Prem Narayan v. State Of Bihar — 1994 DIGILAW 396 (PAT)

Judgment S.N.Jha, J. 1. Article 16 of the Constitution of India provides for equality of opportunity for all citizensin matters relating to employment or appointment to any office under the State and prohibits discrimination on grounds of religion, race, caste, sex, descent, place of birth, residence or any of them except in cases falling in exceptions enumerated under Clauses (3) and (5) of the Article. Any preferential right to appointment to the person or class of persons born to particular parents would, thus strictly speaking, be contrary to the Constitutional mandate of Article 16. Appointment of dependent member of Government servants dying in harness on compassionate ground has nevertheless been upheld by this Court in Bijoy Kumar Singh V/s. The State of Bihar 1991 (1) PLJR 316 stating: "The impugned circular, however, is not a bald preference to the dependents of employees of the State Government. It has not gone to the descent of the person preferred for appointment. It has taken notice of a sudden demise resulting in cessation of source which earned bread for them, It has emphasised that those who fall in an income group below Rs. 6,000.00 per year and lost their bread earner should be preferred. It is not a general concession to all the dependents 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 dependents 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 Supreme Court also in Yogendra Prasad Singh V/s. Union of India (1987-I-LLJ-337), while holding that sons or near relatives of the police officers either in service or retired are not entitled to any preference in appointment merely because they happen to be children or wards or other relatives of such police officers, observed that "it may be permissible to appoint a person who is son of the police officer who dies in service or is incapacitated rendering the service in the police department." 2. Having regard to the nature of appointment and the object underlying it, there cannot be any doubt that compassionate appointment is to be made at the earliest otherwise not only the object would be frustrated but the very reason or the basis on which such appointment has been upheld will itself disappear exposing the same to challenge as being violative of Article 16 of the Constitution. It would be apt in this connection to quote the observations of the Supreme Court in Smt. Sushma Gosain and Ors. V/s. Union of India (1990-I-LLJ-169) as hereunder: "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 beard earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such cause pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant." 3. In the instant writ petitions, the Government servants concerned died in harness on different dates in 1987, 1988 and 1992. The claim of the petitioners for compassionate appointment has, however, been kept in abeyance on the ground of non-availability of post. The observations of the Supreme Court in Smt. Sushma Gosain (supra) regarding creation of supernumerary post to accommodate the applicant have since been somewhat diluted in the subsequent judgments of the Supreme Court. It is, therefore, not possible to issue any such direction in favour of the petitioners. 4. It has been brought to our notice that the reason for non- appointment namely; non-availability of post is something special to the Co-operation Department (may be, few other departments or offices too.) While appointments are not being made - Whether on compassionate ground or otherwise - in the Department of Cooperation on the ground of non-availability of post such appointments arc being made in many other departments/offices irrespective of the date of death of the concerned Government servants or the date of application. In other words, the dependent family members of such Government servants who died later than the Government servants concerned in the present writ petitions have already been appointed in other departments/offices while claim of the petitioners have remained pending. In other words, the dependent family members of such Government servants who died later than the Government servants concerned in the present writ petitions have already been appointed in other departments/offices while claim of the petitioners have remained pending. This has happened because such claims are being considered department/office-wise where the deceased government servant was last posted. The present policy or practice of compassionate appointment department- wise or office-wise has been challenged in these writ petitions as illegal, arbitrary and discriminatory, making hostile discrimination between two similarly situate class of persons. 5. Compassionate appointments in posts and services under the State of Bihar are governed by administrative circulars. The first circular on the point was issued on July 12, 1977. The circular was modified from time to time. The circular which holds the field at present was issued on October 5, 1991 bearing Memo No. 3/C 2/2067/90 Ka/13293. The circular lays down, inter alia, the eligibility and the procedure of appointment on compassionate ground. It provides amongst other things that the application along with required papers shall be filed in the office where the deceased government servant was last posted. On the basis of the said provision as contained in Paragraph 4 of the circular, it was submitted by the learned Advocate General that the application for appointment has to be considered by or in the concerned department/office where the deceased government servant was working at the time of his death and not any other department/office. 