IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9291 of 2008 Ashok Kumar, son of late Brijnandan Prasad, resident of Mohalla Janakpur, P.O. Buniyadganj, P.S. Gaya Muffasil, District Gaya. --------- Petitioner Versus 1. The State of Bihar through the Secretary, Human Resources Development Department, Government of Bihar, Patna. 2. The Commissioner, Magadh Division, Gaya. 3. The District Magistrate cum Chairman, District Compassionate Selection Committee, Gaya. 4. The Secretary, District Compassionate Selection Committee, Gaya. 5. The Additional Collector, Gaya. 6. The Deputy Collector (Establishment), Gaya. 7. The District Education Officer, Gaya. 8. The District Superintendent of Education, Gaya. ---------- Respondents ----------- 4 2.5.2011 Heard Mr. Chitranjan Sinha, learned senior counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application is to quash an order dated 11.4.2008, whereby and whereunder, his earlier appointment on compassionate ground has been cancelled by holding that the petitioner was not eligible for being appointed on compassionate ground. Mr. Sinha, learned senior counsel for the petitioner, while assailing the impugned order, would submit that the father of the petitioner had died on 28.1.1999, while he was in active service and the mother of the petitioner was 2 who also a Government employee, a Teacher, had retired from service on 28.2.2002 and after the retirement of the mother of the petitioner, he had filed an application for appointment on compassionate ground on 22.3.2002, which was considered by the District Compassionate Appointment Committee and led to recommendation dated 19.6.2004 for his appointment on compassionate ground, whereafter, the consequential appointment letter dated 28.7.2004 was issued appointing the petitioner on the post of Clerk in Government High School. Mr. Sinha, therefore, would proceed that once the respondents had appointed the petitioner with open eyes who had not suppressed any fact with regard to either the earlier death of his father and later on retirement of his mother, his cancellation of appointment by the impugned order and that too only by giving mere show- cause notice, is unsustainable in law both on account of its being violative of the Government policy as also in teeth of the safeguard under proviso to Article 311 of the Constitution of India. In this context, he 3 has placed reliance on a judgment of this Court in the case of Dilip Kumar Das Vs. The State of Bihar & Ors. reported in 2000(2)PLJR 203 and in the case of Jyoti Kumari Vs. The State of Bihar & Ors. reported in 2005(4)PLJR 507. Learned counsel for the State, on the other hand, would submit that the case of the petitioner is squarely covered by the prohibition given in the policy of compassionate appointment and to that extent, he has gone to explain that the ratio laid down by this Court in the case of Dilip Kumar Das (supra) and Jyoti Kumari (supra) will not be applicable, inasmuch as, in both the cases, the factual scenario is otherwise. Having given anxious consideration to the aforementioned submissions as also the materials on record, this Court will have no hesitation in coming to a conclusion that the appointment of the petitioner on compassionate ground was wholly impermissible in view of the specific provision made in the policy of the compassionate appointment as contained in circular dated 5.10.1991, 4 relevant portion whereof is extracted hereinbelow:- ¼1½ fdudk p;u gks ldrk gS & ¼d½ vuqdEik ds vk/kkj ij fu;qfDr dk ykHk oSls e`r ljdkjh lsod ds ,d gh vkfJr dks vuqekU; gksxk ftudh e`R;q lsokdky esa gqbZ gSA ¼[k½ bl gsrq ljdkjh lsod mls gh ekuk tk;sxk ftldh fu;qfDr] Lohd`r in ds fo:) fof/kor dh xbZ gksA ¼x½ lsokdky esa e`r ljdkjh lsodksa ds vkfJrksa dks gh vuqdEik ds vk/kkj ij fu;qfDr dh tk ldrh gSA vkfJr ds vurxZr dsoy iq=] vfookfgr iq=h rFkk iq= dh fo/kok iRuh lfEefyr jgsxhA nÙkd iq=] nkekn] Hkrhtk vkfn dks vkfJr ugha ekuk tk;sxkA ¼?k½ vuqdEik ds vk/kkj ij fuEufyf[kr izkFkfedrkvksa ds vuqlkj muds vkfJr dh fu;qfDr dh tk;sxhA ¼i½ e`r lsod dh iRuh ¼ii½ iq= ¼iii½ vfookfgr iq=h ¼iv½ iq= dh fo/kok iRuh ¼M-½ ;fn ifr iRuh nksuks ljdkjh lsok esa gks vkSj fdlh ,d dh e`R;q gks tk;s rks oSlh fLFkfr esa vuqdEik ds vk/kkj ij fu;qfDr dk ykHk muds ifjokj ds fdlh vkfJr dks ugha feysxkA ¼p½ ;fn dksbZ efgyk ljdkjh lsok esa gks vkSj muds ifr fdlh ljdkjh lsok esa dk;Zjr ugha gksa] rks efgyk ljdkjh lsod dh e`R;q mijkUr muds ifr dks vuqdEik ds vk/kkj ij fu;qfDr dk ykHk izkIr gks ldsxkA ¼2½ fdudk p;u ugha gks ldrk gS%& fuEukafdr dksfV;ksa esa ls fdlh Hkh dksfV es vkus okys O;fDr dk vkosnu izkjafHkd rkSj ij gh vLohd`r dj fn;k tk;sxk] ;fn [k.M ^[k* vkSj ^x* ds lEcU/k esa dksbZ izfrdwy 'kiFk&i= ugha fn;k x;k gksA ¼d½ ;fn vkosnd ds izLrkfor in gsrq ljdkj }kjk fu/kkZfjr vgZrk izkIr ugha gksA ijUrq efgyk ds ekeys esa lkbZfdy pykus dh vgZrk dks {kakr le>k tk;sxkA ¼[k½ ;fn vkosnd dks fdlh laKs; vijk/k ds vijk/kh ds :i esa