IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2454 of 2007 MD.NIZAMUDDIN, son of Late Md. Suleman, resident of village- Khalilpura, P.O. Phulwari Sharif, P.S. Danapur, District- Patna. … Petitioner. Versus 1. THE STATE OF BIHAR through the Commissioner cum Secretary Department of Energy, Bihar, Patna. 2. The Engineer-in-Chief, Department of Energy, Bihar Patna. 3. The Chief Engineer, Department of Energy, Patna, Division, Patna. 4. The District Collector-cum-President, District Level Compassionate Committee, Patna. 5. The Superintending Engineer, Patna Electric Circle, Patna. 6. The Executive Engineer, Electrical, Electric Works Division, Patna. 7. The Assistant Engineer, Electric Sub-Division, Patna. … Respondents. ----------- 2. 31.03.2011 Heard Mr. Dhananjay Kumar, learned counsel for the petitioner and learned counsel for the State. The prayer of the petitioner in this writ application reads as follows:- (i) To issue rule in the nature of certiorari to quash the impugned order contained in Annexure- 5, passed by District Compassionate Committee, Patna on 2.8.05 by which the application for appointment on compassionate basis of the petitioner has been rejected on most arbitrary manner. (ii) To issue rule in the nature of mandamus commanding the 2 respondents to consider the case of the petitioner for appointment on compassionate ground on account of death of his father who died as permanent labourer during his service period.” Mr. Kumar in support of the aforementioned relief had first submitted that since the qualification of having passed Class 8 examination for being appointed on Class IV posts for the first time was introduced in the year 2002, the petitioner’s case would not be governed inasmuch as his father had died in harness on 23.12.1998 whereafter his application was filed on 4.1.1999 seeking appointment on compassionate ground. He would therefore submit that educational qualification for class IV posts as it was applicable on 4.1.1999 should have been made applicable by the authorities but since in the impugned order rejection of the case of the petitioner for appointment on compassionate ground is based only on his not having passed Class VIII examination, a circular which came to be added only in the year 2002 the entire approach of the respondents and 3 consequential impugned order is unsustainable in law. This Court would find that the respondents have explained this aspect in the counter affidavit wherein they have produced the copy of relevant rules as it was existing on 25.4.1997 and one which was amended on 23rd September 2002. The earlier provision as provided in 25.4.1997 reads as follows:- “ oRrZeku izko/kku%& budh 'kS{kf.kd ;ksX;rk v"Ve oxZ ds mij ,oa izosf’kdk ;k blls uhps dh gksxhA” The same was amended on 23.9.2002 in the following terms:- "la'kksf/kr izko/kku%& budh U;wure 'kS{kf.kd ;ksX;rk v"Ve oxZ mRrh.kZ gksxhA” Thus, from a comparative reading of the two provisions one which was prevailing on 25.4.1997 and the other which was brought by way of amendment, it would be more than clear that passing of Class VIII examination was all along requirement for being appointed on a Class IV posts in the State of Bihar. That being so, the first submission of Mr. Kumar must be rejected. Mr. Kumar then submitted that since the 4 petitioner had already passed the class VIII examination in the year 2000 as would be evidenced from his transfer certificate, the respondents were not justified in rejecting his case on the basis of his having not pass Class VIII examination in the year 2005 by the impugned order. In the considered opinion of this Court even this submission of the learned counsel for the petitioner cannot be accepted. The circular dated 5.10.1991 by the State Government lays down certain procedure by which such appointment has to be made. Said provision lays down filing of application in a prescribed format disclosing the date of birth as also the details of the persons claiming compassionate appointment with his qualification. Admittedly, on 5.1.1999 when such application was filed by the petitioner after the death of his father in the year 1998, he had declared his qualification as to have passed Class VII. This was the qualification which was placed before the authority including District Compassionate Appointment Committee. Whether the petitioner thereafter had continued his education or had appeared in Class 8 5 examination could not have been a material circumstance specially when the authorities had before them only the self-declaration of the petitioner to have passed Class VII examination only. There is absolutely nothing on record to show that the petitioner had filed any supplementary application before consideration by the District Compassionate Appointment Committee that he had already passed Class-VIII examination within the prescribed period of limitation of five years. As a matter of fact, this aspect of the matter has been clarified by the respondent no. 6 by filing counter affidavit wherein it has been indicated that after the case of the petitioner was rejected by the