@ys0207&91 x`0vk0&1267@ fcgkj ljdkj x`g ¼vkj{kh½ foHkkxA izs"kd Jh enu izlkn JhokLro ljdkj ds mi lfpoA lsok esa] lHkh izeaMyh; vk;qDr lHkh ftyk inkf/kdkjh lHkh mik;qDrA iVuk&15 fnukad 20 fnlEcj 1995 bZ0A fo"k;& pkSfdnkj@nQknkj ds in ij fu;qfDr ds laca/k esaA egksn; funs'kkuqlkj mi;qDZr fo"k; ds laca/k esa eq>s dguk gS fd jkT; ljdkj us fcgkj jkT; nQknkj&pkSfdnkj iapk;r dh ekaxksa ij Hkfy&Hkkafr lgkuwHkwfriwoZd fopkj djrs gq, fuEukafdr fu.kZ; fy;k%& ¼1½ pkSfdnkjh@nQknkjksa dh fu;qfDr ij x`g ¼vkj{kh½ foHkkx ds i=kad 711 fnukad 21&1&91 }kjk yxk;h x;h jksd dks lekIr dh tkrh gSA ¼2½ fdlh pkSfdnkjh@nQknkj ds fnukad 1&1&90 ds ckn vodk'k izkIr djus 5 ij muds ukWeuh ¼;Fkk mudh iRuh ;k iq= ;k HkkbZ ;k Hkrhtk dk ukrh dks pkSfdnkj ds in ij dsoy ,dokj vioknLo:i ok.M ysdj fu;qfDr fd;k tk;sxkA nQknkj ds in ij lh/kh fu;qfDr ugha gksxh cfYd nQknkj ds in dks pkSfdnkj dks izksUufr nsdj gh Hkjk tk;sxkA x`g ¼vkj{kh½ foHkkx ds i=kad 1683@fnukad 19&11&94 }kjk fuxZr vkns'k bl gn rd la'kksf/kr le>k tk;sxkA ¼3½ ftyk Lrj ij xfBr p;u lfefr esa ftyk Lrjh; pkSfdnkj la?k ds v/;{k ;k lnL; lfpo lnL; ds :i esa jgsaxsA vuqjks/k gS fd jkT; ljdkj ds mi;qZDr fu.kZ;ksa dk n`<+rk ls vuqikyu fd;k tk;A fo'oklHkktu g0@& ¼enu izlkn JhokLro½ ljdkj ds mi lfpoA Kkikad la[;k&9@ys0&207&91 x`g0vk0 1267@fnukad 20 fnlEcj 1995 izfrfyfi & Jh jkevo/ks'k flag v/;{k fcgkj jkT; nQknkj pkSfdnkj 189 ,e0vkbZ0th0 guqeku uxj iVuk&20 dks lwpukFkZ ixzlkfjrA** is also wholly misplaced inasmuch as from reading of the aforesaid Government circular, it would be clear that the same relates to compassionate appointment in place of Chaukidar who had retired from service. Let it be noted that the job of Chaukidar earlier being not a Government job, the process of appointment by way of nomination by the person in service as Chaukidar was the prevalent practice and that is how, the State Government had clarified that after the retirement/leaving of the job by the Chaukidar, he could nominate not only the son but also maternal son. This Court fails to understand as to how the aforesaid circular dated 20.12.1995 issued after more than four and half years having no retrospective operation can also be made applicable for appointment of the petitioner on compassionate ground, where the death of the deceased 6 employee in service had taken place on 11.7.1991. More over, as noted above, the aforesaid circular dated 20th December, 1995 was issued only in respect of a retired Chaukidar but it is the case of the petitioner himself that his grand-father (Nana) was in service who died on 11.7.1991. Apart from this, this Court would also find that the wordings of the circular dated 20th December 1995, as noted above, did not even remotely refer to the scheme of compassionate appointment, much less, had amended or modified the Government circular dated 5.10.1991 containing the scheme of compassionate ground. Even as per rule of executive business, the Home Police Department had no power or jurisdiction to amend the provision of compassionate appointment which, as per Rule of Executive Business, could alone have been revised by the Personnel and Administrative Reforms Department with prior approval of Finance Department which had framed such policy by issuing the circular dated 5.10.1991. The reliance placed by the learned counsel for the petitioner on the judgment of Gangia Devi (supra) is also wholly misplaced. In the case of Gangia Devi (supra) the death of the deceased employee had taken place after 20.8.1995 and therefore, whatever was said by analyzing the circular of the Personnel Department dated 5.10.1991 7 and holding it to be not applicable in the case of Chaukidars on account of subsequent circular dated 20.12.1995 cannot be made applicable to the facts of the present case where the death of the deceased employee had taken place on 11.7.1991. That apart from reading of the judgment of Gangia Devi (supra) it would become clear that the attention of the learned Single Judge deciding the case was not drawn towards the scope and circular of the Home Police Department dated 20.12.1995. Such circular was in fact exclusively meant for appointment as a regular Chaukidar on account of a person who had retired while holding the post of Chaukidar on 1.1.1990 or thereafter. It was only a limited class of person for whom such circular was applicable but the Nana of the petitioner had not retired on 1.1.1990. In that view of the matter, it would be difficult for this Court to follow the ratio of the judgment of Gangia Devi (supra) which on the face of record seems to be per-incurium so far it relates to laying down the law in the matter of compassionate appointment. The second part of the submission as developed by the learned counsel for the petitioner that the petitioner in fact was an adopted son of the deceased employee runs contrary to his own case placed before the authorities while claiming his 8 appointment on the ground of his being Nati. More over such claim can also not be sustained inasmuch as the factum of adoption can only be unquestionably accepted only if there is registered document acknowledging adoption as is the mandate of law under Section 16 of the Hindu Adoption and Maintenance Act, 1956. In absence thereof, any person claiming right on the ground of being adopted son will have to prove this fact by moving civil court and obtaining a declaration in his favour of his being adopted son. Admittedly the petitioner had never staked such a claim of his being an adopted son of the deceased employee before the authority nor had produced any decree of the civil court nor had a registered document to show that he was adopted son of the deceased employee. In that view of the matter, this Court would also not find any merit in the second limb of submission of Mr. Kumar as with regard to considering the case of the petitioner on account of his being adopted son. That being so, there is no merit in this writ application and the same is accordingly dismissed. Patna High Court Dated the 1st April 2011 N.A.F.R.Rsh (Mihir Kumar Jha, J.)