Umeshwar Dayal Singh vs The State of Bihar and Others

Ravi S. Dhavan, C.J.—This letters patent appeal has been filed to challenge the order dated 4 March, 2003 in CWJC No. 1843 of 2003, Umeshwar Dayal Singh v. The State of Bihar and Ors. The order is reproduced :

"The petitioner seeks direction for his compassionate appointment on the death of his mother in harness. The claim has been rejected twice on the ground that the petitioner''s father too is in Government employment and thus in view of the relevant clause of circular No. 11293 dated 5-10-1991 he is not eligible for compassionate appointment.

It is submitted on behalf of the petitioner that the parents of the petitioner separated in 1990 itself whereafter the father stopped maintaining the petitioner. This fact was verified in the inquiry. Reference was made to Annexure-3, which is copy of letter of the Anchal Adhikari, Durgawati dated 25-3-2000 before the Establishment Deputy Collector Kaimur, Bhabhua. It states that the petitioner''s mother Kamla Devi separated from her husband. It does not state that the petitioner ceased to be dependent of the father. In the circumstances, I am unable to place much reliance on the said inquiry report. Admittedly, the father of the petitioner is in Government employment and, therefore, in terms of circular dated 5-10-1991 he is not eligible for compassionate appointment.

The petitioner stands dismissed."

The main thrust of the argument is not so much in the order as is in the anomalies being pointed out and the manner in which the State of Bihar resorts to making appointments, as compassionate appointments under the so-called rule of harness and leaves much to be explained as the decisions taken administratively are not in conformity with its policy which has been laid down.

The contention of learned Counsel for the appellant Mr. Rajendra Pd. Singh, Sr. Advocate, is that it leaves one person who may have litigated with a feeling that he has not received equal treatment.

After examining the entire record of the writ petition, the present letters patent appeal as also the submissions made by Counsel of the petitioner, this Court is of the view that in the decisions taken by the State respondents, there is a total contradiction of its own policy. At the slightest opportunity, the State respondents appear to have bended the rules to suit their convenience and this gives rise to a spate of litigations at the High Court. Of employments as compassionate appointments, the Patna High Court faces an onslaught of litigation being dealt with as a special category.

The decisions which have been taken by the State respondents are not only against the policy of the Government but in total contradiction to certain Supreme Court decisions and making a mockery of the State policy and judicial decisions, both.

The issue is not so much whether the petitioner-appellant has been denied employment as a compassionate appointment or for that matter a particular person should not receive appointment. In between these two cases, there may lie errors and a situation which does not inspire public confidence on the inconsistency of approach on the policy as has been laid down.

Coming straight to the point, in the context of the present matter, the policy is in the Government order known as Memo No. 3/C 2-2067/90 Ka 13293 dated 5 October, 1991. Many cases appear to be coming from time to time with an aberration within the administration and not adhering to the Government order. It is reproduced:

9- fcgkj ljdkj dkfeZd ,oa iz''kklfud lq/kkj foHkkx Kki la[;k & 3@lh&2&2067@90 dk- 13293 fnukad 5 vDrwcj 1991 esa] ljdkj ds lHkh foHkkxh; lfpr @ lHkh foHkkxk/;{k @ lHkh ize.Myh; vk;qDr@lHkh ftyk inkf/kdkjhA

fo"k;% lsok esa e`r ljdkjh lsodksa ds vkfJrksa dks oxZ 3 ,oa oxZ 4 ds inksa ij vuqdEik ds vk/kkj ij fu;qfDr dh izf�;kA

funsZ''kkuqlkj dguk gS fd vc rd lsok&dky esa fdlh ljdkjh lsoc dh e`R;q gksus ij e`r ljdkjh lsod ds vkfJr dks oxZ 3 oxZ 4 ds inksa ij fu;qfDr gsrq dkfeZd ,oa iz''kklfud lq/kkj foHkkx }+kjk fuxZr lHkh vuqns''kksa dks vo�fer djrs gq, ljdkj us ;g fu.kZ; fy;k gS fd vuqdEik ds vk/kkj ij fu;qfDr dh izf�;kvksa dks bl izdkj ljy ,oia izHkkodkjh cu;k tk; 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 mnns''; ls ljdkj us fuEukafdr fu.kZ; fy;k gS%

