IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11956 of 2006 SADAY KUMAR CHAKHAIYAR s/o Shri Hriday Kishore Chakhaiyar, resident of village- Jay Prakash Nagar, behind Electric Colony Karma Road, P.S. and District- Aurangabad. Versus 1. THE STATE OF BIHAR 2. The District Magistrate-cum- Chairman, District- Compassionate Committee, Aurangabad. 3. The District Superintendent of Education, Aurangabad. ----------- For the Petitioner: Mr. Rajeev Kumar Singh, Advocate For the State: Mr. N.K. Sinha, A.A.G.10 Mr. Sanjay Kumar, A.C. to A.A.G.10. ---- 2. 19.4.2010 Heard learned counsel for the petitioner and learned A.A.G.10 for the State. The petitioner seeks quashing of memo No.30 dated 17.1.2004 issued by the District Magistrate, Aurangabad, by which the application of the petitioner for appointment on compassionate ground has been rejected and for a direction upon the respondents to re-consider his case for appointment on compassionate ground and to appoint him. The father and mother of the petitioner were both in Government service and on 23.10.2001 while still in service, the mother of the petitioner died and the father of the petitioner subsequently retired from service on 31.12.2002. Upon the death of his mother, the petitioner earlier applied for appointment on compassionate - 2 - ground and the same was forwarded on 8.11.2003 by the District Superintendent of Education, Aurangabad to the District Magistrate, Aurangabad for consideration. The case of the petitioner is that a dispute arose between the parents of the petitioner in the year 1995 on account of which they have been living separately and on 17.2.1999 the father of the petitioner swore an affidavit ( Annexure-3 ) that he has no concern with his wife and children since 1995, and he is living separately. It is also claimed that the mother of the petitioner also swore an affidavit on 29.6.1999 ( Annexure-4 ) that she had no concern with her husband and also nominated the petitioner to receive the entire service benefit as well as to look after his brother and sister. Subsequently, an application was made on 5.9.1999 (Annexure-5) before the District Superintendent of Education, Aurangabad nominating the petitioner and other children as her nominee, which was duly forwarded by the Headmaster of the school, where she was an assistant teacher, on 6.9.1999. In the aforesaid situation, learned counsel for the petitioner submits that the - 3 - authorities ought to have considered the case of the petitioner for compassionate appointment. Learned counsel for the petitioner firstly submits that since the parents of the petitioner had separated much before the death of the mother, i.e., more than six years prior to the event, and an affidavit to that effect had also been sworn by them much prior to her death in which the father had disowned the mother of the petitioner along with children including the petitioner, then on the death of the mother the petitioner ought to have been considered for appointment on compassionate ground. The second ground urged by learned counsel is that the application of the petitioner having been forwarded on 8.11.2003 after the father had retired, hence, the case of the petitioner was not hit by clause 1 (Anga) of Circular No.13293 dated 5.10.1991 of the Government. Lastly, it is contended that the petitioner’s mother died on 23.10.2001 and under the Circular dated 27.4.1995, the petitioner could have applied for appointment on compassionate ground within five years of the death of the mother and much before expiry of the five years - 4 - period the father had already retired and for the said reason also clause 1 (Anga) of the said Circular should not have been applied to the case of the petitioner. In support of the aforesaid stand, learned counsel for the petitioner relies upon the decision of a learned single judge of this Court in the case of Dilip Kumar Das vs.The State of Bihar & Ors. : 2000 (2) PLJR 203, in paragraph Nos. 6 and 7 of which it has been held as follows: “6.In my view, this argument is not sustainable, as the learned counsel for the State has not been able to appreciate the very letter of the Government, which, inter alia says: 1(Anga)” YADI PATI-PATNI DONO SARKARI SEVAWON MAIN HO AUR KISI EK KE MIRTU HO JAE TO WIASI ISTHITI MAI ANUKAMPA KE ADHAR PAR NIYUKTI KA LABH UNKE PARIWAR KE KISI ASHRIT KO NAHI MILEGA.” 7. From a bare perusal of this resolution it is clear that if both - 5 - husband and wife are in Government service and if one of them dies in harness, no appointment can be made to any of his dependents on compassionate ground. It means that when out of the husband and wife, if one dies but the other remains in service then in such circumstances only, the dependent cannot get any appointment on compassionate ground. On the other hand, in the case in hand, though both father and mother of the petitioner were in service but admittedly the petitioner’s father retired from service in 1995. Petitioner’s mother, Lalita Devi, was in service when her husband retired but died in harness on 21.10.1996. Therefore, when the petitioner applied for his appointment on compassionate ground, admittedly, none of his parents was in service. Under these circumstances, in my view, the - 6 - services of the petitioner could not have been terminated by the concerned authority by wrong interpretation of the said Government resolution/letter. Moreover, it is apparent that before the petitioner was