Navjeewan Kumar vs The State of Bihar and Others

Rakesh Kumar, J.—Heard Sri (Dr.) Sanjay Kumar Singh, learned counsel for the petitioner and Sri Pramod Kumar, learned AC to GA-8.

In the present writ petition filed under Article-226 of the Constitution of India, the petitioner has made a prayer for the following reliefs:

(I) To quash the decision of the District Compassionate Committee, Madhepura by which the application of the petitioner for his appointment on compassionate ground upon death of his mother Sudha Devi who died in harness, has been rejected and communicated to him vide letter dated 22.06.2010 issued under signature of Additional Collector, Madhepura as contained in Annexure-5 to the writ application.

"(II) To hold that the petitioner does not come within the purview of Section 01 (Anga) of the Circular dated 5.10.1991 issued by Personnel and Administrative Reforms Department, Govt. of Bihar in the facts and circumstances of the case as mother of the petitioner Late Sudha Devi was living with the petitioner separately from her husband and other two sons after family partition and therefore the petitioner is entitled to get appointment on compassionate ground.

(III) To hold that the action of the respondents for rejecting the claim of the petitioner is illegal and arbitrary and consequently direct the respondents to consider the application of the petitioner for appointment on compassionate ground."

By the said communication i.e. Annexure-5 to the writ petition, the petitioner was informed regarding decision taken by the District Compassionate Appointment Committee, in which the claim of the petitioner for being appointed on compassionate ground was not found in consonance with the Government instruction dated 05.10.1991.

The case of the petitioner is that his mother was Headmistress in Kanya Primary School, Murlichandwa within Uda Kishunganj Block in the district of Madhepura. While the mother of the petitioner was in service, she died in harness on 21.10.2002. After her death, the petitioner applied in the year 2003 for being appointed on compassionate ground. It has been pleaded that the name of the petitioner was forwarded by the Block Education Extension Officer to the District Superintendent of Education, Madhepura vide its letter dated 16.02.2004 along with form submitted by the petitioner and other relevant documents. However, no decision was taken in respect of appointment of the petitioner for a long time. Finally, in the month of May, 2010 he filed an application before the Hon''ble Minister, Revenue and Land Reforms Department, Govt. of Bihar, Patna for redressal of his grievance, which was subsequently forwarded to the Hon''ble Minister, Human Resources Development Department, Govt. of Bihar. The Hon''ble Minister, Human Resources Development Department, Govt. of Bihar vide its letter dated 14.05.2010 directed the District Collector, Madhepura for taking decision on the petition of the petitioner immediately. Only thereafter, in the month of July, the petitioner received the impugned communication i.e. letter dated 22.06.2010 i.e. Annexure-5 to the writ petition, whereby the petitioner was intimated that his request for appointment on compassionate ground was rejected by the District Compassionate Appointment Committee. Thereafter, the petitioner approached this Court by filing the present writ petition.

Learned counsel for the petitioner has assailed the impugned order on the ground that the petitioner was living separately with his mother, who had already separated with her husband, a government employee. It has been argued that since the mother of the petitioner was living separately with her husband, who was also a government employee, the case of the petitioner for being appointed on compassionate ground was not required to be rejected in terms of provision contained in Government Circular, contained in Memo dated 05.10.1991. To substantiate his submission, learned counsel for the petitioner has placed reliance on a Judgment of the Apex Court reported in Union of India (UOI) and Others Vs. Smt. Draupadi Behara and Another, He has specifically placed reliance on paragraph-7 of the said Judgment. He has also relied on a Division Bench Judgment of this Court reported in Anil Kumar Vs. State of Bihar and Others, . He submits that while the case of the petitioner was recommended by the Block Education Extension Officer, it was clarified that his mother was living separately from her husband and the petitioner was living with her mother separately. Learned counsel for the petitioner has also placed reliance on Annexure-3 to the writ petition to substantiate that the petitioner was living separately from his father and other two brothers and he was living with his mother, who died while in service. On the aforesaid ground, the petitioner has prayed for quashing the impugned order and has prayed for directing the Respondents to re-consider the application of the petitioner for appointment on compassionate ground.

