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2002 DIGILAW 688 (PAT)

Dharam Shila Kuer v. State Of Bihar

2002-07-01

AFTAB ALAM

body2002
Judgment 1. Death is known as the great leveller and equaliser. But the petitioner in this case makes the allegation that the State Government treats unequally the dependents of persons killed in terrorist extremist/caste related attacks and in grant ing compensation discriminates among the dependents of those killed in different episodes on grounds of caste, political affiliations and such other considerations. 2. The petitioner is the widow of Jangar Dhari Rai of village Narhi under Sahar P.S. in the district of Bhojpur. Her husband, along with eight others, was killed when, according to the case of the petitioner, a group of activists of C.P.I. (M.L.) attacked the village on 5.5.1996 at about 3 P.M.The details concerning the occurrence were stated in two F.I.Rs. giving rise to Sahat RS. Case Nos. 59 and 60 of 1996. The F.I.R. of case No. 59 of 1996 is at Annexure 1 to the writ petition from which it appears that this case was instituted on the basis of the fard-e-beyan of Sheoji Rai who is a cousin (Chachera Bhai) of the deceased Jangal Dhari Rai. In his fard-e-bayan Sheoji Rai stated that the Narhi occurrence was what may be described as avenge killing by the activists of C.P.I. (M.L.); on 22.4.96, five persons belonging to C.P.I. (M.L.) were killed by some persons in village Naunar and it was in order to avenge the Naunar killings that the activists of C.P.I. (M.L.) attacked village Narhi and killed nine persons. 3. At the time of his death Jangal Dhari Rai was about 35 years old. He left behind a widowed wife, the present petitioner and two minor sons who at the time he was killed were aged about 12 and 8 years respectively. According to the petitioner, he was a marginal farmer and maintained himself and his family members with great difficulty on an income from two bighas of land. He did not have any political affiliations. He was killed only because he belonged to one of the so called upper castes, namely, Bhumihar. The petitioner made a grievance that though the dependents of persons killed in similar other carnages were granted large sums of money and also, in some cases, Government employment to a member of the family of the deceased, the petitioner was not given anything as compensation by the State Government. The petitioner made a grievance that though the dependents of persons killed in similar other carnages were granted large sums of money and also, in some cases, Government employment to a member of the family of the deceased, the petitioner was not given anything as compensation by the State Government. According to her, she was denied compensation for the killing of her husband for no other reason than that she did not belong to the backward castes. 4. This writ petition was filed on 2.7.1997 and till that time nothing was paid to the petitioner as compensation for the killing of her husband. In the writ petition following instances were cited in which dependents of persons killed in similar carnages were granted large sums and/ or Government employment as compensation for the killing of a member of the family : (i) Carnage at village Sarthua in the district of Bhojpur on July 25/26, 1995 : The dependents of each of the six persons killed in the carnage were given Rs. 1 lac as compensation. (ii) Carnage at Bathani Tola of Barki Kharaon village under Sahar RS. in the district of Bhojpur on 11.7.1996 : In this carnage 21 people were killed from ten families and twelve families lost their houses due to fire; four out of the twelve families also had one or more of their members killed apart from having their houses destroyed. In Bathani Tola carnage, the dependents of the deceased were granted each compensation by the State Government (ranging from Rs. 1,10,000/- to Rs. 2,40,000/-). They were also provided with houses under Indira Awas Yojna and other house-hold utensils and articles. In addition, one member from each of the affected families was also given Government employment on a Class IV post. (iii) Occurrence dated July 13 and 15/16, 1994 in village Ugna under Jagdishpur RS. in the district of Bhojpur : In connection with this occurrence the dependents of each of the three killed persons were given cash compensation of Rs. 1 lac; in addition to that a member of the family of each of the three killed persons was given Government employment on a Class IV post. in the district of Bhojpur : In connection with this occurrence the dependents of each of the three killed persons were given cash compensation of Rs. 1 lac; in addition to that a member of the family of each of the three killed persons was given Government employment on a Class IV post. In this case, according to the petitioner, the three persons killed were members of Janta Dal and one of them, Shri Ram Raj Singh was the block level President of the party; that the Chief Minister while visiting the site of the occurrence on 17.7.1994 had made the announcement promising payment of compensation and a Government job to a member of the family of each of the three killed persons. It is further stated on behalf of the petitioner that later on in a note put up in the relevant file it was pointed out that no case was made out for grant of compensation/ employment and further that giving employment in violation of the law of reservation was a penal offence under the Act. The Chief Minister, however, over ruled the objection and on 9.10.1994 directed that in accordance with his announcement the dependents of each of the killed persons be given Rs. 1 lac and also Government employment on class IV posts, if need be by relaxing the relevant financial rules. 