appointed, not only police verification but his entire family background was scrutinized by the concerned authority and on the basis of that report the Committee for compassionate appointment approve the appointment of the petitioner and the petitioner joined his post.” He further relies upon the decision of a Division Bench of this Court in the case of Jyoti Kumari vs. State of Bihar and others: 2005 (4) PLJR 507, in paragraph Nos. 6 to 8 of which it has been laid down as follows:- “6. According to the said provision, when both husband and wife are in - 7 - Government employment and one dies while other remains in employment, then no benefit of compassionate appointment can be given to any of the dependents of the deceased employee. Thus, the condition precedent for non- applicability of the aforesaid provision is that at the time of death of one spouse, the other spouse is in employment. If the other spouse has already retired then the said clause, on the face of it, appears to be non- applicable. 7. The view taken by the learned single Judge in the case of Dilip Kuamr Das vs. State of Bihar, reported in 2000(2) P.L.J.R.203 is a correct law. 8. Accordingly, the impugned order, as contained in Annexure 7 at item no.28 is quashed and the matter is remitted to the authorities concerned to consider the question of compassionate appointment of the petitioner afresh taking into consideration the settled law, namely, - 8 - whether the family of the deceased family is in need of compassionate appointment or not; or it has means to survive.” Learned A.A.G.10 for the State, on the other hand, submits that the case of the petitioner clearly falls within the said clause 1 (Anga) of the Government Circular dated 5.10.1991 and on the day when the mother died both the parents being in Government service, the petitioner was not entitled to any appointment on compassionate ground and his case has rightly been rejected by the authorities. Learned counsel further submits that the question of mother and father of the petitioner having been separated and the other consequential matters are not such which can be taken into account by the parties, as no such provision for relaxation in such circumstances is contained in the said clause 1 (Anga) of the Circular dated 5.10.1991. In support of his stand, learned A.A.G. 10 relies upon a decision of a learned single Judge of this Court in the case of Ravi Bhushan Verma vs. The State of Bihar & Ors. : 2007 (3) PLJR 727, - 9 - in paragraph Nos. 7 to 9 of which it has been held as follows: “7.In the case of Ashok Chaudhary (supra) it was held that an appointment on compassionate ground was an antithesis to appointment by open competition of merit guaranteed under Articles 14 & 16 of the Constitution. It is settled law that every appointment on compassionate ground is made by shutting the door on the face of another eligible candidate from consideration altogether, who may have his own urgency for appointment in contradistinction to a claim for compassionate appointment which may nenetheless be not less urgent. The Division Bench held as follows:- 13. According to the aforesaid provision, if both the husband and wife are in Government Service and one of them dies, in that situation the benefit of appointment on - 10 - compassionate ground will not be available, to the dependent of the family. If the aforesaid sub-clause 1 (Anga) is read in isolation without considering the other provision of the circular/instructions including the application form as contained in Annexure 1 and the object of appointment on compassionate ground, then the submission advanced on behalf of the counsel for the petitioner has some force, but after taking into consideration other provisions of the circular/instructions and the object of compassionate appointment, I am not inclined to accept the submission advanced on behalf of the petitioner. If any statutory provision which is subject matter of consideration is clear and unambiguous, then the plain meaning has to be given, unless said meaning defeats the object of the provision or leads to anomaly, absurdity and inconsistency. If the - 11 - provision is capable of more than one meaning the principle of purposive construction should be applied, so that the purpose and object for which the provision has been made are given effect to. The sole purpose of appointment on compassionate ground is to tide over the financial crisis in case of emergency. If at the relevant time the family has financial resources to meet the hardship, then no dependent can be appointed on compassionate ground. If the provision as contained in clause 1 (Anga) is interpreted in the manner as suggested by the petitioner, then that would frustrate the very object of appointment on compassionate ground. If one of the spouses dies and the other spouse retires, then the dependent is to be appointed on compassionate ground even though the source of livelihood is available to the family in the shape of pension and other retiral benefits. If - 12 - appointment on compassionate ground is made in such a situation, then it would be an appointment on the ground of descent and not to meet the sudden hardship caused to the untimely death of an employee. In a case where only one spouse is employed and he dies and the dependent claims for appointment on compassionate ground, in that case also the crucial test is to see as to whether the family had financial resources or not to meet the