IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12110 of 2010 ====================================================== 1. Santosh Kumar Jha S/O Late Vishwanth Jha R/O Vill Ram Das Majhauli, P.O.& P.S.Bochahan, Distt-Muzaffarpur .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Director General Of Police Bihar, Patna 3. The Commandant, Bihar Home Guard Police Force Bihar, Patna 4. The Divisional Commandant , Bihar Home Guard Police Force Muzaffarpur 5. The District Commandant , Bihar Home Guard Police Force Muzaffarpur 6. The District Commandant , Bihar Home Guard Police Force Aurangabad .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. V.K.Singh For the Respondent/s : Mr. (Aag4) ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 2 25-11-2011 Heard learned counsel for the petitioner and the State. The father of the petitioner was a Home Guard volunteer. He was deputed on duty in the 2004 General Parliamentary Election at Aurangabad. While in course of duty at the police line he was killed in a firing by another Constable. The petitioner applied for appointment on compassionate grounds in 2004 itself and which is still pending consideration before the respondents as evident from a recent communication dated 6.4.2010, number- 958 forwarded to the mother of the petitioner with Patna High Court CWJC No.12110 of 2010 (2) dt.25-11-2011 2 directions to the District Commandant to take appropriate action. The letter is not part of the record, but has been produced individually at the time of submissions and the respondents have had no occasion to deal with the same. Nonetheless, the Court shall deal with it also in the present case in fairness to the petitioner. Further reliance has been placed on a Circular dated 27.1.2006 containing instructions for the manner in which claims for compassionate appointment of Homeguards has to be considered. The respondents in their counter affidavit assert that the deceased was not a government servant, but a Home Guard volunteer. He was killed at the police line in a firing by another constable and was not on duty in terms as contemplated by the government instruction dated 5.1.1991. A similar claim has been rejected by this Court in C.W.J.C. No.1009/06. Employment in government service has been described as a national wealth. Equal opportunity has to be provided to all citizens to participate in the selection process subject to fulfillment of eligibility conditions. This necessarily mandates an open advertisement and competitive merit selection. Any appointment made on a government post without open advertisement and Patna High Court CWJC No.12110 of 2010 (2) dt.25-11-2011 3 selection violates Article-14 of the Constitution when others equally eligible are discriminated and denied the right to be considered even. Article-16(2) of the Constitution again provides that no citizen can be declared ineligible or discriminated in any employment or office under the State inter alia on the ground of descent. Each time a compassionate appointment is made without open advertisement and competitive merit selection, it violates Article-14 of the Constitution of India. Denial of consideration to others because they were not the descendents of a deceased violates Article-16 of the Constitution of India. However, appointment on compassionate grounds has been countenanced by the Courts on extremely limited grounds and circumstances to be considered strictly in accordance with the Circulars regulating the same. Because the appointment is basically contrary to the Constitution the interpretation has to be strict and the stipulations as existing on the date of death have to be applied only. The father of the petitioner died in 2004. Compassionate appointment was required to prevent the family from becoming destitute and going into penury. It is not a alternative mode of recruitment. The writ petition has been filed on 27.7.2010 more than six years after the death on 24.4.2004. That the matter may have been Patna High Court CWJC No.12110 of 2010 (2) dt.25-11-2011 4 unduly pending before the respondents can hardly be an explanation on behalf of the petitioner for the conclusion of the Court that the very fact that he survived for over six and a half years and has the capacity to pursue the litigation is by itself more than the sufficient evidence that he was not a destitute with a compulsive need for compassionate appointment. As on the date of death the Circular dated 5.1.1991 was in vogue. It provides for compassionate appointment to the heirs of Homeguards on duty with the police who died in an encounter. The prerequisite therefore is a death on active duty. An active duty cannot be stretched to the extent to hold that if the deceased had returned to the police line from active duty from the elections he continued to remain on active duty. He was on duty, but not on active duty. Duty does not suffice to create the claim for compassionate appointment. If the deceased was traveling for active duty or returning from active duty co-related to the aspect of encounter and death took place for any reason the circumstances for consideration may have been entirely different. In any event, deployment on election duty does not fulfill the requirement of condition for duty precarious of a nature assisting the police resulting in an encounter. The reliance on the subsequent Circular dated Patna High Court CWJC No.12110 of 2010 (2) dt.25-11-2011 5 27.1.2006 entitling consideration for compassionate appointment for death on duty is of no avail to the petitioner as the claim for compassionate appointment has to be considered on basis of Circulars that may have existed on the date of death and not any subsequent instructions issued thereafter. The Circular dated 27.1.2006 does not and cannot provide for retrospectively. It is prospective in nature. In (2007) 9 SCC 579 State Bank of India v. Vikas Dubey ) it has been held that the claim for compassionate appointment has to be considered as existing on the date of death and not under any subsequent scheme holding as follows:-: “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. ………….” It cannot be lost sight of that a person seeking compassionate appointment avoids the rigours of competitive selection. He may be equally eligible as another, yet he can lose out in the selection process by competition. A preferential claim for compassionate appointment ensures he faces no competition. In a shrinking job market where government employment is still largely considered by a section of the society as the preferable employment, equal opportunity must be Patna High Court CWJC No.12110 of 2010 (2) dt.25-11-2011 6 provided to all. The reliance on the recent communication dated 6.4.2010, to the mind of the Court, does not condone the lapse of the petitioner in not having pursued matters for nearly six and a half years. In any event, the Court is satisfied that the instructions are not only contrary to government circulars, but also well settled law with regard to compassionate appointment. Compensation in accordance with law for the death of the deceased is acknowledged to have already been paid. The application is dismissed. Krishna Chandra Jha/- (Navin Sinha, J)