6. Having regard to the inherent infirmity and illegally in the present procedure confining the consideration of the case to a particular department/office, this Court suggested to the Advocate-General that the circular requires necessary modifications. By our interim order dated June 28, 1994 we called upon the State Government to take the initiative for modification of the circular. The Advocate-General after taking instructions stated that there may be difficulty in making modification in the existing procedure. We then by order dated September 9, 1994 called upon the respondents to indicate the difficulties and make suggestions so that the difficulties may be sorted out and suitable amendments made in the existing procedure of compassionate appointment. Shri. S.N. Biswas, Secretary, Personnel & Administrative Reforms Department has filed an affidavit. He has stated that compassionate appointment is confined to posts carrying pay- scale upon Rs. 1200-1800. Shri. S.N. Biswas, Secretary, Personnel & Administrative Reforms Department has filed an affidavit. He has stated that compassionate appointment is confined to posts carrying pay- scale upon Rs. 1200-1800. As there are different posts of Class 111 and Class IV coming within the purview of the aforesaid pay- scale having different cardres in the different departments and the appointing authority also are different, it would not be possible to have a common cadre of such appointees. It has been pointed out that the Personnel & Administrative Reforms Department has control over only the posts of joint cadre of such Assistants in pay-scale of Rs. 1500-2750 appointment to which is made on the basis of the recommendation of the Bihar Public Service Commission and, therefore, the provisions of the appointment on compassionate ground are not applicable to the posts of joint cadre. 7. 1 am afraid, the Secretary Personnel & Administrative Department has completely missed the point. He has not adverted to anomalies of the present system as briefly indicated above. I am conscious of the fact that as per the existing circular, compassionate appointment is permissible only to Class IV posts and Class III posts upto pay scale of Rs. 1200-1800. We never suggested that there should be a common or joint cadre of persons appointed on compassionate ground or that they should be appointed by one and the same authority. What is in our mind is that all cases of compassionate appointment to posts permissible under the existing circular should be considered together by one body. The circular confers right upon the dependent family members of government servants dying in harness to be considered for appointment to suitable Class III or Class IV posts. It does not make distinction between different departments or offices. All government servants dying in harness stand on the same footing irrespective of where they were working. In fact, the circular does not say that the appointment shall be made in the very same department/office where the de ceased government servant was last posted. It only provides that the application shall be submitted in the office where he was last posted. This is quite understandable since the claim of the applicant would require some scrutiny which can be done properly in the department/office where he was last posted. It only provides that the application shall be submitted in the office where he was last posted. This is quite understandable since the claim of the applicant would require some scrutiny which can be done properly in the department/office where he was last posted. If however, the claim is allowed to be also processed and decided by or at the level of the department/office, treating the same to be separate unit, it might well be that a person, say, X, may not be appointed for long period of time for want of vacancy (as in the present cases) or other justifiable reasons while another, person, say, V may get the appointment in another department/office earlier although his (Y) father died later than X. That would be quite unjust and inequitable situation. Government servants dying in harness and their dependent family members constitute one class for the purpose of compassionate appointment. To treat them differently and confer upon them certain benefit merely because of the place of posting would amount to making further classification between two similarly situate persons or group of persons. A classification or sub-classification can be made only to achieve certain objective and there must be some nexus between the classification and the object. The object underlying compassionate appointment, i.e., to provide certain benefits to a class of persons to mitigate their hardship and suffering on account of the sudden unexpected death of the bread-earner. It would be unjust if a person whose father dies earlier in point of time is not able to get the job merely on account of non-availability of post while another person/son of a government servant working in another department is able to get it as a suitable post happens to be available there. The appointment even on compassionate ground cannot be claimed as of right. The occasion for consideration would also arise only after the death of the government servant(s) in harness. To that extent it is an uncertain right. Nevertheless, the scheme should be such as to make it less uncertain and fortuitous otherwise it becomes arbitrary. Under Article 16(2) of the Constitution a citizen cannot be discriminated against in the matter of employment on the ground only of, inter alia, place of birth. To that extent it is an uncertain right. Nevertheless, the scheme should be such as to make it less uncertain and fortuitous otherwise it becomes arbitrary. Under Article 16(2) of the Constitution a citizen cannot be discriminated against in the matter of employment on the ground only of, inter alia, place of birth. How can a Government servant or his dependent family member after his death be discriminated against on the ground only of place (department/office) of posting for the purpose of compassionate appointment? In my opinion, therefore, the present procedure or system of making compassionate appointment treating equals as unequals and making class distinction between two similarly situate persons or group of persons violates the Constitutional mandate of equality of opportunity in the matter of public employment under Article 16 of the Constitution and to that extent is illegal. 8. It may not be possible to make centralised selection in all cases irrespective of the cadre/class or the level of appointment of the deceased Government servants. For example, those working in the offices at the district level cannot be equated with those working in the Secretariat and its attached offices. Having regard to the size and proportion of the total employment under the State, it would not be possible to make centralised selection at one place. A centralised selection/consideration may make the whole scheme unworkable. The selection, therefore, has to be limited to some level. In my opinion, since distinction already exists between secretariat and its attached offices on the one hand and the district level offices on the other, all cases of compassionate appointment so far as Secretariat and its attached offices are concerned may be considered by one Committee at the Secretariat level. Similarly so far as the district level offices are concerned the Committee headed by the Collector may consider all such cases. The dependent family member of Government servant dying in harness while posted in the Secretariat and its attached offices may submit application in the department/office where the deceased Government servant was last posted as provided in the circular dated October 5, 1991. After initial scrutiny, the applications should be sent to the Secretariat level Committee. The dependent family member of Government servant dying in harness while posted in the Secretariat and its attached offices may submit application in the department/office where the deceased Government servant was last posted as provided in the circular dated October 5, 1991. After initial scrutiny, the applications should be sent to the Secretariat level Committee. The said Committee shall finally consider the claims, both as regards their genuineness and eligibility, and prepare and maintain list of all eligible applicants according to seniority to be reckoned strictly as per the date of death of the Government servant concerned. The control of the joint cadre of the Secretariat and its attached offices staff vests in the Personnel & Administrative Reforms Department, no doubt, with respect to only certain categories of posts beyond the purview of the appointments on compassionate grounds. Notwithstanding that, the Department may function as the Model Department. Likewise, the dependent family members of Government servants posted in the different offices in particular district at the time of their death in harness may submit application in the particular office where the Government servant was last posted but the same should be processed by the District Level Compassionate Appointment Committee headed by the Collector of the District. The said committee, like the Secretariat level Committee, shall prepare and maintain a list of all eligible applicants according to seniority as per the date of death of the Government servants concerned. The Committee shall forward the name(s) of the senior most applicant(s) to the office/authority within whose jurisdiction vacancy occurs, according to the date of vacancy, where they may be appointed by the concerned appointing authority. The said Committees may be constituted by the State Government in the manner as it may deem fit and proper. If this procedure is followed, it would not only remove the anomalies but would also ensure a better and more cohesive procedure of compassionate appointment. 