Sukhnandan Ram Rajwade vs The State of Chhattisgarh and Others

Prashant Kumar Mishra, J.—Challenge in this petition under Article 226 of the Constitution of India is to the impugned memo dated 4-6-2011 (Annexure - P/1) whereby the Deputy Director, Panchayat & Social Welfare, Sarguja, has informed the petitioner about the rejection of his prayer for grant of compassionate appointment.

Facts of the case, as projected by the petitioner, briefly stated, are that the petitioner''s father late Shri Salikram Rajwade was working as Assistant Gram Panchayat Officer (Gram Sahayak) at Gram Panchayat Bhafauli, Janpad Panchayat Ambikapur. He died in harness on 31-3-2009 at village Kanchanpur leaving behind his widow and two sons, including the petitioner. The petitioner has averred that co-incidentally 31-3-2009 was the date of superannuation of his father, therefore, since he died in course of service, the petitioner moved an application for compassionate appointment on 5-8-2009 (sic 5-3-2009 mentioned in para 8.4), which was not entertained on the ground that the petitioner has not submitted the succession certificate.

The petitioner, thereafter, obtained the succession certificate on 28-8-2009 and produced the same before the competent authority. It is stated that after intense effort and compliance of other formalities by the petitioner, the application was eventually completed in all respects, however, vide the impugned memo dated 4-6-2011 he was not considered eligible for compassionate appointment on the ground that his father having died on 1-4-2009, therefore, his father was not in service on the date of his death.

It is argued by the learned counsel appearing for the petitioner that the petitioner''s father had, in fact, died on 31-3-2009 for which death certificate was issued by the competent authority on 2-4-2009 (Annexure - P/5), therefore, it was incorrect on the part of the Deputy Director to state in the impugned order that the father of the petitioner died on 1-4-2009. It is also argued that another death certificate was issued on the same date certifying the date of death as 1-4-2009 vide Annexure - R/1. The said certificate was wrongly issued for which the petitioner made a request, therefore, the second correct death certificate was issued vide Annexure - P/5. Thus, it is argued that once a corrected certificate is issued the same will hold the field and the Deputy Director, Panchayat & Social Welfare, ought to have accepted the said certificate and allowed the petitioner''s prayer for grant of compassionate appointment.

Per contra, learned counsel appearing for the State would submit that the first death certificate was issued bearing S. No. 04 (Annexure - R/1), which was never cancelled and the second death certificate bearing S. No. 05 (Annexure - P/5) was issued without following the procedure prescribed under the Registration of Births and Deaths Act, 1969 (for short ''the Act, 1969'') and the Rules framed thereunder namely; Chhattisgarh Registration of Births and Deaths Rules 2001 (for short ''the Rules, 2001''). In addition, he would submit that the petitioner''s brother namely; Ramjeet Ram having already employed as Peon in the Tribal Welfare Department, the petitioner is not entitled for consideration of his case for compassionate appointment in view of specific bar in the circular governing the subject.

Before proceeding to consider the question about the exact date of death of petitioner''s father, this Court would take up the issue of petitioner''s eligibility vis-�-vis his brother being employed as a Government servant. In this regard para 3(8) of the circular dated 10-6-2003 needs reference, which is reproduced hereunder:

Bare reading of the above quoted provision make it explicit that when one member of the family is already employed, no other member of the family is entitled for grant of compassionate appointment. The fact that petitioner''s brother is already employed as a Peon is duly established by the certificate Annexure - R/3 issued by the Head Master of Tribal Middle School, Gangri, Block Ambikapur, wherein it has been certified that petitioner''s brother is in regular service as Peon in the said school from 21-10-2008 onwards. Thus, petitioner''s brother being already employed as a regular Government servant, petitioner was not entitled for consideration of his name.

At this juncture, learned counsel for the petitioner has argued that the petitioner''s ineligibility vis-�-vis his brother being already employed is not a ground mentioned in the impugned memo for rejection of his candidature, therefore, the same cannot be considered.

True it is that this fact is not mentioned in the impugned memo, but at the same time it is the duty of the writ Court to examine the issue so as to be satisfied before issuing any writ that the person approaching the Court is entitled for some benefit in accordance with law. If for any reason the petitioner is not eligible in law for consideration of his name for compassionate appointment, this Court, despite being made aware of his ineligibility, would not issue a writ, which would run contrary to the provisions contained in law. It is the settled law that no mandamus can be issued either to refrain from enforcing the law or to act contrary to the law. (See: S State of West Bengal Vs. Subhas Kumar Chatterjee and Others, & State of U. P. and others Vs. Harish Chandra and others, ).

In the above context, it is also to be seen that the present is not a case where a pre-existing right is taken away by the Government on some specific ground or default committed by the petitioner. In such a case fresh ground for such denial of any right cannot be added in the return, which is not mentioned in the impugned memo.

The decision of the Supreme Court rendered in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, , has no application in the facts situation of the present case.

Another issue agitated before the Court by the learned counsel for the State is about the date of death of petitioner''s father.

Annexure - R/1 is the first death certificate issued on 2-4-2009 in respect of death of petitioner''s father certifying that he died on 1-4-2009. This certificate was issued to Ramjeet Ram, petitioner''s brother, as it was he who submitted the information before the Registrar, Birth & Death. The document Annexure - RJ/2 is the requisite form maintained under the Act, 1969 and the Rules, 2001 framed thereunder, wherein the date of death is clearly mentioned as 1-4-2009. This information and entries were subsequently cancelled and another certificate was issued vide Annexure - P/5 mentioning the date of death as 31-3-2009. This certificate was also issued on 2-4-2009, however, the S. No. of this certificate is 05 (Annexure - P/5) whereas the S. No. of the earlier certificate is 04 (Annexure - R/1).