District Compassionate Appointment Committee on 2.8.2005 on the ground that he did not have educational qualification of having passed Class VIII examination, he had subsequently filed a fresh application on 12.11.2005 wherein he for the first time had claimed to have passed Class VIII examination and the same was sent to Collector Patna dated 11.2.2006 and was considered and rejected by the District Compassionate Appointment Committee by a resolution passed on 6 27.2.2006 on the ground that the fresh application was filed after five years from the date of death of the father of the petitioner ( in fact after eight years). Therefore, this Court would not find any merit in this part of submission as well that the impugned order rejecting the case of the petitioner on the ground of educational qualification suffers from any error. Additionally from the counter affidavit it is also clear that the appointing authority, namely the Executive Engineer Electric Works Division, Patna while sending the fresh application of the petitioner to the Collector Patna district vide his letter dated 11.2.2006 (Annexure-A) wherein it was mentioned that there was no vacancy in Energy Department and if the case of the petitioner is found fit he may be recommended for appointment in any other department. The fact of these being no vacancy in the department where the father of the petitioner was employed will be itself sufficient to hold that the petitioner cannot be appointed on compassionate ground inasmuch as it is the department, where the deceased employee was working, has to make appointment against any vacant 7 post, inasmuch as, the relevant part of the Government Policy of compassionate appointment prescribed in the circular dated 05.10.1991 reads as follows:- lsokdky esa e`r ljdkjh lsodksa ds vkfJrksa dks oxZ &3 ,oa 4 ds inksa ij vuqdEik ds vk/kkj ij fu;qfDr dh izfØ;kA funs'kkuqlkj dguk gS fd vc rd lsokdky esa fdlh ljdkjh lsod dh e`R;q gksus ij e`r ljdkjh lsod ds vkfJrksa dks oxZ &3 ,oa oxZ &4 ds inksa ij fu;qfDr gsrq dkfeZd,oa iz'kklfud lq/kkj foHkkx }kjk fuxZr lHkh vuqns'kksa dks voØfer djrs gq, ljdkj us ;g fu.kZ; fy;k gS fd vuqdEik ds vk/kkj ij fu;qfDr dh izfØ;kvksa dks bl izdkj ljy ,oa izHkkodkjh cuk;k tk;s fd ljdkjh lsod ds e`R;ksijkUr mlds vkfJr dks fcuk foyEc ds oxZ &3 ds dfri; inksa vFkok oxZ 4 ds inksa ij fu;qfDr fey ldsA bl mn~ns'; ls ljdkj us fuEukafdr fu.kZ; fy;k gS& 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 8 In fact from part-2 of the prescribed format of application vide Annexure-8 and its column no. 1, 2, 3, 7 and 8 reading as follows:- 1- ¼d½ fu;qfDr ds fy, mEehnokj dk uke %& --------------------------------- ¼[k½ e`r ljdkjh lsod ls mldk laca/k%& ------------------------------------ ¼x½ 'kS{kf.kd ;ksX;rk] mez¼tUe frfFk½ ,oa vuqHko ;fn gks rks%&--------- ¼?k½ in ftl ij fu;qDr ds fy;s izLrko fd;k tk jgk gS%& ----------- ¼M+½ D;k izLrkfor in ij lh/kh fu;qfDr nh tk ldrh gS\%&------------ ¼p½ D;k mEehnokj in ds fy;s fofgr vgZrk ¼mez laca/kh vgZrk lfgr /kkj.k djrk gS%& -------------------------------------------------------------------------- ¼N½ fu;kstuky; dh izfdz;k ds f'kfFkyhdj.k djus ds vykos D;k vU; dksbZ f'kfFkyhdj.k Hkh visf{kr gS\ ;fn gka rks fooj.k nsa%& 2- D;k [k.M&1 esa mfYyf[kr rF;ks dh dk;kZy;@foHkkx }kjk Lora= :Ik ls tkap dj yh xbZ gS\ ------------------------------------------------------------------------- 3- e`r ljdkjh lsod dh fu;qfDr] fu;qfDr dh fofgr izfdz;k dk rFkk vkj{k.k uhfr dk vuqikyu djrs gq, jksLVj fcUnq ds vuqlkj dh xbZ Fkh\---------------------------------------------------------------------------------------------------------------- 4- D;k vkosnd fookfgr gSa\ ;fn gka rks fookg ds le; mudh mez D;k Fkh\- ------------------------------------------------------------------------------------------------------------- ---------- 5- D;k vkosnd dh nks ifRu;ka@ifr thfor gSa\------------------------------------- 6- D;k vkosnd us fookg esa ngst ysus@nsus dk dk;Z fd;k Fkk vFkok mldk vk'oklu fy;k@fn;k Fkk\ --------------------------------------------------------- 7- e`r ljdkjh lsod tgka vafre le; esa dk;Zjr Fks] ds dk;kZy; iz/kku dk iw.kZ gLrk{kj] frfFk ,oa dk;kZy; dh eqgj%&------------------------- 8- fu;a=.k inkf/kdkjh@foHkkxk/;{k ¼;fn os dk;kZy; iz/kku ls ojh; inkf/kdkjh gksa½ dh vuq'kalk,a%&---------------------------------------------------------------- would leave nothing for speculation, it is the particular office/department where the deceased employee was working at the time of his death in the unit where appointment has to be made. 9 Judged in this background since the father of the petitioner was working in Electricity Department, any appointment could have been made only against a vacant post in that department only. The petitioner does not dispute that there was/is no vacancy in Electricity Department and the reasons given by the Executive Engineer and Chief Engineer as with regard to lack of vacancy in Electricity Department does not suffer from any error on record. Once this aspect would therefore become clear that there was/is no vacancy in the Electricity Department, the petitioner