1 IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13679 of 2007 JAIPRAKASH PANDIT, S/O LATE ARJUN PANDIT, R/O VILLAGE POAAWA, P.S. MASAURHI, DISTRICT PATNA. .............PETITIONER. Versus 1.THE STATE OF BIHAR. 2.THE SECRETARY, ELECTRICITY DEPARTMENT, BIHAR. 3.THE ENGINEER IN CHIEF ELECTRICITY DEPARTMENT, BIHAR. 4.THE CHIEF ENGINEER, ELECTRICITY DEPARTMENT, BIHAR. 5.THE SUPERINTENDING ENGINEER, ELECTRICITY DEPARTMENT, PATNA. 6.THE EXECUTIVE ENGINEER, ELECTRICITY DEPARTMENT, BHAGALPUR. 7.THE EXECUTIVE ENGINEER ELECTRICITY DEPARTMENT, PATNA. 8.THE DISTRICT MAGISTRATE, GAYA. 9.THE DISTRICT MAGISTRATE, PATNA. .............RESPONDENTS. ----------- 03/ 25.04.2011 Heard counsel for the petitioner and counsel for the State. In this case, a prayer has been made by the petitioner to the following effect:- “To issuance an appropriate writ rule in the nature of mandamus for issuing direction for appointment of the petitioner on compassionate ground. To issuance an appropriate writ or direction commanding upon the respondents to discharge their statutory obligation in accordance with law. Learned counsel for the petitioner would submit that the father of the petitioner was working as work supervisor 2 (Karya Darshak) in Electricity Department who had died in harness on 19.12.2002, thereafter the petitioner’s application for appointment on compassionate ground was duly considered by the committee in its meeting held on 24.11.2005, which had recommended for appointment of the petitioner in the Electricity Department against class-III post and to that extent the Electrical Executive Engineer Works Division, Bhagalpur was informed to do the needful for appointment of the petitioner on compassionate ground. Counsel for the petitioner further submits that though the petitioner has been kept waiting for such appointment on compassionate ground, but the authorities had taken no fruitful step for appointing the petitioner and only letters are being exchanged in between different offices for finding out some vacancy for the petitioner in any other department, in view of the fact that there is no vacancy in Electricity Department. He accordingly submits that when the Chief Engineer of the Electricity 3 Department had desired that the Collector of the district should make appointment of the petitioner in his own establishment, the Collector could not have refused such direction especially when the same was backed by recommendation of the District Compassionate Appointment Committee headed by the Collector. In this regard, he has placed reliance on the Division bench judgment in the case of Sunaina Devi vs The Union of India and Ors, reported in 2010(4) PLJR 448 as also the order of the learned single judge in the case of Vivekananda Singh Vs The State of Bihar & Ors reported in 2010(4) PLJR 807. Learned counsel for the State, on the other hand would place reliance on the counter affidavit filed by the Collector of Patna district, wherein, it has been only stated that the matter relates to Bhagalpur district and as such he has got nothing to do with this case. This Court really fails to explain the purpose of filing of such counter affidavit which is in fact a drain on the 4 State exchequer serving absouletly no purpose. It is high time that the Chief Secretary of Bihar and Law Secretary address themselves to this persistent in malady of filing a meaningful counter affidavit in liason with the office of the Advocate general for ensuring that not only a counter affidavit is filed in time but the same is also purposeful rendering assistance to this Court to decide the issues involved in the writ petition. Once this Court would eliminate the wholly unrequired counter affidavit of the Collector of Patna district, the position would be that as if there is no counter affidavit in this case which was filed way back on 29.10.2007. In such a situation, this court has to proceed on the basis of the averments made in the writ application itself. It however clear from the reading of the letter of the Executive Engineer dated 31.01.2006, soon after the receipt of the recommendation made by the District Compassionate Appointment Committee on 24.11.2005 that there was no vacancy within 5 his jurisdiction in the Electricity Department, on which the petitioner could have been appointed. The Electrical Executive Engineer, Works Division, Bhagalpur of the Government of Bihar, in fact had also made correspondence with the Chief Engineer of Electricity Department who too had shown his inability to appoint the petitioner in Electricity Department, on account of want of vacancy and had only advised the Executive Engineer to get in touch with the Collector of the Gaya district for requesting him to make appointment in the Gaya Collectorate itself. The said letter dated 31.01.2006 of the Chief Engineer, therefore, could not have changed the whole scheme of compassionate appointment, wherein, it is the department, where the deceased employee was working, has to make appointment against any vacant 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 6 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 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 7 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. 