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2000 DIGILAW 607 (PAT)

Ashok Kumar Choudhary v. State Of Bihar

2000-04-20

D.P.S.CHOUDHARY, NAGENDRA RAI

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Judgment Nagendra Rai, J. 1. The petitioner has filed the present writ application for quashing the communication dated 10.5.1999 issued under the signature of the District Establishment Deputy Collector, Muzaffarpur, informing the petitioner about the decision of the District Compassionate Committee dated 10.12.98 rejecting the claim of the petitioner for appointment on compassionate ground in place of his mother, Dharohar Devi. A copy of the said communication has been annexed as Annexure-1 to the writ application. 2. The facts necessary for disposal of the application lies in a narrow compass. Father of the petitioner Baidyanath Choudhary was employed as Clerk in the District Land Reforms Office, Muzaffarpur and superannuated as such on 30th September, 1996. The mother of the petitioner Dharohar Devi was appointed and working as an Assistant Teacher in Government Primary School, Sherpur, Kanti, Muzaffarpur, and she died on 9.9.97. Thus, the father and mother of the petitioner were in Government service and the father superannuated and the mother died while in service. 3. The Government of Bihar has issued Circulars from time to time making provisions for appointment on compassionate ground in case of death of a serving Government employee on fulfilment of certain conditions mentioned in the said Circulars with a view to mitigate the hardship caused to the family after the death of the sole bread-earner. The last Circular after superseding the earlier Circulars was issued by the Government of Bihar, Personnel and Administrative Reforms Department on 5th October, 1991, which contains detailed provisions with regard to the procedure for appointment on compassionate ground. The petitioner applied for appointment on compassionate ground which has been rejected by the District Compassionate Committee on 10.12.1998 on the ground that the father of the petitioner, though retired, is receiving pension and the same is sufficient to mitigate the hardship caused to the family. 4. This case was placed before a learned single Judge under the heading for admission. Before him it was submitted on behalf of the petitioner that clause 1(Anga) of the aforesaid Circular dated 5th October, 1991, which provides, inter alia, that if both the husband and wife are in Government service and one of them dies then the benefits of compassionate appointment will not be available to the dependant, is not applicable in the case of the petitioner as his father had already retired before the death of his mother. In support of the submission counsel for the petitioner relied upon a single Judge decision of this Court in the case of Bijoy Kumar V/s. State of Bihar & others 1998(3) B.L.J. 803. The learned single Judge after having noticed that on the one hand the petitioner has a right to claim appointment on compassionate ground being the son of the deceased State Government employee, and on the other hand he cannot make such claim being the son of the retired State Government employee opined that the decision given by the learned single Judge in the case of Bijoy Kumar (supra) requires reconsideration and accordingly referred the matter to Division Bench by order dated 2.3.2000. 5. Learned counsel for the petitioner submitted that the clause 1(Anga) of the Government Instruction dated 5th October, 1991 is not applicable in the case of the petitioner as on the date when his mother died the father was not in service and as such the petitioner deserves appointment on compassionate ground. 6. Learned counsel appearing on behalf of the State, on the other hand, submitted that the case of the petitioner is covered by the aforesaid policy decision. The father and the mother both were in Government service. The father of the petitioner was getting pension and had also received the retiral benefits at the time of the death of his mother and as such the family was in a position to tide over the crisis caused due to untimely death of the deceased. The sole object for appointment on compassionate ground is to mitigate the hardship caused due to untimely death of a bread earner, and the same does not arise in the case of the petitioner, as his father got retiral benefits and is getting pension and thus the authorities have rightly rejected his claim for appointment on compassionate ground. 7. Article 14 of the Constitution of India guarantees equality before the law and the equal protection of the laws to all citizens within the territory of India. This Article is related to the Preamble of the Constitution as it contains the ideal and concept of equality, as expressed in the Preamble of the Constitution itself. The equality before the law is a dynamic concept having many facets. It provides that no one is above the law nor the law shows any favour or privilege to any class of persons. The equality before the law is a dynamic concept having many facets. It provides that no one is above the law nor the law shows any favour or privilege to any class of persons. It provides that amongst the equals the law should be equal and it should be equally administered. Unequals should not be made equals and equals should not be made unequals. However, the Article does not prohibit classification on the basis of reasonable differentia. The classification is permissible only where there is nexus between the basis of classification and the object of the statutory provision. Article 16 is one of the facets of the basic concept of equality contained in Article 14. It guarantees equality of opportunity for all citizens in the matter of employment to any office under the State. It is a supplement to the main Article 14. However, Article 16 enables the Government to make provision for reservation for the backward classes. 