emergent situation, and if it is found that the family has other sources to maintain itself, then the appointment on compassionate ground will be denied. Thus, in my view the said clause cannot be interpreted to mean that if one of the spouses has retired at the time of death of the other spouse, the dependent will be appointed on compassionate ground. Even if the other spouse has retired at the time of death of the deceased employee but is recipient of the - 13 - retiral benefits and the pension, even in that case no appointment could be given to the dependent on compassionate ground for the simple reason that the family is not in financial crisis for which appointment is to be made. Thus, the crucial test to decide as to whether a person is to be appointed on compassionate ground or not is to be find out whether the family has other sources of livelihood or not at the relevant time to meet the hardship and once it is found that the financial condition is sufficient to tide over the crisis, then no appointment can be made on compassionate ground and the question whether the other spouse is continuing in service or has retired is wholly immaterial. 8. It is not in dispute in the present case that the father of the petitioner was alive when mother of the petitioner was deceased and was - 14 - receiving retiral benefits. The father has been deceased in the year 2004 after the death of the mother of the petitioner in service. The family is also entitled to death-cum- retiral benefits with regard to mother of the petitioner. There is no material in the writ application to arrive at any prima facie conclusion of destitution or penury on the part of the petitioner. 9. This Court on consideration of entire matter is satisfied that no case has been made out by the petitioner for any direction for consideration of his case for compassionate appointment.” I have considered the submissions of learned counsels for the parties. From a perusal of the various decisions of the Apex Court as also the aforesaid decisions relied upon by the parties, it is evident that compassionate appointment is not a benefit granted as a matter of succession from parents to children, rather the - 15 - only purpose is to relieve the hardship that may be caused to the family of the deceased Government employee. It is settled proposition that no direction for making appointment on compassionate ground can be issued by the Court against the relevant Circulars or Rules providing for such compassionate appointment, as essentially the appointment on compassionate ground would be hit by the Constitutional bar provided under Article 16 of the Constitution not to grant any public employment on the ground of descent. However, the sole reason for permitting appointment on compassionate ground is to meet the immediate financial crunch caused on account of the death of the sole bread-earner. The decisions of the Courts are very clear on this point that such an appointment can only be granted in terms of the Government policy as laid down either in the Circular or statutory Rules and no claim for appointment on compassionate ground exists apart from the said Circular or Rules. In the present matter, I find that clause 1 (Anga) of the Circular dated 5.10.1991 issued by the Personnel and Administrative Reforms Department clearly provides that where both - 16 - husband and wife are in service and one of them dies, then in such circumstances, the benefit of appointment on compassionate ground cannot be given to any dependents of their family. No exception has been made under the said Rules for there being differences or disputes between the parents or they having started living separately on their own. In the said circumstances, the benefit of compassionate appointment cannot be given to the dependents, if the said factual situation is made out. It is evident from a consideration of the said provision that the relevant point for the application of the said clause is the date of death and if it is found that on the date of death both the spouses were in Government service, then their dependents cannot be given the benefit of compassionate appointment. The said condition is squarely covered in the present case where on 23.10.2001 when the mother died while in service as Assistant teacher, the father was still in Government employment. Hence, it is evident that the benefit of compassionate appointment was not available to the petitioner on the said date and there is nothing in the Circular which supports - 17 - the case of the petitioner that the benefit of compassionate appointment can be granted to him, even if the other parent is in Government employment. Such is also enunciation of law in paragraph No.6 of the Jyoti Kumari case (supra) as laid down by a Division Bench of this Court wherein it has been emphasized that the condition precedent for non- applicability of the said provision is that at the time of death of one spouse, the other spouse is in employment. The said condition is fulfilled in the present case also. Moreover, the decision of this Court in the case of Ravi Bhushan Verma (supra) in which the facts were practically on the same footing also goes against the petitioner. Thus, I find no illegality in the impugned order dated 17.1.2004 of the District Magistrate, Aurangabad and no ground for interference with the same is made out by the petitioner. The writ application is, accordingly, dismissed. VPS ( Ramesh Kumar Datta, J. )