�1� fdudk p;u gks ldrk gSA

�d� vuqdEik vk/kkj ij fu;qfDr dk ykHk oSls e`r ljdkjh lsod ds ,d gh vkfJr dks vuqekU; gksxk ftudh e`R; lsokdky esa gqbZ gksA

�[k� bl gsrq ljdkjh lsod mls gh ekuk tk;sxk ftldh fu;qfDr] Lohd`r in ds fo:� fof/kor dh xbZ gksA

�x� lsok dky esa e`r ljdkjh lsodksa ds vkfJrksa dh vuqdEik ds vk/kkj ij fu;qfDr dh tk ldrh gS vkfJr ds vUrxZr dsoy iRuh] iq=] vfookfgr iq=h rFkk iq= dh fo/kok iRuh lfEefyr jgsxhA nRrd iq=] nkekn] Hkrhtk vkfn dks vkfJr ugha ekuk tk;sxkA

�?k� vuqdEik ds vk/kkj ij fuEufyf[kr izkFkfedrk ds vuqlkj fdlh vkfJr dh fu;qfDr dh tk;sxhA

1- e`r lsod dh iRuh

2- iq=

3- vfookfgr iq=h

4- iq= dh fo/kok iRuh

�M� ;fn ifr&iRuh nksuksa 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

One thing needs to be remembered that the Supreme Court decisions Director of Education (Secondary) and Another Vs. Pushpendra Kumar and Others, , or for that matter Umesh Kumar Nagpal Vs. State of Haryana and Others, , are clear cut binding guidance/in the context, that should a person in Government service die in harness leaving his family in penury, then gainful employment may be provided to one of the dependents. Further, the Supreme Court has also laid down that employment known as employment on compassionate grounds is an exception to the normal modes of providing employment and there ought to be care that an exception must not become a generality to destroy the normal modes on which the State recruits and employs into public service. Both these rules have been violated by the State administration with impunity. This has led to litigations.

In the present case, the parents of the petitioner-appellant were in State employment. But this situation is explained away that as soon as the petitioner-appellant gained majority he could hold an appointment as his parents separated in 1990. For the first time the record is generated that the father and the mother may not be living together. In the circumstances, separating one parent from another and tailoring a situation that only one member was on a job do not make the petitioner-appellant eligible.

Further, it is brought to the notice of the Court that there is another matter in which one Sunil Kumar has received employment whose case was rejected earlier and between acceptance on a repeat consideration and the rejection of the petitioner-appellant''s case by the same District Committee is not equality. Two illegalities do not give a right to claim equality under the Constitution.

The only relevant question is how other cases are to be dealt with when dealing with matters of compassionate appointments. The Court finds from the circular which are there that the State administration is merrily carrying on the administration without applying its mind to its own policy. There is no legislation. In this regard, as the situation warrants the State conveniently bends its Government orders to suit the situation from one district to another and renders contradictions within the same district and between the same people who are under consideration by the same District Committee.

In the other case in one family four people were gainfully employed. Subsequently, the cases were rejected. When the incumbents filed a writ petition, all that happened was that the State had to apply its mind whether a situation of penury exists. Throwing all principles to the winds and virtually tailoring the Government order and putting it in the waste basket with four persons in the family, father, mother and two brothers in the Government service, the State administration contradicted the Government orders and gave employment to five persons in the same family. It is ridiculous and makes a mockery of any policy of the State by providing a job on compassionate appointment. This sort of appointment is only an exception to general employment.

In so far as the petitioner-appellant''s case is concerned, it is accepted that the father and the mother are both in employment. It is the claim of the petitioner-appellant that the parents separated in 1990. This is a plea of convenience being made by a son to get a job. The Government policy in the Memo No. 3/C 2-2067/90 Ka 13293 dated 5 October 1991 and the Supreme Court decisions clearly mention that only one person can get a job. If this exception is not based on the guiding policy which the State has then clearly what will happen is that such an employment will become a Zamindari of its own kind for the wards of Government Servants.

Dismissed.

Let a copy of this order be sent to the Chief Secretary, Government of Bihar, the Law Secretary, Government of Bihar, and the Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna.