IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2170 of 2007 1. JAYABUNA BEBE, wife of late Md. Sitabuddin Mian 2. Abdul Kudus, son of late Md. Shitabuddin Mian Both are resident of village Manopali, P.O. Sahajitpur, P.S. Baniapur, District Saran at Chapra … Petitioners Versus 1. THE UNION OF INDIA through the Secretary, Ministry of Defence, New Delhi, Pin 110 011 2. The under Secretary to the Government of India, Ministry of Home Affairs, New Delhi 3. The Director General, Mahanideshalaya, Assam Rifles, Shillong 4. The Commandant 1 Construction and Maint Company, Assam Rifles, P.O. Happy Valley, Shillong- 793 007 (Meghalaya), C/o 99A, P.O. Assam … Respondents ----------- 4. 5.4.2011 Heard counsel for the petitioners and the counsel for the respondents. The petitioners in this writ application seek a direction for appointment of petitioner no.2 on compassionate ground in Assam Rifles, by raising a plea as the husband of petitioner no.1 and the father of petitioner no.2, late Shitabuddin Mian, had died in harness on 21.7.2005 while working as a Rifle-man in Assam Rifles. Counsel for the petitioners would submit that petitioner no.2 had been fully eligible for being considered for appointment on compassionate ground in terms of the Government of India policy as adopted 2 by the Ministry of Defence and Assam Rifles, but then no decision was taken on the application filed by the petitioners seeking appointment of petitioner no.2 on compassionate ground. Counsel for the respondents representing the Ministry of Defence as also Assam Rifles has raised initially the issue of territorial jurisdiction. He submits that the father of the petitioner was working in Assam Rifles and his last place of posting was Shillong and therefore, the cause of action for such appointment on compassionate ground having arisen only at Shillong, this Court will lack territorial jurisdiction. There is hardly any merit in such preliminary objection, inasmuch as this aspect was gone into by the Division Bench of this Court in the case of Union of India & ors. vs. Sarojini Mishra, reported in 2002(1) PLJR 733, wherein it was held as follows: “5. Learned counsel for the Union of India, however, submitted that the writ application before this Court was not maintainable as no cause of action has arisen in the 3 State of Bihar. We are not convinced of the submission advanced on behalf of the Union of India. The family o9f the deceased employee was admittedly residing in the District of Buxar within the State of Bihar. The authorities made correspondences with the appellants at his village home situated in Bihar. In that view of the matter, in our view, part of the cause of action will be also treated to have arisen within the jurisdiction of this Court. This apart asking the family, which has lost its bread earner and is also suffering from economic hardship, to file writ application at the place where the defence personnel was employed, in our view, will not serve the cause of justice, on the other hand it will put the family members to further peril.” In the considered opinion of this Court the aforementioned ratio laid down by the Division Bench would also squarely cover the case of the petitioners, inasmuch as there are number of communications contained in Annexures 2 and 3, whereby and whereunder the authorities of Assam Rifles after death of the husband of the petitioner no.1 and the father of petitioner no.2 had intimated 4 not only about premature death of their bread earner but also had refused to appoint the petitioner on compassionate ground by taking a plea that the appointment in Assam Rifles could be made only from the inhabitants and the residents of the State of Assam. Since such communications were made at the permanent address of the petitioners in village Manopali in the district of Chapra (Saran) in this State, part of cause of action had definitely arisen in this State. The preliminary objection, therefore, is overruled. The plea taken by the respondents in their counter affidavit that the appointment of petitioner no.2 was not possible because in the service records of the deceased Md. Sitabuddin Mian there was no entry of the name of petitioner no.2 and that the name of the two sons declared by the deceased employee were different has to be again only noted for its being rejected. Admittedly the deceased employee had declared that he had two sons and the name of one of them was Md. Kudus. The name of petitioner no.2 in the writ application is 5 Abdul Kudus and therefore, it cannot be said that the name of the petitioner was not there in the service record. In any event for coming to this finding the authorities of Assam Rifles had to make an enquiry as to whether the deceased employee had a third son beyond two declared by him in his service records and whether Abdul Kudus and Md. Kudus were not the same person but different person. No such enquiry having been made, the respondent authorities of Assam Rifles cannot be allowed to reject the case of petitioner no.2 on their own assumptions. The last plea for denying compassionate appointment of petitioner no.2 with regard to lack of vacancy on the post of Rifle-man/ Washer-man is equally untenable either on fact or in law. Simply because the father of petitioner no.2 was working as a Rifle-man would not clothe the petitioner no.2 to become Rifle-man and in fact in the writ application the petitioner had made categorical prayer that petitioner no.2 may be appointed on any appropriate post as per his qualification. Additionally 6 the emphasis of the respondents that since the petitioners are by caste Washer-man and there was no vacancy on the post of Washer- man in the Assam Rifles, the appointment of petitioner no.2 cannot