9. There may be cases where application or claim may not be made at all or not made within a reasonable period. Whether it would be proper to ignore the claim of the person made with more promptitude and earnestness and give precedence to the claim of an indolent merely on the basis of the date of death? The circular of October 5, 1991 has done away with the outer limit for making the application. Whether it would be proper to ignore the claim of the person made with more promptitude and earnestness and give precedence to the claim of an indolent merely on the basis of the date of death? The circular of October 5, 1991 has done away with the outer limit for making the application. In the 1977 circular the period of limitation was fixed at two years which was later enhanced to five years. In my opinion, having regard to the nature and object of compassionate appointment a reasonably short period should be fixed for making applications. As this Court in Anil Kumar Singh V/s. State of Bihar 1993 (1) PLJR 414 has held, the object is to provide immediate relief by providing employment to the dependents when the family is in distress and "not to reserve a job for one of the dependents". If no outer limit is fixed for making application, a kid of today may lay his claim after attaining majority/eligibility, say, even after 15 years or so. On this reasoning, this Court in Anil Kwnar Singh (supra) has held that a person who was minor on the date of death of the Government servant cannot claim compassionate appointment on attaining majority. The following observations (page 420 of the Report) may be noticed: "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 dependent 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 dependents." Recently, the Supreme Court in Umesh Kumar Nagpal V/s. State of Haryana (I995-I-LLJ-798) has observed: "Compassionate employment cannot be granted after a lapse of reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole bread-winner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over." It would, thus, be not only just and proper but also obligatory upon the State to fix an outer limit keeping in view the nature of compassionate appointment and claims of others. That would not only make the scheme rational but also workable. 10. The procedure may involve administrative difficulties at the stage of actual implementation. But it is difficult to envisage a scheme which may be fool proof. As indicated above, we had called upon the respondents to indicate the possible difficulties in the centralised selection but nothing concrete was pointed out. What I have suggested above would cater to the need of situation without changing the basic structure or hierarchy of appointment and affecting the competence of appointing authorities as provided under different rules. The procedure suggested above will be limited only upto to the stage of recommendation. If the Bihar Public Service Commission or others. Selection Boards can make common selection and then recommend the persons to various departments for appointment where they are finally appointed by the appointing authority, why similar procedure cannot be adopted in the matter of compassionate appointment? 11. In the case of Damodar Valley Corporation V/s. Damodar Valley Corporation Displaced Employees union and Ors. (1993-II-LLJ-745), the Apex Court had occasion to consider the question of absorption of displaced persons under the scheme of absorption on compassionate ground. The Corporation had prepared a panel of 701 displaced persons. The Calcutta High Court directed 87 persons who were not in the panel to be appointed. The Supreme Court observed that although they had proved their respective title in respect of the land and thus proved eligibility, there should be some criteria on the basis of which the absorption may be made from amongst the persons in the panel. The Supreme Court laid down, amongst others, following guideline: "To avoid any arbitrariness we want to lay down certain criteria on the basis of which seniority of the persons in the panel can be fixed. The Supreme Court laid down, amongst others, following guideline: "To avoid any arbitrariness we want to lay down certain criteria on the basis of which seniority of the persons in the panel can be fixed. The seniority may be fixed on the basis of the qualification and the age. The qualification should be the first criteria and the next criteria would be the age in preparing the seniority list." It would, thus, appear that absorption of even eligible persons without any guideline was not considered to be proper. If guidelines are not laid down, the selection is bound to be haphazard, erratic and arbitrary. All that I have intended to do in this judgment is to lay down the guideline for preparation of panel at different levels for compassionate appointment. The State Government shall do the rest and issue corrigendum circular making suitable modification in the existing circular in the light of the observations made hereinabove. 12 Before I conclude, I may mention that the desirability of making compassionate appointment at the earliest need hardly be emphasised. If the posts are not available, appointment may not be made within a time frame. But if a standing panel is there, as and when vacancy arises in any department/office, the same can be filled up from a common course without avoidable delay. The preparation of standing panel will, therefore, be also conducive to expeditious appointments. 13. In the result, these writ applications are allowed. The Respondents are directed to take necessary steps in the light of the observations and directions made in paragraph 8 and 9 above and to consider the cases of the petitioners accordingly at the appropriate stage. The necessary circular must be issued within three months. AH compassionate appointments shall thereafter be made strictly in accordance with the scheme/procedure envisaged in the judgment. Any appointment contrary to the above scheme/procedure will amount to disobedience of this order exposing the appointing authority to contempt of this Court.