U;wure 6 ekg ds dkjkokl dk n.M gqvk gSA ¼x½ ;fn vkosnd ij ,slk eqdnek U;k;ky; ds fopkjk/khu gks ftlesa mUgsa e`R;w n.M vFkok lkr o"kZ ls vf/kd ds dkjkokl dh ltk fn;s tkus dh lEHkkouk gks] vFkok mDr okn ds fuLrkj gksus ij ;fn vkosnd dks 6 ekg vFkok mlls vf/kd dk n.M fn;k tk;A** (underlining for emphasis) From reading of underlined Clause-1(M-) of the government policy it would be clear that one of the eligibility conditions for appointment on compassionate ground is that the dependant on the date of death of the 5 deceased employee must not have either of his parent in service. The aforesaid clause has to be applied on the date of death of one of the spouse whose premature demise and dying in harness has created a situation for appointment on compassionate ground. This clause, therefore, cannot be given an extended meaning to include a situation that though on the date of death of either of the spouse in Government service, even when the other spouse continues to be in Government service, the dependant shall still be entitled for being appointed on compassionate ground because he would not file the application immediately after the death of his father or mother dying in harness and then wait for a period of five years, the period of limitation by which time the other living spouse may also not remain in Government service. Let it be kept in mind that the whole approach of compassionate appointment is to provide immediate relief to the dependant of the deceased family member and if, therefore, there was already an assured source of income to the family by way 6 of salary and emoluments of the other living spouse continuing in service on the date of death of other spouse there would be no question of the dependant of such Government servant dying in harness to become eligible for appointment on compassionate ground. In the present case, when the father of the petitioner had died on 28.1.1999 while holding the post of Teacher in Primary School, Nawada, his mother Urmila Devi was still in service being a Teacher in the same Primary School, Nawada and she had continued to remain in service for more than three years before her superannuation on 28.2.2002. In that view of the matter, merely because the petitioner had filed his application after the retirement of his mother seeking compassionate appointment on 22.3.2002, it cannot be said that he will not be covered by the prohibition made in the Government policy dated 5.10.1991, which as noted above, is very clear contemplating the date of death of the spouse and the position of the other spouse existing on that date to be the deciding factor for appointment on 7 compassionate ground. It is in this light that this Court will have to also take into account the ratio of the judgment in the case of Dilip Kumar Das (supra) wherein the learned single Judge had found the position converse, inasmuch as, there the father of Dilip Kumar Das had retired from service sometime in 1995 and his mother had died on 21.10.1996 and accordingly, the learned single Judge had 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(m+ “YADI PATI-PATNI DONO SARKARI SEVAWAN MAI HO AUR KISI EK KI MIRTU HO JAE TO WAISI 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 husband and wife are in Government service and if one of them dies even 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, 8 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 21.10.96. 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 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, 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 approved the appointment of the petitioner and the petitioner joined his post.” Thus both the aforementioned factual matrix and the consequential law laid down in 9 the case of Dilip Kumar Das far from supporting the case of the petitioner would actually go against him. Similarly, the Division Bench judgment in the case of Jyoti Kumari (supra) the father had superannuated from service on 31.1.1995 whereas her mother had died in harness on 18.9.2000 whereafter Jyoti Kumari had filed application for appointment on compassionate ground on the ground of death of her mother. It was in that context the Division Bench in Jyoti Kumari's case (supra) also had laid down the law while approving the judgment of Dipak Kr. Das (supra) in the following terms:- “5. Compassionate appointment is not granted as a matter of right. The very object of compassionate appointment is to mitigate the hardship caused to the family due to untimely death of the bread earner. If both husband and wife are in government employment and one dies in harness and other continues in service, then there is no ground for providing appointment on compassionate ground to the dependent for the simple reason that other bread-earner is still alive. Clause (anga) of the 10 Government policy, as contained in Annexure 6, runs as follows: ¼M-½ ;fn ifr&iRuh nksuks ljdkjh lsok esa gks vkSj fdlh ,d dh e`R;q gks tk;s rks oSlh fLFkfr esa vuqdEik ds vk/kkj ij fu;qfDr dk ykHk muds ifjokj ds fdlh vkfJr dks ugha feysxkA 6. According to the said provision, when both husband and wife are in Government employment and one dies while other remains in employment, then no benefit of compassionate appointment can be given to any of the dependent 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 fact of it, appears to be non- applicable. 