Bhagwan Ram vs State of Bihar and Others

Narayan Roy, J.—Heard counsel for the parties.

This writ application is directed against that part of order dated 16.6.2003 as contained in Annexure 4C, whereby and where under the claim of the Petitioner for his appointment on compassionate ground has been rejected.

According to the case of the Petitioner, he applied for his appointment on compassionate ground on account of death of his father, namely, late Jibodhan Ram, who was working permanently on regular post under the Respondent. His case for appointment was recommended by the Department concerned and the District Compassionate Appointment Committee, however, rejected his claim for appointment on compassionate ground holding that his father was not a regular Government servant.

According to the case of the Respondent, as disclosed in the counter affidavit, the father of the Petitioner was initially engaged as tube well operator under the Respondent on 1.5.1971 and since he has worked for some time, he was regularised with effect from 5.1.1981 in the Work Charged Establishment itself in consonance with Note 3 to Rule 59 of the P.W.D. Code, and, as such, the Petitioner does not come within the definition of a Government servant under the Rules framed by the State Government for appointment on compassionate ground.

The question, which has fallen for consideration in this case, is as to whether a work Charged Establishment employee, if regularised in the regular cadre of Class IV employees, would be a Government servant under the meaning of the provisions of the Rules framed by the State Government for appointment on compassionate ground, and, secondly, as to whether the dependent of such employee would be entitled for appointment on compassionate ground.

Learned Counsel for the Petitioner submitted that the father of the Petitioner was initially appointed under the Work. Charged Establishment under the Respondent as a tube-well operator on 1.5.1971 and subsequently he was regularised on permanent basis with effect from 5.1.1981 and, thus, he became absolutely a Government servant since the date of his regularisation, and, therefore, he remained as a Government servant till his death and the Petitioner being one of the dependents, therefore, was entitled for appointment on compassionate ground.

Learned Counsel for the State, on the other hand, submitted that the father of the Petitioner was regularised in consonance with Note 3 of Rule 59 of RW.D. Code and he was never regularised in the regular cadre, and, therefore, till his death, he remained as an employed under the-Work Charged Establishment and he never became a Government servant, and, thus, the Petitioner was not entitled for appointment on compassionate ground.

Counsel for the parties in support of their respective propositions have placed reliance on conflicting reported and unreported orders of this Court. In case of Shashi Bhushan Sharma v. State of Bihar and Ors. in CWJC No. 1085 of 2003 this Court while dealing with a different question with regard to the pay scale of a regularised employee from amongst the Work Charged employees, noticing the circular of the State Government, issued vide memo No. 3058 (F) dated 20th October, 1984, wherein it was stipulated that the employee of the Work Charged Establishment, if brought on the regular side, would be deemed to be a regular employee for the purpose of salary, pension, etc. and he will get all benefits of regular employee, remitted the matter to the authority concerned to consider the case of the writ Petitioner of that case for grant of the pay scale in the light of the Circular aforesaid.

In case of Bhushan Kumar v. State of Bihar and Ors. in CWJC No. 2105 of 2003, a learned single Judge of this Court held that appointment on compassionate ground cannot be refused only on the ground that prior to the regularisation of the father of the Applicant he worked as a Work Charged employee. It further held that the fact that he became regular employee, prima facie indicates that the regularisation was against sanctioned post.

In case of Smt. Meera Devi v. State of Bihar and Ors. 2000 (1) PLJR 493, a learned single Judge of this Court held that for appointment on compassionate ground the guideline/scheme issued by the State Government is applicable to temporary Government services and is also applicable to the employees working in the Work Charge Establishment and their dependents.

In case of Mukesh Kumar Mishra Vs. The State of Bihar and Others a learned single Judge of this Court dealing with almost similar situation in analogous writ applications held that appointment on compassionate ground of the dependents of Work Charged Establishment employees, though brought on regular establishment, is not permissible in view of the Circular dated 27.12.2002, and. Thus the action of the State authority in refusing appoint the dependents of such employees would not be violative of Articles 14 and 16 of the Constitution and dismissed the writ applications of other Petitioners except that of Mukesh Kumar Mishra and remanded his case to the authorities concerned to consider his case for appointment on compassionate ground holding that the case of the Petitioner he s to be treated on different footing, as his father was regularised on the post of Accounts Clerk, a sanctioned post in the regular establishment.

In view of the conflicting decisions, as referred to above, in my opinion, it would not be advisable for me to decide the questions formulated aforesaid.

Accordingly, this case is referred to a Division Bench for appropriate decision.