IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.7112 of 2009 Vikas Kumar Jha Versus The State Of Bihar & Ors 2/ 02/08/2011 Heard learned counsel for the petitioner and the State. The father of the petitioner was deceased in harness on 15.8.1988. The petitioner’s mother gave an application for compassionate appointment on 3.6.1989 for her adopted son Shri Manoj Jha. It is submitted that while this application remained pending, on 25.5.1989 the original limitation of two years from the date of death for making of an application for compassionate appointment under the policy was extended to five years. Computed from the date of death, and within the period of five years, the mother of the petitioner again applied on 24.6.1993 to be considered herself. Subsequently, in 2001 she requested that the petitioner may be considered in her place. The petitioner then applied which was rejected on 29.6.2005. He raised objections to the rejection. On 2.5.2007 the office of the Director General of Police directed examination of his claims. On 19.4.2007 the Superintendent of Police opined that the case of the petitioner may be re-considered. The submission therefore is that the impugned order dated 7.12.2007 2 declining to consider his case on the ground that it had been rejected after consideration on 29.6.2005 and 5.10.2006 was not in consonance with the directions of the Superintendent of Police. There shall be a continuity in the claim for compassionate appointment from 3.6.1989 till 19.4.2007 when recommendation for considering the case of the petitioner has been made as the matter has been pursued throughout by one family member or the other and it is not a case where no claims for compassionate appointment whatsoever had been put forth for a long period of time. Learned counsel for the State from the counter affidavit submits that the application by Shree Manoj Jha was not considered in absence of necessary evidence with regard to the claimed adoption. The mother of the petitioner applied on 24.6.1993, it came to be rejected on 28.11.1996 as she did not possess the minimum educational qualification. Thereafter she made a request for the petitioner to be considered and in pursuance of which the petitioner gave a formal application on 30.10.2004. This was rejected on 29.6.2005. The impugned order therefore rightly records that there cannot be repeat applications to be considered for compassionate appointment. The petitioner has submitted his application nearly 16 years 3 after his father’s demise and therefore it is apparently time barred. Compassionate appointment has been considered as violative of Article-14 of the Constitution of India which contemplates that employment under the Government being a national wealth, all such appointments are required to be made strictly by open competitive merit selection. However, appointment on compassionate grounds has been countenanced to a limited extent considering the sudden death of the bread winner and the destituteness and penury that the family of the deceased may be visited with suddenly. Each such appointment on compassionate grounds also violates Article-16 of the Constitution of India when another is denied consideration only because he did not have the benefit of being a descendent of a deceased. It has now been held that while deciding destituteness and penury the status of the family otherwise with regard to sources of income from pensionary benefits, land, financial investments of the deceased etc. are all relevant considerations. It has therefore been held that any appointment on compassionate grounds has to be strictly in terms of the policy regulating the same. If the family of the deceased for whatever be the reason has survived long enough, as in the present case, it cannot 4 be said that it suffers from destituteness and penury where compassionate appointment was a compelling necessity. To consider a claim for appointment on compassionate grounds raised in accordance with law nearly 21 years later from the date of death is not possible for the Court to uphold. Any claim for compassionate appointment has to be strictly in terms of the policy regulating the same and it is not permissible for the Court to invoke sympathy or any other consideration. The relevant policy applicable has to be ascertained as existing on the date of the death. On the own showing of the petitioner, as on the date of death, the policy contemplated an application to be made within two years. That was in fact made. If it was not pursued properly the application lapsed after two years and the right to be considered stood extinguished. A subsequent modification of the policy on 25.5.1989, did not give a fresh lease of life to the family of the deceased to keep alive the claim beyond the period of initial two years. If that were not enough, the application submitted thereafter by the mother of the petitioner has also been rejected on 28.11.1996 as also of the petitioner on 29.6.2005. The Court is not concerned with what the D.G.P. or the S.P. may have done. The Court is 5 concerned with the sustainability of the claim in law. The question has been considered in 2007) 9 SCC 579 (State Bank of India v. Vikas Dubey) as follows:- : “3. The respondents are the heirs of an employee of the appellants who died on 9-8- 1996. Subsequent to the death of the employee, Respondent 1 made an application for the purpose of being appointed under the scheme as prevalent on the date of his father's death for an appointment. That was rejected on 9-1- 1998. 4. In the meanwhile, on 9-1-1997, a new scheme in compliance with the IBA's instructions was published by the appellants. Therefore, after the rejection of his case, Respondent 1 filed another representation before the appellants on 27- 1-1998 asking for reconsideration of his case in view of the revised policy. The appellants also rejected this representation after considering Respondent 1's eligibility under the revised policy of 1997. The rejection which was made on 29-1-1999 was challenged by Respondent 1 by way of a writ application in 2001 before the Madhya Pradesh High Court….” 7. As far as the appellants' contention is concerned, we are of the view that, having regard to the facts of the case, the Division Bench erred in directing reconsideration of the matter under the old scheme. The appellants are correct in their submission that the issue could not be reopened since the earlier order of rejection of the application which had been considered under the earlier scheme had not been challenged by Respondent 1……..” The right to apply for compassionate appointment therefore stood extinguished after expiry of two years 6 from the date of death 15.8.1988. The deficiency in the original application could have been rectified during that period or reasonably thereafter. The application of the mother for consideration of her own case also attained finality by rejection on 28.11.1996. The petitioner’s request also attained finality by rejection on 29.6.2005. These could not be resurrected to life by consideration of any representation contrary to the policy for compassionate appointment. Considering a claim for compassionate appointment after 12 years it has been held in (2009) 13 SCC 112 (Eastern Coalfields Limited v. Anil Badyakar) as follows:- “21. In the instant case the employee died in harness in the year 1981 and after a long squabble by the dependants of the deceased, they arrived at a settlement that the son-in-law of the second daughter who is unemployed may request for appointment on compassionate grounds. The request so made was accepted by the Personnel Manager of the Company subject to the approval of the Director of the Company. The Director (P), who is the competent authority for post facto approval, keeping in view the object and purpose of providing compassionate appointment has cancelled the provisional appointment on the ground that nearly after 12 years from the date of death of the employee such an appointment could not have been offered to the so-called dependant of the deceased employee.” 7 Any application for compassionate appointment or any orders or consideration made by the authorities after expiry of two years from the date of death was therefore a nullity in law under the policy itself. The writ application is dismissed. KC ( Navin Sinha, J.)