5. According to the petitioner, in.all the three instances the victims of the carnages belonged to the backward castes. It is also to be noted that in all the three instances the decision to give cash compensation and/or Government employment to the dependents of the killed persons was taken note at the level of the district administration but at the highest level in the State Government and the compensation package was provided to the victims of the carnages on the basis of public announcements and declarations made by the Chief Minister personally. 6. It was stated on behalf of the petitioner that in contrast to the afore-mentioned three cases, nothing was given to her in compensation for the killing of her husband and even though questions were raised in the legislative assembly regarding non-payment of compensation to the victims of the Narhi killing, all that the Government had to reply was that the relevant file was moving from one department to another. 7. Mr. 7. Mr. Ram Suresh Roy, learned Senior counsel appearing for the petitioner did not mince his words in making submissions before this Court. Learned counsel submitted that the Government acted in a highly partisan manner and indulged in discrimination which was both deplorable and dangerous. Mr. Roy further submitted that adopting double standards in payment of compensation to the victims of terrorist, extremist, caste related violence was one of the worst kinds of discrimination. 8. The first counter affidavit was filed in the case by the Commissioner cum Secretary, Department of Home, Government of Bihar after a year and a half of the filing of the writ petition. In this counter affidavit it was stated that the guidelines for grant of compensation to the families of the victims were laid down in Circular no. 1701, dated 21.9.1987 issued by the Home (Special) Department under the signature of the Chief Secretary, Bihar. This circular, inter alia, provided for an ex gratia grant of Rs. 20,000/- to the dependents of each of the persons killed in terrorist/ extremist/ caste related attacks and the District Magistrate was vested with the powers to sanction and make payment of the ex gratia amount. It was further stated that a number of letters were sent to the District Magistrate, Bhojpur asking him to make payment to the victims of the Narhi killings in terms of the circular, dated 21.9.1987 and by letter, dated 7.10.1998 a sum of Rs. 1,80,000/- was also allotted to the District Magistrate with the direction to pay the ex gratia amounts to the victims of the Narhi killing, including the petitioner, as provided in the Government policy decision. 9. A few days later, a counter affidavit came from the District Magistrate, Bhojpur. In this counter affidavit it was stated that in accordance with the instructions contained in letter no. 1701, dated 21.9.1987 issued by the Home (Special) Department, Government of Bihar, the petitioner was to receive an ex gratia amount of Rs. 20,000/- only; that in addition to this, those who qualified under the National Family Benefit Scheme (N.F.B.S.) would also be entitled to Rs. 10,000/- as grant (in case of accidental death). 1701, dated 21.9.1987 issued by the Home (Special) Department, Government of Bihar, the petitioner was to receive an ex gratia amount of Rs. 20,000/- only; that in addition to this, those who qualified under the National Family Benefit Scheme (N.F.B.S.) would also be entitled to Rs. 10,000/- as grant (in case of accidental death). As regards the petitioners grievance regarding payment of much larger sums in case of other carnages, the reply was rather brusque (though even without meeting her objection) and in para 9 of this counter affidavit, it was stated as follows : "That with regard to the statements made in para 9 of the writ petition it is stated that so far payment of ex gratia in other cases cited in the petition is concerned, it is clarified that in all those cases payment was made as ex gratia not as compensation. In general only Rs. 20,000/- is paid to the nearest kith and kin of the deceased of extremist and caste riot killing. Payment of more amount as ex gratia is discretion of State Government. Hence, it cannot be claimed as a matter of right." (emphasis added) 10. It was then stated that in January, 1999, the petitioner was paid a sum of Rs. 20,000/- in terms of the Government policy decision, dated 21.9.1987 apart from an additional sum of Rs. 10,000/- under N.F.B.S. 11. The Home Secretary then filed a supplementary counter affidavit on 10.8.1999 in which it was stated that the petitioner was entitled to an ex gratia payment of Rs. 20,000/- under Government Circular no. 1701, dated 21.9.1987 and that amount was already paid to her. In the supplementary counter affidavit an attempt was made to distinguish the Narhi occurrence from the Sarthua and Bathani Tola occurrences. It