CIVIL WRIT JURISDICTION CASE No.12442 of 2006 With CIVIL WRIT JURISDICTION CASE No.12493 of 2006 ------ In the matter of applications under Article 226 of the Constitution of India. ------ In CWJC No.12442 of 2006 MANOJ KUMAR MAHTO, SON OF LATE MAHESH MAHTO, RESIDENT OF MOHALLA CHIRAITAND, POSTAL PARK, ROAD N.2, P.S. KHANKARBAGH, DISTRICT PATNA. ….PETITIONER Versus 1. BIHAR STATE ROAD TRANSPORT CORPORATION, THROUGH ITS ADMINISTRATOR, BIHAR, PATNA. 2. THE ADMINISTRATOR, BIHAR STATE ROAD TRANSPORT CORPORATION, BIR CHAND PATEL MARG, PARIVAHAN BHAWAN, PATNA. 3. THE CHIEF OF ADMINISTRATION, BIHAR STATE ROAD TRANSPORT CORPORATION, BIR CHAND PATEL MARG, PARIVAHAN BHAWAN,PATNA. …RESPONDENTS In CWJC No.12493 of 2006 BIJAY KUMAR SINGH, SON OF LATE KRISHNA KUMAR SINGH, RESIDENT OF VILLAGE NAYA CHAK, P.S.GAURI CHAK, DISTRICT PATNA. …PETITIONER Versus 1. THE BIHAR STATE ROAD TRANSPORT CORPORATION, THROUGH ITS ADMINISTRATOR, BIHAR, PATNA. 2. THE ADMINISTRATOR, BIHAR STATE ROAD TRANSPORT CORPORATION, BIR CHAND PATEL MARG, PARIVAHAN BHAWAN, PATNA. 3. THE CHIEF OF ADMINISTRATOR, BIHAR STATE ROAD TRANSPORT CORPORATION, BIRCHAND PATEL MARG, PARIVAHAN BHAWAN, PATNA. …RESPONDENTS ----------- For the Petitioner : Mr. A. Amanullah,Advocate, (In both cases) : M.K.Pathak, Advocate, :Mr. A.K.Prasad, Advocate, :Mr.S.Rahman, Advocate & :Mr. J.G.Khan,Advocate For the Respondents : Mr. P.K.Verma & (In both cases) :Mr. Nand Kr. Singh, Advocates. ----- P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL *** CWJC No. 12442 of 2006 S. K. Katriar,J. This writ petition is directed against the order dated - 2 - 28.07.2006 (Annexure-5), whereby the services of the petitioner has been dispensed with in the circumstances indicated hereinbelow. 2. Mahesh Mahto, the petitioner’s late father, was on a Class IV assignment under the respondent-Corporation. He died in January, 1990. The petitioner submitted an application for his appointment on compassionate ground was allowed, and he was given a Class IV assignment in the Corporation in June,1990. The petitioner has continuously functioned till the issuance of the impugned order on 28.07.2006. 2.1 Purusottam, Ram Binay Verma,, and Krishna Kant, sons of different employees of the Corporation, submitted their separate applications before the Corporation, stating therein that their respective fathers died while still in service and, therefore, they may be given appointment on compassionate ground. The father of one of them had died in 1986, and that of other one had died in 1988. The respondent authorities sat over the matter, leading to CWJC No. 8588 of 1991 and CWJC No.5992 of 1992 and then CWJC No.9118 of 2004. It is relevant to state that the same was lodged in this Court in 1991,1992 and on 9.8.2004 respectively, i.e., after a delay of 5 & 4 and subsequently 12 years. The respondent-Corporation took the stand in that writ petition i.e., CWJC No.9118 of 2004 that it was passing through a period of very bad financial crisis and was, therefore, unable to accommodate those petitioners. The first two writ petitions were disposed of by Division Bench and a learned Single Judge of this Court on 13.11.1992 and 21.07.2005, respectively with the observations that the Corporation was not considering such applications seeking appointment on compassionate ground on the basis of their position in the seniority list of - 3 - such candidates. The writ petition was, therefore, disposed of with the direction to the Corporation to cancel the appointment of those persons who had been appointed on compassionate ground and were junior to the petitioners of CWJC No.9118 of 2004. 2.2. In view of the direction of the Court, respondent no.2 issued show-cause notice dated 20.10.2005 (Annexure-3), calling upon the present petitioner to explain as to why his services be not dispensed with. The petitioner had shown cause by his communication dated 31.10.2005 (Annexure-4). The same was considered by the authorities leading to the impugned order, whereby the services of the petitioner have been dispensed with leading to the present writ petition. We may incidentally mention that this matter was initially laid before a learned Single Judge, who passed the order dated 31.03.2010, and referred the matter for consideration and disposal by a Division Bench. That is how the matter is before us. 3. We have perused the materials on record and considered the submission of the learned counsel for the parties. We are mindful of the position that the present petitioner was not a party to the said CWJC No. 9118 of 2004. We are equally mindful of the position that the same has attained finality and, therefore, the authorities were bound to implement the terms of that order. It is further relevant to state that, as stated hereinabove, the subsequent writ petition was lodged in this Court after a delay of nearly 12 years. On the other hand, the father of the present petitioner had died in January,1990, his application was promptly considered by the authorities, and he was given appointment on compassionate ground in June,1990. In other words, he continuously functioned from June,1990 till 28.07.2006 the date on which the - 4 - impugned order was passed. We do not consider it to be just and proper and equitable to dispense with the services of the present petitioner who functioned continuously for 16 years. It is a possible situation that the authorities may not have done justice to the petitioners of CWJC No. 9118 of 2004, but