7. The view taken by the learned Single Judge in the case of Dilip Kumar Das vs. State of Bihar, reported in 2000(2)P.L.J.R. 203 is a correct law.” As noted above, in the present case the mother of the petitioner was in Government service on the date of death of the father of the petitioner and, therefore, the ratio laid down in both the aforementioned two cases of Dipak Kumar Das (supra) and Jyoti Kumari(supra) will not be applicable 11 specially when the Division Bench has categorically held such classification of denying appointment on compassionate ground as provided in Clause 1(M+) of the Govt. circular dated 5.10.1991 to be based on a rationale that if both the husband and wife are in Government employment and one dies in harness and other continues in service, there is no ground for providing appointment on compassionate ground to the dependant for a simple reason that other bread earner is still alive. Once this aspect would become clear that the petitioner was not eligible for being appointed and yet his appointment was made in violation of the Government policy for appointment on compassionate ground, there would be no difficulty in rejecting the remaining submissions of Mr. Sinha as with regard to the manner of removal of the petitioner from service. It is not in doubt that on 27.7.2007, the petitioner was given an opportunity to show cause as to why his appointment made on compassionate ground being in violation of 12 the Government policy namely his mother being in Government service on the date of death of his father, should be cancelled and in reply to the same, the petitioner had filed his explanation on 9.8.2007, wherein, the only plea taken by him was that he had made a correct declaration about the retirement of his mother on 28.2.2002 when he had filed an application and had submitted his affidavit on 4.6.2002. The petitioner, in fact, apart from this aspect had only reiterated his hardship being faced on account of the death of his father and retirement of his mother to be the solitary ground for his being continued in Government service by placing reliance on the judgment of this Court in the case of Deepak Kumar Das (supra). The said show-cause reply was, thereafter, considered by the impugned order dated 3.4.2008, wherein, it was held that the appointment of the petitioner, being in violation of Government policy, was unsustainable and consequently, the appointment of the petitioner made on compassionate ground on 19.7.2004 was cancelled by an order dated 13 11.4.2008. The submission of Mr. Sinha that since the impugned order was in the form of punishment and, therefore, a regular departmental proceeding ought to have been drawn will be of no avail in the facts of the present case, inasmuch as, when the appointment of the petitioner was itself ab initio void, in violation of the Government policy dated 5.10.1991, there was no question of the petitioner accruing any right much less of a permanent Government servant so as to invoke the provision of Article 311 of the Constitution. In any event, whatever has been stated by the petitioner in the show-cause reply could not have been magnified in any manner specially when he does not deny this fact that he was the sole issue of his parents and that after death of his father, his mother was still continuing in service. To a person like the petitioner, there was in fact no scope for being appointed on compassionate ground, inasmuch as, for a family of two, if there was death-cum- retirement benefit of the father of the 14 petitioner, income from salary of the mother of the petitioner for next three years and thereafter the death-cum-retirement benefit also of the mother of the petitioner, it cannot be said that the condition of the petitioner was one of penury which alone could qualify the petitioner to be appointed on compassionate ground. This aspect of the matter has been well settled by the Apex Court in the case of Umesh Kumar Nagpal Vs. State of Haryana & Ors. reported in 1994(4)SCC 138 and, therefore, the whole submission of Mr. Sinha as with regard to invoking equity in favour of the petitioner on the ground that since he had already been appointed and had continued in service for four years, he should not have been removed from service has to be also noted for being rejected. That being so, this Court does not find any merit in this writ application and the same is accordingly dismissed. Rsh (Mihir Kumar Jha, J.)