Section 11 of the Act, 1969 makes it obligatory for the informant to sign the register, when his oral information is maintained/entered by the Registrar in the register; whereas Section 12 makes it obligatory for the Registrar to supply extract of registration entries to be given to the informant.

Section 15 of the Act, 1969 with which this Court is presently concerned provides for correction or cancellation of entry in the register of births and deaths. It is quoted below for ready reference:

Correction or cancellation of entry in the register of births and deaths.-If it is proved to the satisfaction of the Registrar that any entry of a birth or death in any register kept by him under this Act is erroneous in form or substance, or has been fraudulently or improperly made, he may, subject to such rules as may be made by the State Government with respect to the conditions on which and the circumstances in which such entries may be corrected or cancelled, correct the error or cancel the entry by suitable entry in the margin, without any alternation of the original entry, and shall sign the marginal entry and add thereto the date of the correction or cancellation.

Rule 11 of the Rules, 2001 prescribes procedure for correction or cancellation of entry in the register of births and deaths. It is reproduced as under:

Correction or cancellation of entry in the register of births and deaths-

If it is reported to the Registrar that a clerical or formal error has been made in the register or if such error is otherwise noticed by him and if the register is in his possession, the Registrar shall enquire into the matter and if he is satisfied that any such error has been made, he shall correct the error (by correcting or cancelling the entry) as provided in Section 15 and shall send an extract of the entry showing the error and how it has been corrected to the State Government or the officer specified by it in this behalf.

In the case referred to in sub-rule (1) if the register is not in his possession, the Registrar shall make a report to the State Government or the officer authorised by it in this behalf and call for the relevant register and after enquiring into the matter, if he is satisfied that any such error has been made, make the necessary correction.

Any such correction as mentioned in sub-rule (2) shall be countersigned by the State Government or the officer authorised by it in this behalf when the register is received from the Registrar.

If any person asserts that any entry in the register of births and deaths is erroneous in substance, the Registrar may correct the entry in the manner prescribed under Section 15 upon production by that person a declaration setting forth the nature of the error and true facts of the case made by two credible persons having knowledge of the facts of the case.

Notwithstanding anything contained in sub-rule (1) and sub-rule (4) the Registrar shall make report if any correction of the kind referred to therein giving necessary details to the State Government or the officer authorised in this behalf.

If it is proved to the satisfaction of the Registrar that any entry in the register of births and deaths has been fraudulently or improperly made, he shall make a report giving necessary details to the office authorised by the Chief Registrar by general or special order in this behalf under Section 25 and on hearing from him take necessary action in the matter.

In every case in which an entry is corrected or cancelled under this rule, intimation thereof should be sent to the permanent address of the person who has given information under Section 8 or Section 9 .

Rule 11 quoted above provides for procedure for correction in two different situations. The first where there is a clerical error or formal error and the second where the error is substantial. The present is a case of error of substantial nature because the very date of death is changed in the subsequent death certificate. For correction of any such error, which is substantial in nature sub-rule (4) of Rule 11 makes it mandatory for the person seeking such correction to produce a declaration setting forth the nature of the error and true facts of the case made by two credible persons having knowledge of the facts of the case. Whenever such correction is made by the Registrar, it is his duty to report the same to the State Government or the officer authorized in this behalf. Whenever such correction or cancellation is made intimation thereof is required to be sent to the permanent address of the person who has given information at the first instance under Section 8 or Section 9 .

The above position in the Rules, 2001 concerning the procedure for correction in formal or substance provides for an enquiry by the Registrar before making any correction in substance. The documents placed before the Court do not suggest that before cancelling the earlier death registration any notice was issued to the petitioner''s brother who had informed the Registrar about the fact that his father died on 1-4-2009. A similar document like Annexure - RJ/2 (second page) has not been produced by the petitioner. It appears, the first death certificate bearing S. No. 04 (Annexure - R/1) was obtained by the petitioner''s brother whereas the second death certificate bearing S. No. 05 (Annexure - P/5) was obtained by the petitioner himself. It further appears the procedure prescribed under Rule 11 of the Rules, 2001 has not been followed before issuance of the second death certificate, therefore, it will not be safe to rely on the second death certificate bearing S. No. 05 (Annexure - P/5). At this juncture, it will be profitable to reiterate the settled legal position that a thing required to be done in a particular manner has to be performed in that manner only (See: the decision of Supreme Court in Meera Sahni Vs. Lt. Governor of Delhi and Others, and the decision of this Court in G.R. Ansari vs. State of Chhatisgarh and others WP(S) No. 2805 of 2015 (decided on 05.08.2015)

For the above-stated reasons, particularly for the reason that the petitioner''s brother is already employed as Peon, the petitioner is not entitled for compassionate appointment. (See: the decisions of the Supreme Court in State of H.P. And Others v. Rajesh Kumar (2001) 9 SCC 174 and Sail and Another Vs. Awadhesh Singh and Others, and the decisions of this Court in Smt. Subhadra Jha v. State of Chhattisgarh & Another WPS No. 3088 of 2015 (Decided on 15-9-2015)).

In the result, the writ petition, being devoid of merit, is liable to be and is hereby dismissed. No order as to costs.