was stated that the carnages at Sarthua and Bathani Tola were of far greater magnitude and had given rise to much stronger protest by C.P.I. (M.L.). In both the cases the Chief Minister had vis ited the sites of the carnages and having regard to the sensitivity of the situation had made public announcements regarding payment of Rs. 1 lac to the dependents of cash of the persons killed. In both the cases the Chief Minister had vis ited the sites of the carnages and having regard to the sensitivity of the situation had made public announcements regarding payment of Rs. 1 lac to the dependents of cash of the persons killed. It is significant to note that in none of the counter affidavits filed on behalf of the State the payment of each compensation and the providing of Government employment to the dependents of the victims of the Ugna occurrence was sought to be justified, explained or dealt with. It is to be recalled that according to the petitioner in that occurrence, cash compensation and employments were given to the dependents of the killed persons after the Chief Minister had overruled the objections in the relevant file. 12. Here it may be noted that the circular, dated 21.9.1987 did not contain any provision for payment of ex gratia and providing of Government employment on the basis of public announcements made by the Chief Minister. And hence, the State was hard put to explain the compensation packages given in the three cases cited by the petitioner and a number of similar other cases. 13. At this stage in the proceedings it was indicated to the Court that the Government proposed to frame a detailed scheme laying down uniform guidelines for payment of compensation etc. to the dependents/ victims of terrorist, extremist, caste based violence and the matter kept on lingering till another supplementary counter affidavit was filed on behalf of the Commissioner cum Secretary, Home bringing on record Circular no. 1972. dated 9.8.2000 issued by the Home (Special) Department under the signature of the Chief Secretary. By this circular the Government purported to review the 1987 circular and laid down fresh guidelines in the matter of payment of compensation etc. to the victims of terrorist, extremist, caste based and election related violence. 14. After the circular, dated 9.8.2000 was produced before the court on 9.1.2001, a supplementary affidavit was filed on behalf of the petitioner on 3.4.2001. In the supplementary affidavit, it was once again alleged that the administration adopted a dual policy in payment of ex gratia etc. to the victims of extremist/ terrorist violence depending upon the caste of the victim families. In the supplementary affidavit, it was once again alleged that the administration adopted a dual policy in payment of ex gratia etc. to the victims of extremist/ terrorist violence depending upon the caste of the victim families. It was alleged that even during the pendency of this case before this Court and even after the issuance of the circular, dated 9.8.2000 there had been no change in the ground realities and the administration continued to deal with similar matters using double standards. In para 3 of the supplementary affidavit a number of cases were cited in which the district administration did not make payment of the ex gratia amount of Rs. 20,000/- (under the 1987 circular) or at the enhanced rate of Rs. 50,000/- under the circular, dated 9.8.2000 simply because, according to the petitioner, the victims belonged to the upper castes. The cases cited in para 3 of the petitioners supplementary affidavit are as follows : (i) Tarari PS Case No. 49/1991 in which, according to the petitioner, three persons were killed allegedly by the activists of I.P.F. (ii) Sikharahata PS Case No. 15/2000, dated 28.2.2000 in which, according to the petitioner, three persons were killed by some alleged terrorists. (iii) Charpokhri PS Case No. 83/2000, dated 24.8.2000 in which, according to the petitioner, two persons were killed by some alleged terrorists. (iv) Sikarhata PS Case No. 36/2000, dated 10.9.2000 in which, according to the petitioner, three persons were killed by some alleged terrorists. (v) Tarari PS Case No. 49/2000, dated 10.9.2000 in which, according to the petitioner, three persons were killed by some alleged terrorists. 15. The petitioner filed yet another supplementary affidavit on 11.4.2002 in which on the basis of a news report published in a daily Hindi newspaper it was alleged that Shri Lalu Prasad, the President of the party forming the Government in this State had announced payment of compensation and promised Government employment in a case of police firing at village Pratappur in the district of Siwan in violation of the guidelines laid down in the circular, dated 9.8.2000. 16. No rejoinder affidavit was filed on behalf of the State controverting the allegations made in the last two supplementary affidavits filed on behalf of the petitioner. 17. From the facts and circumstances stated above it can be gathered that the progress of this case in this Court was, unfortunately, quite slow and tortuous. 16. No rejoinder affidavit was filed on behalf of the State controverting the allegations made in the last two supplementary affidavits filed on behalf of the petitioner. 