IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4197 of 2010 1. SULEKHA KUMARI WIDOW OF LATE RAM JIWAN MANDAL R/O VILL.- KHURDLODIPUR, P.S. LODIPUR (SABOUR), DISTT.- BHAGALPUR Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE BHAGALPUR 3. THE ADDITIONAL GENERAL COMMANDANT BIHAR HOME GUARD HEAD QUARTERS, BIHAR, PATNA 4. THE DISTRICT COMMANDANT HOME GUARD BHAGALPUR 5. THE GENERAL MANAGER BHARAT SANCHAR NIGAM LTD. BHAGALPUR ----------- 3. 15.11.2010 Heard learned counsel for the petitioner, for the State and for the Bharat Sanchar Nigam Limited (hereinafter referred to as the ‘B.S.N.L.’) The husband of the petitioner, Ram Jiwan Mandal (Home Guard No. 1483) appointed by the State Government was sent on duty in the B.S.N.L. vide Deputation No. 060263 on 24.11.2003. While on duty i.e. 28.12.2003 at the B.S.N.L. office at Nathnagar, Bhagalpur, the petitioner suffered heart ailment and was rushed to the hospital but expired. The petitioner seeks the twin relief of payment of all legal dues and admissible allowance and to be considered for compassionate appointment. It is not in controversy between counsel for the parties as a question of fact that the deceased was appointed as a Home Guard by the State of Bihar and his services were under the State of Bihar. The 2 master servant relationship was primarily between him and the State of Bihar. Based on deputation and assignment of duties at any other place there was only temporary control over him in discharge of duties by the Department of deputation but at no time did the master servant relationship with the State Government stands severed. The State Government does not deny his entitlement to compensatory allowance in terms of the State Government decision dated 23.9.1999 brought on record by it in its counter affidavit quantifying the amount to be paid at Rs. 50,000/-. Counsel for the petitioner has been unable to demonstrate any policy decision of the State Government on the date of death providing for compassionate appointment of a deceased Home Guard. The law stands well settled that appointment on compassionate ground is strictly to be made in accordance with policy decision regulating the same. If there is no policy decision no claim for compassionate appointment shall lie. Any subsequent policy decision to that effect on 27.1.2006 has to be prospective and can be of no avail to the petitioner to found a claim to be considered for compassionate appointment. In so far as the claim for compensation on 3 account of death on duty is concerned, if the deceased was an employee of the State Government, the primary responsibility lies with the State Government which took the policy decision to pay compensatory allowance under specified circumstances. The State cannot take a policy decision accepting liability and then fasten the liability on the department of deputation unless there was an agreement to the at effect as one of the conditions of deputation. Nothing has been brought on record by the State to demonstrate what the terms of deputation agreed upon between the State Government and the Department of B.S.N.L. was? The Court is is therefore satisfied that the primary responsibility to pay the compensatory dues in accordance with the policy decision dated 23.9.1999 rests with the State Government. The defence of the State Government that according to agenda points for discussion at the All India Civil Defence and Home Guard Conference to be held at New Delhi on 28th May, 1997 it was proposed that such liability should be left to the Department of deputation cannot be considered conclusive at this stage since it was only an agenda for discussion. What was the final decision taken or agreed upon, is 4 not known. In any event of the matter, the dispute is between the State Government and the B.S.N.L. The widow of the deceased cannot be allowed to suffer once the policy for payment is accepted. After the payment is made by the State Government it may approach the Ministry of Home Affairs for appropriate decision for determination of the liability whether it shall ultimately rest with the State Government or the B.S.N.L. Learned counsel for the B.S.N.L. submits that it shall render all necessary co-operation during such hearing and abide by any such decision. Let the State of Bihar comply the policy decision dated 23.9.1999 and pay a sum of Rs. 50,000/- to the petitioner within a maximum period of eight weeks from the date of receipt/production of a copy of this order. The writ application stands allowed to the extent indicated only. P. Kumar ( Navin Sinha, J.)