Anil Kumar Singh v. State Of Bihar — 1992 DIGILAW 367 (PAT)

Judgment S. B. Sinha, J. 1. Interpretation of various circular letters relating to appointment of the dependants of the employees who had died in harness is involved in all these writ applications. 2. The fact of the matters lies in a very narrow compass. 3. It is not disputed that the State of Bihar has adopted a policy decision to give preference for appointment in Class III and Class IV posts to the dependants of an employee who has died in harness. 4. The preamble of the Circular issued by the State of Bihar in this regard being Letter No.12754, dated 12-7-77 states that owing to premature death of an employee whose dependant family members some times face financial crisis at that time and, thus, the question of grant of some assistance to the members of the braved family at the time of distress was under consideration of the State for some time past and it has been decided that any of the dependants of the deceased would be given preference in employment in Class III and Class IV posts wherein the recommendations of the Bihar Public Service Commission is not necessary. 5. [***] 6. However, it appears that the Personnel Department of the State of Bihar issued another circular bearing No.6644, dated 17-5-80 whereby the time limit of two years granted for filing an application for appointment in terms of the circular letter bearing No.12754, dated 12-7-77, was made effective in a case where the Government employee died on or after 12-7-75. In that circular it was further directed that appointments on compassionate ground has to be made in terms of the procedures prescri. bed therefor and the application for appointment has also to be filed in a prescribed form. It was further provided therein that the candidates must give a declaration to the effect that in the event any of the informations furnished by him/her is found to be incorrect or false, his/her services would immediately be terminated apart from other actions that may be taken against him. 7. By another circular letter bearing No.1269, dated 13-6-81 it was provided that in the event the matter relating to appointment on compassionate ground is pending consideration, a post for him may be kept resserved and his case may be sent to the appropriate authorities with requisite recommendations. 8. 7. By another circular letter bearing No.1269, dated 13-6-81 it was provided that in the event the matter relating to appointment on compassionate ground is pending consideration, a post for him may be kept resserved and his case may be sent to the appropriate authorities with requisite recommendations. 8. Yet another circular letter bearing No.4211, dated 12-4-84 was issued in terms whereof certain other amendments were made in the circular letter No.12754 dated 12-7-77. By reason of the said letter the pre-condition to take prior approval of the Personnel land Administrative Department was withdrawn By reason of the said letter, it was further directed that the appointment on compassionate ground may be made by a three man committee in terms of the directions issued by the Personnel and Administrative Department. It was further provided that the letter of appointment is to be issued by the Commissioner-cum-Secretary of the concerned departments and such power would not be delegated to any of his subordinates. 9. Certain other directions have also been made by the State by circular letter bearing No.11946, dated 30-11-84 in the matter of appointment of compassionate ground. 10. The Personnel and Administrative Department of the State of bihar, thereafter, issued another circular letter bearing No.6817, dated 25-5-89 wherein it was pointed out that a demand had been raised by the bihar State Non-gazetted Employees Fedration and Teachers Employees officers Co-ordination Committee to the effect that the time limit of two years for filing application for appointment on compassionate ground be extended to five years. Pursuant to the aforementioned demand, an agreement was entered into by and between the State and the Co-ordination committee in terms of the negotiations held on 19-1-88 and 20-11-88 as a result whereof it was agreed to amend clause 4 of the circular letter no.12754, dated 12-7-77, the translated version whereof reads as follows :- "the time limit for filing an application by the dependants of a deceased Government servant for appointment on compassionate ground would be five years from the date of death of the Government servant and the said time limit shall not be extended. " In that circular letter it has further been specifically mentioned that in the light of the said decision, no proposal should be sent to the Personnel and administrative Department for relaxation of time as the said time limit shall not be extended beyond five years under any circumstances whatsover. 