17. From the facts and circumstances stated above it can be gathered that the progress of this case in this Court was, unfortunately, quite slow and tortuous. This was mainly because this Court was reluctant to take up this case as an adversarial litigation and was all along trying to impress upon the State Government the need to evolve a uniform policy on this issue. The State Government indeed took certain steps which are taken note of in the above lines. But after a point, the State Government appeared to take a rigid and inflexible stand. By and by the issues involved in the case became more and more generalised and apart from individual claim of the petitioner, the court became increasingly concerned with regard to the general Government policy on this matter. The Advocate General was appearing on behalf of the State from before and at a later stage in the proceedings Messrs Tara Kant Jha and Ram Balak Mahto, two of the very senior and highly respected members of the bar were requested to assist the court as Amicus Curiae. 18. In these facts and circumstances the Court finally came to examine the validity of the various provisions contained in circular no. 1972, dated 9.8.2000 issued by the Home (Special) Department under the signature of the Chief Secretary. 19. The Circular starts with a longish preamble or introduction stating in some detail the need for the review of the guidelines earlier issued under circular, dated 21.9.1987 and for formulating a more comprehensive scheme regarding payment of ex gratia and providing Class IV Government job(s) to the dependents of those killed in terrorist, extremist, caste-conflicts (Virodhabhas) based/ election related violence and incidents of mass killings. After the introduction, the circular is divided into four parts dealing with different aspects of the matter; part (i) deals with payment of ex gratia; part (ii) provides for appointment on compassionate grounds; part (iii) stipulates application of the rules of reservation and part (iv) contains some general directions. 20. The four parts of the circular, in so far as relevant for the present are re-produced below, loosely translated into English: The Ex Gratia Amount : Payment of ex gratia for persons killed/ injured. 20. The four parts of the circular, in so far as relevant for the present are re-produced below, loosely translated into English: The Ex Gratia Amount : Payment of ex gratia for persons killed/ injured. (a) The dependents of persons killed in terrorist/ extremist/ caste attacks/ election related incidents shall be given compensation (Muavja) @ Rs. 50,000/- (Rs. fifty thousand) and a Class IV Government job to each (affected) family. (b) (Re. cases of permanent disablement). (c) (Re. cases for serious injury). Note (i) ; The State Government has also decided that the benefit of ex gratia payment and appointment on compassionate grounds shall not be allowed to a person or his dependent who is a terrorist/ extremist or a recorded (Soochibaddh) criminal or who was killed or became disabled or injured in a lawful police or police firing. Note (ii) : The power to sanction ex gratia and to make its payment under subparas (a), (b) and (c) of para 1 shall vest in the concerned District Magistrate and for that purpose a prior approval of the Finance Department shall not be required. (d) Keeping in view the sensitivity and seriousness of (any) other incidents of mass killings (Samuhik Hatya), if announcement were to be made by the Chief Minister, in special circumstances, to give ex gratia/ employment to the dependents of the person killed, then in such cases also sanction would be given, in accordance with the announcement, for employment on Class IV post(s) and payment of ex gratia upto a sum of Rs. 1 lac. (e) If under special circumstances announcement were to be made by the Chief Minister for payment of ex gratia to the dependents of persons killed in other incidents of violence, then in such cases an ex gratia payment would be made upto a sum of Rs. 1 lac but no employment will be given. (f) Dependents of persons killed in incidents of violence would also be given ex gratia upto a sum of Rs. 1 lac/ Class IV Government job(s), also, in compliance with the announcement made by the Government in the Vidhan Mandal. Note (iii): Sanction for payment of the ex gratia amount/ employment in cases under sub paragraphs (d), (e) and (f) will be given by the Home (Special) Department after obtaining the occurrence of the Finance Department. 1 lac/ Class IV Government job(s), also, in compliance with the announcement made by the Government in the Vidhan Mandal. Note (iii): Sanction for payment of the ex gratia amount/ employment in cases under sub paragraphs (d), (e) and (f) will be given by the Home (Special) Department after obtaining the occurrence of the Finance Department. Appointment on Compassionate Grounds : Any one adult dependent (of the person killed) shall be appointed on compassionate grounds in the following order of priority : (a) Wife of the deceased/ husband of the deceased. (b) Son. (c) Unmarried daughter. (d) Wife of the deceased son. Note : For appointment of the dependents in the different district offices, the concerned District Magistrate will make recommendations, through the District Level Compassionate Committee, following the rules of reservation and the (available) vacancies. Compliance with Rules of Reservation : All rules of the State Government relating to reservation shall be followed in making appointments on compassionate grounds. 