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2002 DIGILAW 1436 (PAT)

Ram Surat Paswan v. State Of Bihar

2002-12-18

SACHCHIDANAND JHA

body2002
Judgment Sachchidanand Jha, J. 1. The petitioner seeks direction for his appointment as Chaukidar in Beat No. 5 (1) of Chanpatia Police Station on the retirement of his father on the post of Chaukidar in May, 2000: 2. The basis of the petitioners claim is Letter No. 11287 dated 20-12-1995 of the Home (Police) Department, Government of Bihar. Reference may straightway be made to the said letter. The letter appears to have been issued upon sympathetic consideration of the demands made by an Association called Bihar State Dafadar Panchayat. It inter alia provides for one time appointment of a dependent namely, wife or son or brother or nephew or daughters son as Chaukidar on the retirement of Chaukidar/Dafadar after 1-1-1990. It also provides for compassionate appointment of one of the dependents on the death of Dafadar in harness. In this case we are not concerned with that part of the letter. The only question for consideration is whether on the retirement of the incumbent Chaukidar any of his dependents can be appointed in his place. 3. It is not in dispute that rules have been framed for appointment on the post of Chaukidar and the decision of the Government to appoint a dependent of retiring Chaukidar is just an exception to the rule. In this order I do not propose to go into the question as to whether the decision supplements or supplants the rule relating to appointment on the post of Chaukidar. I propose to deal with only one aspect of the case which is the thrust of the letter as to whether a person can claim any right to appointment on the post by descent. It is to be kept in mind that in Rajpati Dubey V/s. State of Bihar, 1973 BUR 558, a Division Bench of this Court has held that the post of Dafadar/Chawkidar is a civil post under the State. 4. The question formulated above is not res intergra. As a matter of fact Article 16 (2) of the Constitution of India itself provides a complete answer to the question. It lays down that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for or discriminated against in respect of any employment or office under the State. It lays down that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for or discriminated against in respect of any employment or office under the State. The Supreme Court in Gazula Dasaratha Ramo Rao V/s. State of Andhra Pradesh and Ors., AIR 1961 SC 564 , had occasion to consider a simiJar plea while examining the provisions of sec. 6 (1) of the Madras Hereditary Village-Offices Act, 1895. The relevant part of the said provision was in the following terms : "...... and, thereupon, all hereditary village-offices (of the classes defined in Sections, Clauses (1) of this Act) in the villages or portions of villages or village, grouped amalgamated or divided as aforesaid, shall cease to exist and new offices, which shall also be hereditary shall be created for the new village or villages. In choosing persons to fill new offices, the Collector shall select the persons whom he may consider the nest qualified from among the families of the last holder of the offices, which have been abolished." Their Lordships held that the office of the village Munsif, as it was called, is an office under the State and, therefore, within the ambit of Clauses (1) and (2) of Art. 16 of the Constitution. The point in issue was decided in these words : "The real question is the custom which is recognised and regulated by the Act consistent with the fundamental right guaranteed by Art. 16? We do not agree with learned Counsel for respondent No. 4 that the family had any preexisting right to property in the shape of the memorandum of the office, independent or irrespective of the office. If there was no such pre-existing right to property apart from the office, then the answer must clearly be that Art. 16 applies and sec. 6 (1) of the Act in so far as it makes a discrimination on the ground of descent only, is violative of the fundamental right of the petitioner." 5. The point at issue would appear to be covered by the aforesated observations of the Supreme Court. 6 (1) of the Act in so far as it makes a discrimination on the ground of descent only, is violative of the fundamental right of the petitioner." 5. The point at issue would appear to be covered by the aforesated observations of the Supreme Court. If an express provision of statute was not sustained on the ground that it contravenes the fundamental right of a citizen it is difficult to uphold a Government order which is prima facie not consistent with the rules, it may be mentioned that in a similar case relating to appointment of a ward of the previous Chaukidar in his place on his retirement, or otherwise, the practice was held to be violative of the constitutional provisions and in the teeth of the aforesaid decision of the Supreme Court, in the case of Md. SamoKhanv. State of Bihar, 1992 (2) PLJR 628, by this Court. As a matter of fact the Supreme Court in the aforesaid case made it clear that even if there was a custom having force of law within the meaning of Art. 13 of the Constitution, the same must yield to fundamental right. This Court observed : "No person can claim appointment on the post of Dafadar or Chaukidar only on the ground that he is the son or descedent of the previous incumbent. That may be a relevant consideration but cannot be the sole consideration. In my view, therefore, the plea has to be rejected as ill-conceived." 6. The distinction may be pointed out at this stage between compassionate appointment on the ground of death of a Government Servant in harness and so-called compassionate appointment of dependent on his retirement. Though, in essence, compassionate appointment of a dependent on the death of an employee in harness too is an exception of the equality clause under Art. 16 of the Constitution, such a provision has been upheld by Courts for different reason and consideration as a token of recognition of the past service rendered by the deceased Government Servant. Quite often, premature death of the Government Servant results in virtual derailment of the bereaved family, It is in order to mitigate the financial hardship of the family caused by the sudden death that such appointment is made so that it is able to meet the crisis. The retirement stands on altogether different footing. Quite often, premature death of the Government Servant results in virtual derailment of the bereaved family, It is in order to mitigate the financial hardship of the family caused by the sudden death that such appointment is made so that it is able to meet the crisis. The retirement stands on altogether different footing. The retirement is a fact which like death comes in every employees life sooner or later. That date is known to the person concerned and he is supposed to have made plans and preparations for leading the retired life. Therefore, appointment of a dependent on retirement of a Government Servant can be justified like compassionate appointment in the case of death in harness. If such a provision is upheld it would virtually amount to providing appointment on the ground only of descent which would be in the teeth of the constitutional provisions under Articles 14 and 16. 7. In the above premises I have no hesitation in coming to the conclusion that the letter dated 20-12-1995 is not in accordance with law. That being the basis of the claim of the petitioner, the same, therefore, must be rejected. 8. In the result, the writ petition is dismissed. 9. Let a copy of this order be sent to the Secretary, Home (Police) Department, for needful.