could not have been appointed on compassionate ground by switching over his claim to the establishment of Gaya collectorate, inasmuch as, his father was not an employee of Gaya collectorate, nor the petitioner’s application in part-2 of the prescribed application (Appendix-1 to the Government Policy) was recommended by the Gaya Collectorate. If the submission of learned counsel for the petitioner that in every case where there would be no vacancy in the office/department of the deceased employee for appointment on compassionate ground , 10 the Collector of the district would be under an obligation to make appointment on compassionate ground against a vacant post in the Collectorate is accepted and taken to its logical conclusion it would lead to an absurd situation, inasmuch as, Collector is the Chairman of the District Compassionate Appointment Committee and therefore in terms of the Government policy dated 05.10.1991, he has not only to function as a Chairman of the Compassionate Appointment Committee but to also make recommendations received from other departments so that he may be become responsible for making all appointment only in the Collectorate to the exclusion of other departments. That however does not seem to be and in fact is not the scope of the prevalent Government policy as laid down in the circular dated 05.10.1991. In this context, the format of the application under Enclosure-I to the Government circular dated 05.10.1991 prescribing the Recommending Authority and Appointing Authority as defined in the Government circular dated 05.10.1991 is closely 11 examined, the same by itself would become abundantly clear that the unit for such consideration is the office/department where the deceased employee was working prior to his death. The Collector of the district, who has been vested power to consider all such cases of appointment of class-III and class-IV posts in the various departments at the district level vide two circulars no. 13340 and 13441 dated dated 03.12.1980, has to only make recommendation to the respective Appointing Authority of different departments for making appointments against vacant posts. It is this background that it has to be held the appointment on compassionate ground has to be made in the office/department where the deceased employee dying in harness was working. That it would be sufficient to hold that such system has worked satisfactorily till date by making appointment on compassionate ground on the recommendation of the committee headed by the Collector to the Appointing Authority. The vacancy therefore, has to be found out in the office/department in which the deceased employee was working and not that such vacancy will 12 have to be explored in any other Government department including the Collectorate from where the recommendation has been made for appointing a person on compassionate ground. Once this aspect becomes clear that there was no vacancy in the Electricity Department, the petitioner’s claim for such appointment on compassionate ground had to be rejected, inasmuch as, the appointment on compassionate ground can only be made by the employer, if there be a vacancy. Counsel for the petitioner would also refer to the fact that under similar circumstances, one Md. Wasi whose case was also rejected earlier by the same impugned order on the ground of his being not having passed Class VIII examination was subsequently appointed in view of the order of this Court dated 6.7.2004 in CWJC No. 12899 of 2003 and the order dated 6.12.2006 in MJC No. 6.12.2006 in M.J.C. No. 1268/05. This Court has carefully gone into the said order of Md. Wasi and in fact would find that no law was laid down except a direction was given to consider 13 the case of the petitioner on 6.7.2004 and therefore the impugned order passed by the District Compassionate Appointment Committee dated 22.7.2005 was not even noticed by the learned single Judge disposing of the writ application of Md. Wasi on 6.7.2004. In that view of the matter, the order passed by this Court in the contempt application to the effect that the counsel for Md. Wasi had sought permission to withdraw the application as an appointment letter had already been issued to him, will not in any way constitute a binding precedent for this Court to either direct for appointment of the petitioner on compassionate ground even when this Court has found that there is no error in the order of authority dated 22.7.2005 rejecting the case of the petitioner, This Court is also not aware under what circumstances even without their being any direction from this Court for appointing Md. Wasi, the Government had appointed Md. Wasi or under what circumstances the counsel for Md. Wasi had withdrawn the contempt application. In any manner Article 14 cannot be enforced in a negative manner and one 14 illegality committed in the case of Md. Wasi, cannot be directed to be perpetuated even by appointing the petitioner. That being so, this Court does not find any merit in this application and the same is, accordingly, dismissed. kanchan/- ( Mihir Kumar Jha, J.)