Sumitra Devi and Another vs The State of Bihar and Others

Radha Mohan Prasad, J.—The prayer in the writ petition is to quash Annexure-9 and to issue writ of mandamus commanding Respondents to give appointment to the Petitioner No. 2 on compassionate ground in terms of Government Circular (Annexure-1).

The Petitioners claim to be the wife and son of the government servant late Jagat Bahadur, who died in harness on 24.12.82. The Petitioners being dependants of the deceased Government servant claimed appointment on compassionate ground in the light of the government circular contained in letter No. 12754 dated 12.7.1977 issued by the Personnel and Administrative Reforms Department (Annexure-1). However, the claim was rejected vide letter No. 3222 dated 26.8.94 issued by the Under Secretary, Water Resources Department, State of Bihar (Annexure-9) solely on the ground that they were citizens of Nepal, for whom there is no provision for giving appointment to the dependant of the deceased government servant on compassionate ground.

The learned Counsel for the Petitioners submitted that the aforementioned Government circular (Annexure-1) does not differentiate between a citizen of this country and a non-citizen. According to the learned Counsel, under Annexure-1 the case of any one member of the family of the deceased government servant is to be considered for appointment on the post of class III and IV on compassionate ground. The conditions for consideration as laid down are that the financial condition of the family of the government servant is not good and that none in the family is in a condition to extend support for ordinary living and sustenance of the family. The other condition is that such member of the family must fulfill the requisite qualification for the post and is within the prescribed age limit, which, under special circumstance, can be relaxed in the exercise of the power under Rule 54 of the Bihar Service Code. Further, such member of the family has been exempted from getting himself registered in Employment Exchange for such appointment and the decision in regard to it solely vests in the appointing authority. Ordinarily the claim for such appointment is available only for two years of the death of the deceased government servant to a member of his family, which means his wife, son and unmarried daughter.

The learned Counsel submitted that the Petitioner No. 2 fulfilled all the criteria mentioned in the circular contained in Annexure-1 and thus, filed application for appointment on compassionate ground after the death of his deceased father in harness. Yet his claim has been arbitrarily rejected solely on the ground that he is a citizen of Nepal to whom the provision relating to appointment on compassionate ground is not applicable and the impugned order thus, violated the provision of the Government''s decision contained ini Annexure-1 as well as the fundamental right guaranteed in Articles 14 and 16(1), 5 of the Constitution of India.

The learned G.P. 9 appearing for the State and its officers Respondents, on the other hand, submitted that the Petitioners not being the citizens of this country cannot claim any relief on basis of the circular, contained in Annexure-1. It was further submitted by the learned G.P. 9 that the Petitioners cannot complain violation of equality clause enshrined in Articles 14 and 16 of the Constitution of India, as the said provisions apply to the citizens of this country and not to non-citizens. The last contention of the learned G.P. 9 does not have any substance to support the rejection the claim of the Petitioners by the responds dents. The circular contained in Annexure-1 does not differentiate between the family members of a deceased government servant, whether an Indian citizen or non citizen for seeking appointment on compassionate ground. It only provides that after the death of the government servant any one member of his family shall get preference in the matter of appointment on compassionate ground in class III and class IV post of the State on fulfillment of other conditions, referred to above. It is not in dispute that late Jagat Bahadur was in the State Government service and that'' the Petitioners are members of his family. It is neither disputed that Petitioner No. 2 did not fulfill all the conditions laid down in Annexure-1. It is true that Article 16 is available only to the citizens of this'' country, but Article 14 of the Constitution provides that the State shall not deny to any person equality before the law or equal protection of law within the territory of India.

The Supreme Court in the case of C.A. Rajendran Vs. Union of India (UOI) and Others, held that Articles 14, 15 and 16 form part of the same constitutional code of guarantees and supplement each other. In other words, Article 16 of the Constitution is only an instance of the application of General rule of equality laid down in Article 14 and it should be construed as such. The Supreme Court in the case of Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, held that Article 16 is species of Article 14, the requirement of non-arbitrariness and fairness enters in both. Thus, in my opinion, it is to be held that in the matter relating to employment is also embodied in Article 14 of the Constitution and must include all matters in relation to employment both prior and subsequent to the employment which are incidental to the employment and form part of terms and conditions of such employment. The equality clause contained in Article 14 requires that all persons subjected to any legislation should be treated alike under like circumstances and conditions. What Article 14 strikes at is arbitrariness, because an action that is arbitrary, must necessarily involve negation of equality. Wherever there is arbitrariness in State''s action whether it be of the Legislature or of the Executive or of an authority under Article 12, Article 14 immediately springs into action and strike down such action, as has been held by the apex Court in the case of Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, . The magnitude of the guarantee in Article 14 of the Constitution has been highlighted by the Supreme Court in series of judgments and a recent one being in the case of LIC of India and Another Vs. Consumer Education and Research center and Others, , in which the said question has been further highlighted.

The action of the Respondents in refusing appointment on compassionate ground to the Petitioner on the above mentioned sole ground, thus, is wholly arbitrary. By now it is well established law that every form of arbitrariness or irrationality is anathema in our constitutional scheme and that it is now a basic requirement of Article 14 that the exercise of discretion must always be guided by some standard or norms, so that it does not degenerate into arbitrariness and operates unequally on persons similarly situate. Article 14 applies to any person and is not limited like some other Articles in Part III to citizens. The Supreme Court in the case of Gazula Dasaratha Rama Rao Vs. The State of Andhra Pradesh and Others, at p. 569 held as follows:

Article 14 enshrines the fundaments right of equality before the law or the equal protection of the laws within the territory of India. It is available to all, irrespective of whether the person claiming it is a citizen or not....

In the instant case the object under Annexure-1 is to grant sustenance to the family of the deceased government servant and not to give any such benefit only to the citizens of this country. Thus, in my opinion, the dependants of the government servant dying in harness will be persons similarly situate irrespective of their citizenship. The learned Counsel for the State has not brought any law to my notice whereby and where under non-citizens have been placed in a separate class for grant of benefit of appointment on compassionate ground under Annexure-1. There cannot be any dispute that the State can frame law putting the citizens and non-citizens in a separate class on the basis of a reasonable and rational classification. But it absence of any such law the action of the State in treating them differently, in my opinion, violates Article 14 of the Constitution of India.

Under such circumstance, the impugned order cannot be sustained and it is accordingly quashed. The Respondents are directed to consider the case of the Petitioners for appointment on compassionate ground in the light of the aforementioned government circular contained in Annexure-1 within three months of the receipt/production of a copy of this order/judgment.

In the result, the writ application succeeds, but in the peculiar facts and circumstances there shall be no order as to costs.