then it is manifest on the very face of it that those petitioners approached this Court after such a long lapse of time which by itself was a strong ground to dismiss the aforesaid writ petition, i.e., CWJC No.9118 of 2004. We, therefore, disagree with the approach of the learned Single Judge. Courts are meant to nullify arbitrary action, or inaction which may be another facet of arbitrary action of the authorities, provided the aggrieved person approaches this Court without delay. The very fact that they had claimed appointment on compassionate ground after demise of their respective fathers by itself leads to the conclusion that they were major and were in a position to approach this Court in time. Not having done so, they will have to suffer for their own inaction and indolence, and raised a stale claim, and cannot be permitted to unsettle the settled affairs with respect to others. 4. Law is equally well-settled that all public employments in this country is a national wealth. Every citizen of this country should have unrestricted access to the same which is possible only if the vacancies are advertised and widely disseminated, so that every eligible candidate has the opportunity to apply for consideration of his case. Appointment on compassionate ground is denial to the proposition of law, is based on descent and, therefore, the Courts have generally set their face against such an order of appointment which is almost in the nature of back-door entry. However, as an exception, the Courts have upheld it where it is permitted by Rules, or by a well-formulated executive instruction or a - 5 - policy decision. The sole purpose of appointment on compassionate ground is to recognize the services of a devoted employee whose family should not be left high and dry in life on account of untimely demise. It is now well-settled by a long line of cases that appointment on compassionate ground can be allowed if the late employee had rendered devoted & useful service to the employer, had died in harness, the family is in immediate need of succour without which the family of the late employee cannot stand on its feet, and cannot do without the emergent help of the employer. The employer will be entitled to deny this relief in cases where it is noticed that the family is not in impecunious circumstances, or the family care has been taken care of by lapse of time which is not attributable to the negligence of the petitioner. Reference may be made to the following reported judgments of this Court: 1994 (4) SCC, 138 (Umesh Kumar Nagpal vs. State of Haryana). 1996 SC, 764 (Union of India vs. C.N.Poonappan) 1998 (5) SCC, 192 (Director of Education (Secondary) & Anr. vs. Pushpendra Kumar & Ors.) 5. We have not had the benefit of a comparative statement of the circumstances with respect to the three petitioners of CWJC No. 9118 of 2004 on one hand, and the present petitioner, on the other. However, the scanty informations available in the proceeding makes it evidently clear that, as stated hereinabove, those three petitioners had approached this Court after enormous delay, meaning thereby that those employees had not left their families in impecunious circumstances which is a valid ground to deny the benefit of appointment on compassionate ground. On the other, in the present case, the petitioner approached the authorities - 6 - promptly, and was equally promptly given the benefit of appointment on compassionate ground, meaning thereby he was in urgent need of support. It would, therefore, be a travesty of justice the benefit of appointment is withdrawn after he has continuously worked for 16 years.. Settled affairs can not be unsettled in this manner. 6. Then comes the question of relief to the petitioner. The authorities cannot be blamed for passing the impugned order, because the same has been passed in implementation of the order of this Court. Our predicament has been resolved by the petitioner himself by stating as follows in his supplementary affidavit: “That it is humbly submitted that in the event of this Hon’ble Court allowing the writ petition and quashing the order of cancellation of the services of the petitioner, he on his own free will and accord is ready and willing to forego his salary for the period he has not worked due to issuance of the impugned order with the protection that the said period would not be counted as break in service but would be notionally counted as continuity in service for all other purposes including length of service, post retrial benefits etc.” 7. In the result, this writ petition is allowed. The impugned order dated 28.07.2006 (Annexure-5), is hereby set aside, subject to the conditions stated in paragraph 2 of his supplementary affidavit and reproduced hereinabove. The petitioner shall be reinstated in service with effect from 01.07.2010 CWJC No. 12493 of 2006 8. Both the writ petitions are identical except some difference of dates which are inconsequential for disposal of the present writ petition. The petitioner of CWJC No. 12493 of 2006 was appointed on compassionate ground on the post of Junior Statistical Clerk. The present petitioner has also placed on record his supplementary affidavit making - 7 - identical statement. 9. In the result, CWJC No. 12493 of 2006 is also allowed on the same terms and conditions as CWJC No. 12442 of 2006. There shall be no order as to coasts. ( S. K. Katriar ) ( Kishore K. Mandal ) Patna High Court, Dated the 3rd day of May, 2010 HR/AFR