11. The State of Bihar, thereafter, issued another circular letter bearing No.3293, dated 15-10-1991 whereby detailed procedure relating to appointment on compassionate ground has been laid down. In terms of the said circular the bar of time limit for filing application for appointment has been withdrawn. 12. Clauses 3 and 10 of the said circular read thus :- "abedan done ki koi sima nahi hogi. Lekin niyukti hetu adhiktam umra sima ki ahararta ka karai se palan kiya jayega. " is paripatra ke pravdan nirgat hone ki tithi se prabhawi honge. Purb me hui mritiu ke mamlo par is paripatra ke pravdhano ke adhar par bichar/punarbichar) nahi kiya ja sakega. " 13 In most of the writ application, the applications for appointment on compassionate ground have been rejected either on the ground that the same was filed after the expiry of the period of limitation prescribed therefor and/or on the ground that at the relevant time the dependant of the deceased employee was a minor. 14. The learned counsels appearing on behalf of the petitioners submitted that the policy decision adopted by the State of Bihar being beneficient in nature, the same should receive liberal construction. 15. It has further been submitted that the policy decisions of the state to provide employment to the dependant of an employee were adopted for the purpose of grant of immediate relief to the family in distress and if any time limit is fixed for filing such application or if the minors are precluded from obtaining the said benefit, the purpose and object thereof shall be frustrated. 16. The learned counsels further submitted that the orders passed by the respondents rejecting the applications for appointment on compassionate ground must be held to be violative of Articles 14 and 16 of the constitution of India in as much as in a case where an employee died before 1991, the dependants were required to file application within a period of 5 years but no such time limit has been prescribed for dependants of those who died after 15-10-1991. 17. 17. The learned counsels in this connection have placed strong reliance upon the cases in Brajendra Pd. Poddar V/s. State of Bihar and others reported in 1990 Vol.2 PLJR 668; Bijay Kr. Sinha V/s. State of Bihar and, others reported in 1991 Vol.1 PLJR 316 and K. Raja V/s. Karnataka State electricity Board and others reported in 1991 LIC 778. 18. There can not be any doubt that the policy decision adopted by the State to provide employment to one of the dependants of a deceased employee was with a view to grant immediate relief to the family at the time of the distress. However, it is also well known that a beneficient legislation should not be interpreted in such a manner so as to extend the benefit granted beyond the object and purport thereof. It is also necessary to keep in mind the fact that by grant of such appointment, the mandatory provisions of Recruitment Rules as also the provisions of articles 16 of the Constitution of India are being deviated from and, thus, at least to that extent chances of appointment of other persons who were otherwise eligible therefor would be eliminated. 19. In view of the implementation of the reservation policy of the state as also the policy decision of the State to provide employment to other categories of employees i. e. , either to woman or handicapped persons or extension of services to those persons who have been given national award etc. , the chance of appointment of general category of candidates are being decreased day by day, although, they may be more suited for. 20. In Bijay Kr. Sinha V/s. The State of Bihar and others reported in 1991, Volume 1 PLJR 316 the question which arose for consideration was as to whether the circular letters of the State of Bihar whereby provisions have been made to provide employment to one of the dependants of deceased family is ultra vires to the Articles 14 and 16 of the Constitution of India or not. The Division Bench in that ease held that such a policy decision of the State of Bihar are not yiolative to Articles 14 and 16 of the Constitution of India. In that case it was found that the petitioners had not been fulfilling one of the essential qualification for appointment as Teachers in the Elementary Schools in the State of Bihar. 21. In that case it was found that the petitioners had not been fulfilling one of the essential qualification for appointment as Teachers in the Elementary Schools in the State of Bihar. 21. In Susma Gosai V/s. Union of India and others, reported in AIR 1989 sc 1976 , the Supreme Court held as follows :- "we consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointments pernumerary post should be created to accommodate the applicant. " In that case the appellant before the Supreme Court applied for appointment in a L. D. C. post in November, 1982 and at that time she had a right to be appointed on compassionate ground under the existing Government memorandum. However, the plea for appointment on compassionate ground was rejected on the ground that in the year 1985 a ban of appointment on ladies was imposed. 