Sri Pramod Kumar, learned AC to GA-8 opposing the prayer of the petitioner submits that the claim of the petitioner''s appointment on compassionate ground was rejected long back in the year 2007 by the District Compassionate Appointment Committee. However, the petitioner has approached this Court in the year 2011. By way of referring to the averments made in the counter affidavit, learned counsel for the State submits that the mother of the petitioner was not a divorcee lady and it is a fact that father of the petitioner was in active government service. He has also placed reliance on Government instruction (Annexure-A to the counter affidavit) issued in the year 1991, which prescribes for appointment on compassionate ground. He has specifically referred to Clause 1, sub-clause (Anga). He submits that as per instruction, if the husband and wife both were in government service, in case of death of anyone, no dependent of such family can be appointed on compassionate ground. Accordingly, he submits that the writ petition is fit to be rejected.

Besides hearing learned counsel for the parties, I have also perused the materials available on record. Fact remains that the mother of the petitioner died long back on 21.10.2002 while she was in government service. It is also not in dispute that the father of the petitioner was also in government service. However, a plea has been taken that the mother of the petitioner was living separately. In support of such separation, save and except Annexure-3 to the writ petition, which was issued from the office of the Circle Officer, no other document has been brought on record to establish as to whether the mother of the petitioner was living separately with her husband on the basis of divorce or any other reason. In the writ petition, the petitioner has brought a copy of application duly signed by the petitioner with his declaration. In paragraph-5 of the said application at page-19 i.e. column of dependant of the deceased employee, the petitioner himself has disclosed name of his other two brothers besides his name, whereas in the writ petition, a specific statement has been made in paragraph-8 of the writ petition, which is quoted herein below:

"8. That when the petitioner came to know about the aforesaid fact he also submitted an application before respondent No. 8 stating therein that his mother Late Sudha Devi was living with him separated from her husband and other 2 sons. He had also annexed 1. Death Certificate of his mother Sudha Devi and 2. a certificate dated 1.3.2007 issued by Circle Officer Udakishunganj, Madhepura with regard to that presently no member of his family is in govt. service."

The aforesaid statement makes it clear that on oath the petitioner has stated that his mother was living only with the petitioner and she was separated with her two sons and her husband. Accordingly, the petitioner at different places had taken different stand, which is in contradiction with each other. Moreover, the appointment on compassionate ground is to be done in view of policy decision of the State Government through a duly constituted District Compassionate Committee. The case of the petitioner was turned down by the Committee in the year 2007. However, the petitioner for the first time in the year 2010 started to make representation before the Hon''ble Minister and, thereafter in the year 2010 itself, the petitioner was intimated regarding rejection of claim of the petitioner by the District Compassionate Appointment Committee.

The Court is of the considered opinion that the appointment on compassionate ground is an exception to Article 14 and 16 of the Constitution of India. By carving out such exception, the State of Bihar has come out with a resolution in the year 1991, which prescribes mode for such appointment. The Court proposes to incorporate the instruction of the State Government issued on 5th October, 1991, which is as follows:

On perusal of Clause 1, sub-clause (Anga), the claim for appointment on compassionate ground by any of the dependent may not be entertained. It is admitted fact that the mother and father of the petitioner, both were in government job, of course, a plea was taken regarding separation. Since there is specific instruction, which excludes such dependent from being appointment, there is no question of entertaining any application of any of the dependents in such situation. So far as Judgment reported in Union of India (UOI) and Others Vs. Smt. Draupadi Behara and Another, is concerned, in the said case, no relief was granted, rather the Apex Court had not specifically approved the decision of the concerned government, wherein it was indicated to place reliance on certificate issued by the Member of Parliament etc. to show separation in the resolution of the State Government. There is no such exception and, as such, there was no question to place reliance on certificate issued from the office of the Circle Officer to show separation in between the father and mother of the petitioner. So far as Anil Kumar''s case (supra) is concerned, the Court is of the opinion that in the said case Clause 1 (Anga) of the Government Resolution, 1991 was not taken note of and, as such, the petitioner may not get any benefit from the said Judgment. Moreover, the appointment of compassionate ground is to be provided for giving immediate financial assistance to the family of the deceased employee.

In this case, death of the mother of the petitioner, who was in government service, had occurred in the year 2002, the case of the petitioner for appointment on compassionate ground was turned down by the District Compassionate Appointment Committee in the year 2007 and the present writ petition was filed in the year 2011, so in such situation it would not be appropriate to consider to extend the benefit of compassionate appointment, which would be against the basic principle of compassionate appointment.

I do not find any ground to interfere. The writ petition stands dismissed.