8. Employment is a national property and is to be shared by all on the basis of their merit and qualification. No one should be discriminated on irrational ground. Public office should be filled up by open invitation and on the basis of merit. In law there is no other mode of appointment in Government service. The constitutional mandate does not permit entry through backdoor or preference on the ground of caste, creed or being a dependant of the Government employee. The Constitution prohibits giving preference in the matter of employment on the ground of descent, and that would violate the equality clause. 9. The experience showed that in many cases on the death of a Government employee the family is in a financial distress and needs immediate financial help. Taking into consideration this aspect of the matter purely on humanitarian ground to tide over the financial crisis due to the death of the bread-earner, provisions have been made by the Central Government, State Government and other Corporations to provide employment on compassionate ground to the dependants on the death of a Government employee in Class III and IV posts (non-manual and manual). The Apex Court has upheld the said provisions on the ground that the object of compassionate appointment is to enable the family to tide over the sudden crisis and the object is not to give a member of the family a post on the ground of descent. The Apex Court has upheld the said provisions on the ground that the object of compassionate appointment is to enable the family to tide over the sudden crisis and the object is not to give a member of the family a post on the ground of descent. In the case of Umesh Kumar Nagpal V/s. State of Haryana [ (1994)4 SCC 138 ] the Apex Court considered the object of granting compassionate appointment. It was held: ".......As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Government nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the Public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not able to meet the crisis that a job is to be offered to the eligible member of the family. The Government or the Public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not able to meet the crisis that a job is to be offered to the eligible member of the family. The posts of Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest post by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz, relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family endangered by the erstwhile employment which are suddenly upturned." 10. The same view has been reiterated in the case of Jagdish Prasad V/s. State of Bihar and others [ (1996) 1 S.C.C. 301 ] and in the case of S. Mohan V/s. Government of T.N. and another [ (1998)9 S.C.C. 485 ] where it was reiterated that the object of compassionate appointment being to enable the family to get over the financial crisis it faces at the time of death of the sole breadwinner, and it cannot be claimed and offered whatever the lapse of time and after the crisis is over. 11. Thus, it is settled by now that the only object to give appointment on compassionate ground is to tide over the financial crisis when the employee dies in harness and it is not a mode of appointment. Only on humanitarian ground to help those families who have no means of livelihood at the time of death of the bread-earner, appointment on compassionate ground is given. Only on humanitarian ground to help those families who have no means of livelihood at the time of death of the bread-earner, appointment on compassionate ground is given. If the family has financial help to make both ends meet from other sources and is not in a financial destitution, appointment cannot be granted on compassionate ground only on the death of an employee. The financial condition of the family at the relevant time is a relevant consideration. If there are means to the family to get over the emergent situation arising out of sudden death, then no appointment on compassionate ground can be claimed. This is not an appointment of a dependant in place of the deceased employee on the ground of descent. The appointment is to be made within a reasonable time on Class HI and Class IV posts only, provided the posts are available. No post can be created for giving appointment on compassionate ground. 12. The State of Bihar also with a view to achieve the aforesaid object has issued Instructions/Circular dated 5th October, 1991, as contained in Annexure-2. It provides, inter alia, that the appointment on compassionate ground will be made available to the widow of the deceased employee, son, unmarried daughter and widow of the son. Clause 1 (Anga) of the said Circular reads as follows : Clause 1 (Anga) provides that if the husband and wife both are in service and one of them dies in harness; in that situation no appointment on compassionate ground shall be given to any of the dependant of the deceased employee. An application has to be made in the prescribed form, which is Annexure-1 to the said Circular/Instruction. Apart from other things it provides that the dependant has to state the details of the income including family pension, gratuity, provident fund of the deceased employee, life insurance policy, movable and immovable property and the annual income of the family of the deceased. 