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 8 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 , 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 9 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 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 10 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 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. 11 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. The Apex Court in fact itself has in the case of Umesh Kumar Nagpal vs The State of Haryana, reported in 1994(4) SCC 138 not followed the earlier view taken in this regard in the case of Sushma Gosain and Ors vs Union of India and Ors, reported in 1989(4) SCC 468, wherein it was held as follows:- “4. It is for these reasons that we have not been in a position to appreciate judgments of some of the High Courts which have justified and even directed compassionate employment either as a matter of course or in posts above classes- III and IV. We are also dismayed to find that the decision of this Court in Sushma Gosain v Union of India has been misinterpreted to the point of distortion. The decision does not justify compassionate employment either as a matter of course or in employment in posts above classes III and IV. In the present case, the High Court has rightly pointed out that the State Government's instructions in question did not justify compassionate employment in class- 12 II posts. However, it appears from the judgment that the State Government had made at least one exception and provided compassionate employment in class II post on the specious ground that the person concerned had technical qualifications such as M.B.B.S, B.E, B. Tech etc. Such exception, as pointed out above, is illegal, since it is contrary to the object of making exception to the general rule. The only ground which can justify compassionate employment is the penurious condition of the deceased's family. Neither the qualifications of his dependent nor the post which he held is relevant.” Yet again the Apex Court in the case of Director of Defence Metal REsearch Laboratory Vs. G. Murali, reported in 2003(9) SCC 247 had held that creating a supernumerary post for appointing a person on compassionate ground as directed by the High Court was not sustainable. The reliance placed by counsel for the petitioner on the Division Bench judgment of this Court in the case of Sunaina Devi (supra) is also wholly misplaced, inasmuch as paragraph no. 11 of the said judgment it was held that:- “11. So far as the facts of this case are concerned, we have no hesitation in coming to a finding that the authorities themselves were not knowing 13 the vacancy position in the relevant years when the claim of petitioner no.2 required consideration. It is further clear that 43 points allotted to petitioner no.2 in the year 2001 does not appear free from a doubt of being erroneous.” Thus it would be clear that no such issue as in the present case was involved therein as with regard to the factual position of there being no vacancy in the department. On the other hand, Division Bench in the case Sunaina Devi (supra) has noted that the authorities were themselves in a state of fix as with regard to availability of vacancy and in fact the person claiming compassionate appointment therein, was sought to be eliminated by reducing his marks against the earmarked Central Government policy of five per cent posts for compassionate appointment. So far, the case of Vivekananda Singh(supra) is concerned, this court must record that in a three paragraph order nothing has been laid down therein which can be read as a law and in fact it only talks of some direction from the State Government to the Collector of the district for 14 appointing the petitioner Vivekananda Singh on compassionate ground. From the said order, it is not clear as to in which department the deceased employee, the father of the petitioner Vivekananda Singh, was working while a clarification was issued by the State Government as with regard to his appointment in the Collectorate. If there be a specific Government decision to this effect in the case of Vivekananda Singh that also cannot be made applicable in the present case, inasmuch as, there is no similar Government decision to this effect in favour of the petitioner. The Chief Engineer of Electricity department is definitely not the State Government for the purpose of issuing such a direction to the Collector of the district and in fact he had also not done so, while asking the Executive Engineer to make a request to the Collector to adjust the petitioner on any vacancy in the Collectorate at Gaya. That being so, both the aforesaid judgments cited by learned counsel for the petitioner will have no application to the 15 facts of the present case, wherein, it is an admitted position that the appointment of the petitioner could not be made on account of want of vacancy in the Electricity Department. Thus for the reasons indicated above this Court does not find any merit this writ application and the same is accordingly dismissed. Ranjan (Mihir Kumar Jha, J)