22. In Smt Phoolvati V/s. Union of India reported in AIR 1991 SC 469 , the Supreme Court reiterated the vjews taken in the case of Susma Gosain (Supra ). 23. In Brajendra fd. Poddar V/s. State of Bihar and others reported in 1990 Vol.2, Bihar Law Judgment 318, 1990 Vol.2 PLJR 668, a Division bench of this Court, however, relying upon the decisions of the Supreme court reported in AIR 1987 SC 1010 and AIR 1985 SC 1325 held that in appropriate case the age limit may be relaxed. In that case, the first application for his appointment was made by the petitioner there on 18-3-83 when he was aged 17 years and few months. This was within a period of two years from the date of his fathers death. The said application was turned down because he did not attain the age of 18 years. Another application was filed on 9-4-85 within a period of 5 years. This was within a period of two years from the date of his fathers death. The said application was turned down because he did not attain the age of 18 years. Another application was filed on 9-4-85 within a period of 5 years. The division Bench took into consideration that in some cases in terms of the provision of Bihar Service Code, a relaxation of age can be granted and in that situation it was held : "the situation was beyond the control of the petitioner. But one has to keep in mind the dominant of the object behind such circulars which were issued, from time to time, to facilitate and to benefit such persons in destitute and any technical approach would defeat the very, object behind such appointment on compassionate grounds. Of course, such application must be made bonafide and within a period of two years, but, in a fit and proper case, the relaxation in age has to be suitably considered and the age can be relaxed in order to achieve the very purpose of granting such benefit of service on compassionate grounds-" In that decision U. P. Singh, J. observed : "there are peculiar circumstances in this case. " in that case the application of the petitioner was pending consideration when the circular letter No.6817, dated 25-5-1989 extending the period on compassionate ground from two years to five years was issued and in that special situation, it was held that the petitioners application deserved consideration. 24. It is, therefore, clear that the aforementioned circular are applicable only in the cases of those persons who fall in the low income group and lost their bread earners. The said circulars provide for giving of preference in employment to one of the dependants of the deceased employee subject of course, to the condition that he is otherwise eligible for appointment in Class III and Class IV posts in any service in the state of Bihar. This decision, therefore, does not advance the case of the petitioners. 25. The said circulars provide for giving of preference in employment to one of the dependants of the deceased employee subject of course, to the condition that he is otherwise eligible for appointment in Class III and Class IV posts in any service in the state of Bihar. This decision, therefore, does not advance the case of the petitioners. 25. In K. Raja V/s. Karnataka State Electricity Board and others reported in 1991 LIC 778, has been held as follows .- "the employment of a son of the deceased employee existing on the date of death of such employee can not, on any account or by any imagination be regarded as that which made good or mitigates such loss in as much as there may exist no nexus between the loss suffered by the dependants of the deceased employee on his sudden demise and the earlier appointment of the deceased employees son who, having regard to the present normal conditions of such a family would be outside the family of the deceased employee being an adult with independent employment. Admittedly, there is no express provision in the said Official Memorandum which excludes compassionate appointment to a son of the Boards employee who dies in harness because of his another son being already in employment of the Board. If such was the intention, as is now sought to be made but on behalf of the Board it would not have been difficult for the Board to make such son ineligible for compassionate appointment as has been done with reference to a wife or husband when both of them are in the Boards employment. " The aforementioned instance, therefore, was rendered on the basis of the policy decision of the Karnataka State Electricity Board and, thus, has no application to the facts and circumstances of the case. 26. From the conspectus of the aforesaid decision it is clear that the policy decision adopted by the State of Bihar for employment to the dependants of a deceased Government servant, the following conditions must be fulfilled- (i) "only a dependant within the meaning of the said circulars may be provided, employment subject to the conditions that the family fell within the low income so that it is not in a position to maintain itself. (ii) "atleast one of the dependants of the deceased