13. According to the aforesaid provision, if both the husband and wife are in Government service and one of them dies; in that situation the benefit of appointment on compassionate ground will not be available to the dependant of the family. If the aforesaid sub-clause 1(Anga) is read in isolation without considering the other provisions of the Circular/Instructions including the application form as contained in Annexure-1 and the object of appointment on. If the aforesaid sub-clause 1(Anga) is read in isolation without considering the other provisions of the Circular/Instructions including the application form as contained in Annexure-1 and the object of appointment on. compassionate ground, then the submission advanced on behalf of counsel for the petitioner has some force, but after taking into consideration other provisions of the Circular/Instruction and the object of compassionate appointment, I am not inclined to accept the submission advanced on behalf of the petitioner. If any statutory provision which is subject matter of consideration is clear and unambiguous, then the plain meaning has to be given, unless the said meaning defeats the object of the provision or leads to anomaly, absurdity and inconsistency. If the provision is capable of more than one meaning the principle of purposive construction should be applied, so that the purpose and object for which the provision has been made are given effect to. The sole purpose of appointment on compassionate ground is to tide over the financial crisis in case of emergency. If at the relevant time the family has financial resources to meet the hardship, then no dependant can be appointed on compassionate ground. If the provision as contained in clause 1 (Anga) is interpreted in the manner as suggested by the petitioner, then that would frustrate the very object of appointment on compassionate ground. If one of the spouses dies and the other spouse retires, then the dependant is to be appointed on compassionate ground even though the source of livelihood is available to the family in the shape of pension and other retiral benefits. If appointment on compassionate ground is made in such a situation, then it would be an appointment on the ground of descent and not to meet the sudden hardship caused to the untimely death of an employee. In a case where only one spouse is employed and he dies and the dependent claims for appointment on compassionate ground, in that case also the crucial test is to see as to whether the family had financial resources or not to meet the emergent situation, and if it is found that the family has other sources to maintain itself, then the appointment on compassionate ground will be denied. Thus, in my view the said clause cannot be interpreted to mean that if one of the spouses has retired at the time of death of the other spouse, the dependant will be appointed on compassionate ground. Even if the other spouse has retired at the time of death of the deceased employee but is recipient of the retiral benefits and the pension, even in that case no appointment could be given to the dependant on compassionate ground for the simple reason that the family is not in financial crisis for which appointment is to be made. Thus, the crucial test to decide as to whether a person is to be appointed on compassionate ground or not is to find out whether the family has other sources of livelihood or not at the relevant time to . meet the hardship, and once it is found that the financial condition is sufficient to tide over crisis, then no appointment can be made on compassionate ground and the question whether the other spouse is continuing in service or has retired is wholly immaterial. 14. The learned single Judge in the case of Bijoy Kumar (supra) has considered the plain meaning of the aforesaid clause and held that a retired Government servant cannot be treated in active Government service and as such the aforesaid clause 1 (Anga) is not applicable. In such a situation, the dependant is entitled to appointment on compassionate ground. As I have stated above, if that meaning is given to the aforesaid provision contained in clause 1 (Anga), that would frustrate the very object of appointment on compassionate ground and the appointment for all purposes will be treated as appointment on the ground of descent, which is not permissible in law. 15. So far as the facts of the present case are concerned, the District Compassionate Committee found that at the time of death of the mother of the petitioner father was recipient of the pension and other retiral benefits and the family was not in financial crisis at the relevant time. The father of the petitioner has received retiral benefits and was getting pension and as such in my view the District Compassionate Committee has correctly come to the conclusion that this is not a case where the appointment on compassionate ground could be made. 16. The father of the petitioner has received retiral benefits and was getting pension and as such in my view the District Compassionate Committee has correctly come to the conclusion that this is not a case where the appointment on compassionate ground could be made. 16. Before parting with this case may mention that unfortunately at present a wrong impression has been created that compassionate appointment is one of the modes of appointment as a result of which the dependants of each and every Government employee irrespective of availability or non-availability of financial resources at the relevant time are applying for appointment on compassionate ground. Due to modernisation, computerisation and privatisation the number of Government posts in Class III and Class IV are dwindling. The posts in Class III and Class IV are not being increased proportionate to the growth of the population. In many offices a long list of appointment on compassionate ground is being maintained and it will take 10-20 years to exhaust the list thereby closing the doors for the candidates who have no fortune of being the dependant of a Government employee. No doubt, sympathy and benevolence has some role to play in the matter of appointment on compassionate ground but it cannot play the role to such an extent that it destroys the concept of equality forming the basic feature of the Constitution. Time has come to consider as to whether this mode of appointment be substituted by other financial help at the time of the death of an employee in harness. 17. In the result, this writ petition is dismissed. D.P.S.Choudhary, J. 18 I agree.