21. Part (iv) of the circular contains some general directions emphasising the need to grant the benefits under the circular to the dependents of the victims of violence expeditiously and without any delay; there are some other directions also of a general nature which are not relevant for the present. 22. It is, thus, to be seen that under the circular, dated 9.8.2000 the grant of cash payments and employment is at two levels, one at the level of the District Magistrate and the other at the level of the Chief Minister. At the level of the District Magistrate the cash payment is called Compensation (Muavza) and at the level of the Chief Minister it is termed ex gratia (Anugrah Anudaan). But apart from this play of semantics there is a big difference in the manner of the exercise of powers at the two levels. The Chief Minister appears to have been vested with vast discretionery powers under circumstances which are ill defined or hardly defined at all; unlike this, the District Magistrate is not allowed any discretion or subjective choice. 23. The Chief Minister appears to have been vested with vast discretionery powers under circumstances which are ill defined or hardly defined at all; unlike this, the District Magistrate is not allowed any discretion or subjective choice. 23. It is to be noted.that under part (I), para 1, (a), (b) and (c) of the circular the concerned District Magistrate can deny payment of compensation and employment only on the grounds that (i) the occurrence of killing was not a terrorist/ extremist/ caste-attack or election related incident in nature or that (ii) the person killed was himself an extremist/ terrorist etc. and, therefore, the grant of compensation was barred by Note (i). But once the two conditions are satisfied, the former positively and the latter negatively, that is to say, once the District Magistrate is satisfied on the basis of objective findings that the occurrence of killing(s) was one of terrorist/ extremist/ caste attacks or election related incidents and the person(s) killed was/ were not terrorist (s) etc., he would be obliged to sanction payment of compensation and give employment to the dependent(s) of the person(s) killed and it would not be open to him to make a distinction in this regard between one occurrence and the other. 24. It needs to be further clarified here that on such occurrences taking place the District Magistrate may suo moto proceed to make payment of compensation and provide employment or he may do so on the basis of an application made by the dependent(s) of the person(s) killed. In case such an application is made, the District Magistrate must, acting in accordance with the general directions contained in part (iv) of the circular dispose of the claim expeditiously and preferably within two months from the date of filing of the application. The District Magistrate must either sanction payment of compensation and providing of employment or reject the claim, recording a clear finding that the occurrence was not one of terrorist/ extremist/ caste attacks/ election related incidents or that the person killed was hit by the exclusion note. In such cases the Government will be well advised to provide an appeal against the order passed by the District Magistrate to the Home Secretary whose decision on the issue should be final. 25. In such cases the Government will be well advised to provide an appeal against the order passed by the District Magistrate to the Home Secretary whose decision on the issue should be final. 25. This being the position the provisions in the circular for granting compensation to the victims at the level of the District Magistrate can be accepted and upheld by this Court without any difficulty. 26. But an anomaly is introduced in granting employment even at that level by insisting upon following the rules of reservation. Not much imagination is required to see that introduction of the rules of reservation in giving employment on compassionate grounds under the circular will put the victims belonging to the unreserved categories in a disadvantageous position in comparison to the victims belonging to the different reserved categories. 27. In this regard the stand of the State Government was that in formulating an executive policy it was not permissible for it to take a position contrary to the provision of a legislative enactment, namely, The Bihar Reservation of Vacancies in Posts and Services (For Scheduled Caste, Scheduled Tribes and Other Backward Classes) Act, 1991. 28. In context, the explanation appears to me quite unconvincing. It is to be borne in mind that the scheme is entirely based on the special classification comprising the victims of terrorist/ extremist/caste attacks/ election related incidents and that classification is its sole justification. The introduction of caste based reservation, for whatever reasons, runs contrary to the special classification on which the scheme is based and in introducing caste- based reservation the framers of the policy undermined the very basis of the policy. The insistence on following the rules of reservation in giving employment on compassionate grounds rendered the policy open to the charge that it was designed with a view to abuse and misuse the provisions of the Reservation Act which normally apply to regular appointments and not to any special category of appointments under special circumstances. 