employee must be eligible for appointment either on the date of death of the deceased employee or within the period when the application for appointment on compassionate ground could be filed in terms of the circular letrer No, 12754, dated 12-7-1977 within two years and in terms of circular letter No.6817, dated 25-5-1989 becomes 5 years. " (iii) from the tenor of the aforementioned circular letters it is evident that the time limit fixed cannot be altered nor any relaxation possible in relation thereto. (iv) although, the provisions for the prescribed time limit has been done away with by reason of 1991 circular, clause 10 thereof specifically provides that the said circular would be applicable only from the date of issuance thereof and in case wherein death has taken prior thereto, the same shall not be considered and/or re-considered. (v) the appointment on compassionate ground must be upon compliance with all the terms and conditions laid down therein. 27. In view of the aforementioned discussions as also the decision of the Supreme Court as noticed hereinbefore, there cannot be any doubt that the observations made in "brajendra Poddars case (Supra), does not lay down any binding precedent. The said decision has to be read in the context of the circulars and in peculiar facts and circumstances of that casa as it had clearly been stated therein that the State in that case was in a position to relax the age of the applicant. 28. It may further be pointed out that in that case at the time of consideration of the matter appointment on compassionate ground, that was pending consideration before the State, the same was not finally rejected when the aforementioned circular letter No.6817, dated 25-5-1989 had been issued. 29. It has further to be borne in mind that by reason of the aforementioned circular letters not only the widow or the son but even the unmarried daughter and widowed daughter-in-law are entitled for consideration for appointment. on compassionate ground. In that view of the matter, even if one of the dependants of the deceased family who is not eligible for appointments keeping in view of the age, the qualification and other considerations, one of the other dependants as mentioned in the said circular may be appointed on compassionate ground. on compassionate ground. In that view of the matter, even if one of the dependants of the deceased family who is not eligible for appointments keeping in view of the age, the qualification and other considerations, one of the other dependants as mentioned in the said circular may be appointed on compassionate ground. It would not be, therefore, correct to say that only because the son was a minor, he could file an application for appointment even after attaining majority. In fact, if such an interpretation is given the same would frustrate the very object and purport of the policy decision of the State in as much as thereby no immediate relief to the family in distress can be provided. If any such application is entertained after a long delay, by that time not only the existing vacancies may be filled up by regular appointment, but also other cases of similar nature may arise where grant of immediate relief by providing employment to the dependant of the deceased employees may crop up. What is material for consideration is the time when the relief is to be granted to a family in distress and not to reserve a job for one of the dependants. 30. It is pertinent to note that in Bijay Kumar Sinhds case reported in 1991 Vol.1 PUR 316, the vires of the circular, dated 12-7-1977 was upheld holding ; "the impugned circular, however, is not a bald preference to the dependants of the employees of the State Government. It has not gone to the descent of the persons preferred for appointment. It has taken notice of a sudden demise resulting in cessation of source which had earned bread for them. It has emphasised that those who fall in an income group below rs.6000/- per year and lost their bread earner should be preferred. It is not a general concession to all the dependants of the deceased employees. It is confined to the selection to one to compensate the, loss by giving employment to him. If one bread earner is there, another is not allowed to enter in the preference. The circular is thus, one which has conferred a preferential right to appointment to the dependants of a deceased employee who died in harness by identifying the economic backwardness and also the loss which unless compensated shall force the family to go further down. If one bread earner is there, another is not allowed to enter in the preference. The circular is thus, one which has conferred a preferential right to appointment to the dependants of a deceased employee who died in harness by identifying the economic backwardness and also the loss which unless compensated shall force the family to go further down. " The object, thus, it may be stated at the cost of repetition is to grant immediate relief and not after a number of years. 