be made is again not acceptable to this Court. The petitioners’ caste have got no relevance for offering him a job on compassionate ground. It is not the case of the respondents that petitioner no.2 wanted a job of Washer-man. In that view of the matter, lack of vacancy on the post of Rifle-man or Washer-man at least cannot be a ground for denying compassionate appointment to petitioner no.2. In fact there is something more than what meets the eye if the contents of Annexure 3 are taken into consideration. Annexure 3 is a communication made by the Captain of Assam Rifles dated 12th August, 2005 in response to the application filed by petitioner no.1 seeking appointment of petitioner no.2 on compassionate ground in which the only plea for denying such appointment on compassionate ground was that in view of some directive received from the 7 Directorate General of Assam Rifles there was a ban on appointment of outsiders in Assam Rifles and therefore, the case of petitioner no.2 for appointment on compassionate ground could not be considered in Assam Rifles. Surprisingly this plea has been given up in the counter affidavit and at least that has not been made the bais for denial of compassionate appointment to petitioner no.2. The lack of vacancy in fact can never be a ground in the case of Indian Army, inasmuch as the Government policy adopted by the Indian Army itself provides for searching vacancies even in other departments. This aspect of the matter has been gone into at some length by the learned Single Judge of this Court in C.W.J.C. No. 6858/2002 (Rajesh Kumar Pandey vs. Union of India & ors.) in case of Assam Rifles itself wherein by an order dated 19.2.2004 it was held as follows: “ The petitioner, son of Havildar who died in harness while in the active service, applied for compassionate appointment. He was asked to appear before the Committee for his compassionate appointment and unfortunately 8 nothing has been done so, the petitioner has come to this Court. The respondents have filed their counter affidavit alongwith office Memorandum issued by the Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training), Government of India, New Delhi, alongwith a copy of the scheme for compassionate appointment. The object of the scheme is to grant appointment on compassionate grounds to a dependent family member of a Government servant dying in harness or who is retired on medical grounds, thereby leaving his family in penury and without any means of livelihood to relieve the family of the Government servant concerned from financial destitution and to help it got over the emergency. Undisputedly, the son is included in the definitions of dependent family member. Under the heading “Determination/ Availability of Vacancies” it is observed in Clause (e) that employment under the scheme is not confined to the ministry/ Department/ Office in which deceased/ medically retired Government servant had been working. Such an appointment can be given anywhere under the Government of India depending upon 9 availability of a suitable vacancy meant for the purpose of compassionate appointment. Clause (f) says that if sufficient vacancies are not available in any particular office to accommodate the persons in the waiting list for compassionate appointment. It is open to the administrative Ministry/ Department/ Office to take up the matter with other Ministries/ Departments/ Offices of the Government of India to provide at any early date appointment on compassionate grounds to those in the waiting list. Reading the clauses under the heading “Determination/ Availability of Vacancies” it would make it clear that the appointment can not be confined to the particular department only but such appointment have to be made in other departments also. The counter affidavit filed by the other side says that there did not have vacancies, therefore, compassionate appointment cannot be given to the petitioner. At the time of argument it was submitted that the policy as contained in Annexure 8 has been revised but nothing further has been placed on the record except a bald statement made at the bar. 10 In view of the said policy and the admitted facts, the respondents are obliged to make necessary search, find a suitable job/ vacancy for the petitioner and issue orders in his favour. Let the respondents pass final order in favour of the petitioner within three months from the date of receipt/ production of a copy of this order.” Counsel for the petitioners would explain that the matter relating to Rajesh Kumar Pandey had traveled upto the Apex Court and after the Apex Court had affirmed the aforesaid view of this Court the appointment letter of Rajesh Kumar Pandey was issued on 22nd June, 2006 by the competent authority Assam Rifles. It is thus clear that the case of the petitioner is squarely covered by the ratio laid down in the case of Rajesh Kumar Pandey (supra) and the respondents are duty bound to consider the case of the petitioner in the light of the policy as discussed in the case of Rajesh Kumar Pandey (supra) by making necessary search and a suitable job/ vacancy for petitioner no.2 and also issue an order in his favour. 11 As the petitioners have been all along vigilant and have been pressing the case for appointment of petitioner no.2 on compassionate ground and it is the respondents who have deprived a rightful consideration of the case of petitioner no.2, this Court while allowing this writ application would direct the respondents to pass a final order in favour of the petitioner within a period of three months from the date of receipt/ production of a copy of this order. With the aforementioned observation and direction, this application is allowed. (Mihir Kumar Jha,J.) Surendra/