29. It may be noted here that in another scheme of compassionate appointments on the basis of another special classification, comprising the dependents of Government employees dying in harness, there is no such insistence on application of the rules of reservation, even though that scheme is also under executive policy decision and not under any statute. 30. 29. It may be noted here that in another scheme of compassionate appointments on the basis of another special classification, comprising the dependents of Government employees dying in harness, there is no such insistence on application of the rules of reservation, even though that scheme is also under executive policy decision and not under any statute. 30. For the reasons discussed above, this Court might have been required to seriously examine the validity of the relevant provisions in the circular in which the grant of appointment on compassionate grounds was made subject to the rules of reservation. But the good judgment shown by the Advocate General obviated the need to go any further on this issue. In course of his submissions, the Advocate General stated that those who were otherwise covered by the scheme would be granted jobs regardless of their caste or religion and the provisions of the Reservation Act will not be allowed to come as a bar against their getting a Government job. The stand taken by the Advocate General appears to this Court to be quite reasonable, just and fair, apart from being in accordance with his opinion given to the State Government that the victims of carnages formed a special class and could be given Government jobs, on compassionate grounds on that basis as referred to in the introduction to the circular, dated 9.8.2000. 31. In view of the definite and clear statement made by the Advocate General no further direction is required by this court on this issue. 32. This takes us to the provisions contained in part I, paras 1 (d) and (e) of the circular under which the Chief Minister, on his/her own, is empowered and authorised to grant payment of ex gratia (upto a sum of Rs. 1 lac) and a Government job by making a public announcement in that regard. It appears to me that sub-paras (d) and (e) of para 1 of the circular give vast discretionery power to the Chief Minister in areas which are left completely undefined. The expression used are mass killing [(SamuhiK Hatya) (in sub para (d)] and other incidents of violence, [(Anye Hinsatmik Ghatna) (sub para (e)]. It appears to me that sub-paras (d) and (e) of para 1 of the circular give vast discretionery power to the Chief Minister in areas which are left completely undefined. The expression used are mass killing [(SamuhiK Hatya) (in sub para (d)] and other incidents of violence, [(Anye Hinsatmik Ghatna) (sub para (e)]. These two expressions would make a much larger circle which would not only encompase the similar circles of terrorist/ extremist/ caste attacks and election related incidents but also many other kinds of violence and/or killings e.g. violence motivated by personal vendetta, family quarrels, property dispute etc. It is further to be noted that the expression mass killings has been left completely undefined. One Chief Minister may consider an occurrence in which three persons are killed, a case of mass killings; another Chief Minister or the same Chief Minister at a different time may not consider another occurrence in which five or seven persons might be killed as a case of mass killing. The expression other incidents of violence is even more vague and difficult to follow. One Chief Minister may be moved to make an announcement for payment of ex gratia and giving Government employment in a case of assault; another Chief Minister or the same Chief Minister at a different time may not consider an incident of violence in which several persons might be killed as a fit case for ex-gratia payment under sub-para (e). Further, the expression "sensitivity" (Samvedan Shilta) and "seriousness" (Gambhirta) used in sub-para (d) and the expression "special circumstances" (Vishesh Paristhiti) used both in sub paras (d) and (e) are no less vague. What would be the indices of sensitivity, seriousness and special circumstances? Can the sensitivity or seriousness of an occurrence be judged on the basis of agitations or protests orchestrated by the Chief Ministers own part or the parties supporting his/her Government? The provisions do not contain even a hint of the objective criteria for determining the sensitivity or seriousness of an occurrence such as the number of persons killed, the age(s) of the victim(s) killed, the manner of Rilling, the identity of the alleged assailants, the position of the persons killed in the socio economic ladder the nature of violence, urban and rural, to name only a few. 33. 33. As to Note (iii) in part I of the circular stating that the sanction in respect of cases under sub paras (d), (e) and (f) will be made by the Home (Special) Department after obtaining the concurrence of the Finance Department, the Advocate General had the fairness and the grace to say that that was an ornamental provisions of the circular. 