IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4334 of 2010 CHANDRA KISHORE TIWARI S/O LATE SURENDRA TIWARI R/O VILL.- MAHAMADA P.O.- BARKA BALUA, P.S.- PATAHI, DISTT.- EAST CHAMPARAN, MOTIHARI Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY GOVT. OF BIHAR, PATNA 2. THE D.G. CUM I.G. OF POLICE BIHAR, PATNA 3. THE D.I.G. OF POLICE DARBHANGA RANGE DARBHANGA 4. THE S.P. SAMASTIPUR 5. THE D.M. SAMASTIPUR, CUM CHAIRMAN COMPASSIONATE APPOINTMENT COMMITTEE, SAMASTIPUR For the Petitioner:- Mr. Ram Hriday & Mrs. Nirmala Kumari, Advocates For the State:- Mr. Ranjan Kumar, A.C. to A.A.G.-9 ----------- 02. 05.10.2010 Heard learned counsel for the petitioner and for the State. The father of the petitioner a Hawaldar in the Police was deceased in harness on 19.8.1998. The petitioner was a minor at that point of time. The claim for compassionate appointment has been rejected on 22.12.2009 on the ground that his application after 10 years of death was much beyond the required stipulated period of 5 years from the date of death. Learned counsel for the petitioner submitted that since at the time of death, the petitioner was a minor, he was appointed as a child Constable under Police order no. 209 of 1988. Under Clause 7 of the order, the petitioner had the option upon attaining the age of 18 years to decide if he 2 wanted to continue in Police service or not. If he so opted, Clause-8 of the order came into operation and he was entitled to appointment subject only to the condition of fulfillment of the physical and educational requirements for appointment. If the claim of the petitioner for such appointment has been rejected on 3.3.2008 for failure to meet the height stipulation for appointment as a Constable, he can well be considered for appointment on a Class-IV Post as was done in similar circumstances with regard to another child Constable Sanjeev Kumar after attaining age of 19 years by order dated 24.1.2003. Learned counsel for the State submitted that if the application was time barred under the policy, the petitioner could not be considered for compassionate appointment on any post. Employment under the Government has been considered a national wealth. Every citizen has a right to apply and to be considered in accordance with law. That is the mandate of Article 14 of the Constitution of India. However, the Courts have permitted a limited inroad or exception by permitting compassionate appointment. But such appointment has to be strictly in accordance with the policy regulating the same. It must be kept in mind that 3 every appointment on compassionate ground violates Article 14 of the Constitution, when it shuts out another applicant from even being considered only because he did not have the necessary descent. Death cannot be a bonanza for the heirs. The primary purpose of a compassionate appointment is to provide immediate relief to the family of the bread winner due to the untimely death to save them from penury or becoming destitute. It is open for the employer to devise different methods to provide the relief where compassionate appointment cannot be granted. The Police order no. 209 of 1988 is only such manifestation. A person below 18 years of age is not eligible for appointment under the Government. An appointment under the government originates in a contract, but transforms into one of status. If the petitioner was under 18 yeas on the date of death he was clearly ineligible to enter into a contract under Section 11 of the Indian Contract Act. In 2005 (2) P.L.J.R. 427 (Rajendra Prasad Versus State of Bihar) it has been held at paragraph- 10 as follows:- “10. This Court would hold that the appointment in government service or a job in government service would undoubtedly be a contract. Once the employee enters into a contract with 4 the employer the employee would then be governed by the Service Rules. Thus the stage of entering into a contract would be prior in point of time. Only if there be a proper contract in law the question of applicability of service rules arise. This Court would therefore refer to Section 11 of the Contract Act which is quoted below for ready reference.” The Police order no. 209 of 1988 therefore seeks to provide relief to the minor child of the deceased by payment of minimum pay without increments. The Superintendent of Police is required to ensure that the child gets admission in a good school and shall review his progress. His books etc. shall be purchased from the minimum of the salary so paid. If the child fails to pass the annual examination he can be deprived of the benefit. In the morning they are required to go to school and in the evening from 5:00 P.M. to 5:30 P.M. they may be utilized for minor purposes of carrying files. Such benefits shall seize on the child attaining the age of 18 years. The purpose and policy is salutary. In absence of compassionate appointment it aims at providing infrastructure support to enable the heir of the deceased to stand up on his own feet and not be a loser only because he did not have the paternal protective umbrella due to the death of his father. The word “appointment of the child Constable” used 5 in the Police order is a misnomer. No appointment could have been granted to the child. Therefore indirect benefits were granted to him which were seize to upon attaining majority, as by that time he was made well equipped by education. The emphasis on Clause-8 of the order that the petitioner could have opted for Police service on attaining majority, and even if he did not fulfill the height requirement, he could be considered for a Class-IV post does not appeal to the Court. An appointment on compassionate ground could not be claimed simply on descent as a family heritage. Any such appointment has to be strictly in accordance with the policy regulating the same. If the time period to apply for compassionate appointment expired during the minority of the petitioner, he could not be considered for compassionate appointment. In any event of the matter, he has had another indirect benefit. He could not seek a double bonanza of having received financial aid sufficient to enable him to stand on his own feet and further claim compassionate appointment. The justification for compassionate appointment no more survived. The claim of the petitioner to continue to right to retain the right of a crutch is not sustainable in the law. 6 In A.I.R. 1997 (SC) 3887 (Haryana State Electricity Board Versus Hakim Singh) the heir of the deceased was a minor at the time of death. His mother made an application after he attained majority. Rejecting the argument that the period of three years to apply for compassionate appointment was to be computed from the date of attaining majority the Court held at paragraph-12 as follows;- “12. We are of the view that the High Court has erred in over stretching the scope of the compassionate relief provided by the Board in the circulars as above. It appears that High Court would have treated the provision as a lien created by the Board for a dependent of the deceased employee. If the family members of the deceased employee can manage for fourteen years after his death one of his legal heirs cannot put forward a claim as though it is a line of succession by virtue of a right of inheritance. The object of the provisions should not be forgotten that it is to give succour to the family to tide over the sudden financial crisis befallen the dependents on account of the untimely demise of its sole earning member.” The Father of the petitioner died in 1998. The petitioner attained the age of 18 years on 7.11.2006. He was obviously not in penury or a destitute due to the death of his father for reason of the benefit already granted to him by the department. The assistance provided enabled him to acquire qualification of Matriculation also. The claim 7 for compassionate appointment was made 10 years after the death of his father. In (2006)5 SCC 766 (State of J.&.K. Versus Sajad Ahmed Mir) it has been held at paragraph-11 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 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 except where compelling circumstances demand, such as, death of sole bread earner and likelihood of the family suffering because of the setback. Once it is proved that in spite of death of bread earner, the family survived and substantial period is over, there is no necessity to say 'goodbye' to normal rule of appointment and to show favour to one at the cost of interests of several others ignoring the mandate of Article 14 of the Constitution.” Insofar as the reliance on the order for appointment dated 24.1.2003 of another child Constable on a Class-IV post is concerned, it is not clear if he came to be considered within five years of the date of death of his father. That may 8 substantially alter issues. In any event of the matter, a wrong benefit granted could not be a foundation to claim perpetuation of the illegality. This Court finds no infirmity in the order dated 22.12.2009. The application is dismissed. P.K. (Navin Sinha, J.)