31 This aspect of the matter as also the decision of the Supreme court in Susma Gosains case had not been taken note of by this Court in brajendra Pd. Poddar V/s. State of Bihar 1990 Vol.2 PUR 668. 32. The question as to whether the age can be relaxed or not would fall for consideration before the appropriate authorities of the state of Bihar if and when such a prayer is made. The same is neither automatic ndr this Court will use up the functions of the executive. 33. In the-aforementioned backgrounds, the facts of each cases involved in these applications may be considered separately. 34. C. W. J. C. No.7411 of 1992.-In this case petitioners father died on 4th May, 1985, leaving behind his widow and two sons. The petitioner filed an application for his appointment before respondent No.4 in the year 1986. Admittedly, in 1985 the petitioner was only 12 years old and, according to the petitioner himself, his mother was not in a position to accept any job. The petitioner became major on 7th September, 1991. The petitioner passed the Matriculation examination in the year 1990. The petitioner has also not stated whether his other brother was eligible for appointment on compassionate ground at the relevant point of time. Admittedly, the application for appointment on compassionate ground could not have been entertained at a point of time when the petitioner became major. His application for appointment in 1986 was premature as at that point of time he was not eligible therefor. 35. In the facts and circumstances it Is clear that the petitioner was not entitled to be appointed within two years from the date of death of his father and as such his application for appointment on compassionate ground, thus, could not have been considered. 36. 35. In the facts and circumstances it Is clear that the petitioner was not entitled to be appointed within two years from the date of death of his father and as such his application for appointment on compassionate ground, thus, could not have been considered. 36. In terms of the policy decision of the State as contained in Circular letter No.12754, dated 12-7-1977 the widow of the petitioner could have filed an application for appointment on compassionate ground but she did not chose to do it. 37. In this view of the matter, the petitioner is not entitled to any relief. This application C. W. J. C. No.7411 of 1992 is, therefore dismissed. 38. C. W. J. C. No.6733 of 1992.-In this case the petitioners father died on 9-8-1979. On 3-10-1984 the mother of the petitioner, namely, Shrimati Devi filed an application for appointment of the petitioner on compassionate ground, although, the petitioner at the time of his fathers death was only 9 years old, so that he may be appointed when he attains majority. Such application was evidently not maintainable as the petitioner must have attained majority ia the year 1988. 39. In this case also the petitionerss mother did not file any application for her own appointment on compassionate ground. 40. By reason of the impugned order dated 11-5-1992 the District compassionate Committee rejected the application of the petitioner on the ground of delay alone. 41. In view of our findings aforementioned that an appointment on compassionate ground could not hava awaited for an indefinite period in terms of the policy decision of the State- as then existing, the decision of the District Compassionate Committee can not be said to be illegal. This application C. W. J. C.6733 of 1992 is also dismissed. 42. C. W. J. C.5873 of 1992,- In this case the petitioners father died on 12-1-1983. At that point of time the petitioner was only ten years old. The petitioners father left behind his widow, two sons and two daughters. The petitioner filed an application for appointment on compassionate ground after attaining his majority on 18-7-1990. As evidently the petitioner was not eligible for appointment in terms of the aforementioned circulars, no relief can be granted to the petitioner. This application C. W. J. C.5873 of 1992 is, therefore, dismissed. 43. The petitioner filed an application for appointment on compassionate ground after attaining his majority on 18-7-1990. As evidently the petitioner was not eligible for appointment in terms of the aforementioned circulars, no relief can be granted to the petitioner. This application C. W. J. C.5873 of 1992 is, therefore, dismissed. 43. C. W. J. C. No.7272 of 1992.-In this case the petitioners father died on 18th November, 1982. The petitioner filed an application for appointment on compassionate ground on 4th February, 1991. Admittedly at that time of death of the petitioners father, the petitioner was only 11 years old. 44. Thus, in this case also, no relief can be granted to the petitioner. This application C. W. J. C. No.7272 of 1992 is, therefore dismissed. 45. Ah these writ applications are, therefore, dismissed, but in the facts and circumstances of the case there will be no order as to costs.