34. But this did not deter the Advocate General from putting up a strong defence of the provision made in sub paragraphs (d) & (e) of para 1 of the circular and he strenuously defended the powers and authority given to the Chief Minister by those provisions. He contended that it might be open to the Court to examine the validity of the action taken by the State Government in a particular case and even to hold that the action of the Government was not legal or valid in the facts and circumstances of that case but it was not open to the Court to make a review of the powers given to the Chief Minister under a general policy decision of the State Government. The Advocate General further contended that to adopt a certain policy was the prerogative of the executive and the Court in exercise of its power of judicial review will not go so far as to make any amendments or changes in the Government policy. In defence of the powers given to the Chief Minister in sub paras (d) and (e) of para 1 of the circular he advanced several well recognised legal propositions culled from decisions of the Supreme Court. 35. (i) The Advocate General cited the Supreme Court decision in State of Rajasthan V/s. Sevanivatra Karamchari Hitkari Samiti, (1995) 2 SCC 117 (at 126 para 24) in which it was held that the wisdom in a policy decision of the Government is not justiciable unless it is held to be capricious. 35. (i) The Advocate General cited the Supreme Court decision in State of Rajasthan V/s. Sevanivatra Karamchari Hitkari Samiti, (1995) 2 SCC 117 (at 126 para 24) in which it was held that the wisdom in a policy decision of the Government is not justiciable unless it is held to be capricious. This decision is with regard to the cut off date in connection with a liberalised pension scheme and the complete observation in para 24 of the decision is as follows : "The wisdom in a policy decision of the Government, as such, is not justiciable unless such policy decision is wholly capricious, arbitrary and whimsical thereby offending the Rule of law as enshrined in Article 14 of the Constitution or such policy decision offends any statutory provisions or the provisions of the Constitution. Save as aforesaid, the court need not embark on uncharted ocean of public policy? (ii) He cited the Supreme Court decision in State of Punjab V/s. Ram Lubhaya Bagga, (1998) 4 SCC 117 (at page 126, para 25) in which it was held that normally it does not lie within the domain of any court to weigh the pros and cons of a Government decision or to scrutinise it and test the degree of its beneficial or equitable disposition for the purpose of verifying, modifying or annuling it. (iii) He referred to the decision of the Supreme Court in Mafat Lal Industries V/s. Union of India, (1997) 5 SCC 536 (at page 619, para 88) in which it was held that the door has to be left open for trial and error and the possibility of an abuse of the power would be no ground for interference by courts. (iv) He relied upon a decision of the Supreme Court in Sukumar Mukherjee V/s. State of West Bengal & Another, (1993) 3 SCC 723 (at page 756, para 38) in which it was held that no provision can be struck down on the ground that though valid in itself, it was likely to be misused or abused. (v) He relied upon a decision of the Supreme Court in the State of Bihar & Another V/s. Tata Engineering & Locomotive Company Limited, AIR 1971 SC 474 (at page 476, para 6); in which it was held that abuse of power cannot be easily assumed specially when discretionery power is given to the highest person in the Government. (v) He relied upon a decision of the Supreme Court in the State of Bihar & Another V/s. Tata Engineering & Locomotive Company Limited, AIR 1971 SC 474 (at page 476, para 6); in which it was held that abuse of power cannot be easily assumed specially when discretionery power is given to the highest person in the Government. On the contrary it may be assumed that the person vested with the power shall act reasonably : (vi) And lastly he relied upon a decision of the Supreme Court in Roop Chand Adlakha and others V/s. Delhi Development Authority and others, 1989 Supp. (1) SCC 116 (at page 127, para 29) in which it was held that unless the provision in a policy decision is shown to be arbitrary, capricious or to bring about grossly unfair results, the judicial policy should be one of judicial restraint. 36. The legal propositions advanced by the Advocate General are long established and well recognised but to me those provisions seems to be of no help in uefending the provisions of sub paras (d) and (e) of para 1 of the circular. To my mind the submissions of the learned Advocate General over-look the distinction between the substance of the policy decision and the manner of implementation of the policy. 37. Mr. Tara Kant Jha appearing as Amicus Curiae on the request of the Court rightly pointed out that the policy decision of the Government was simply to give compensation packages to the victims of extremist/ terrorist/ caste attacks/ election related incidents and occurrences of mass killings and the declaration to that effect was made at the begininng of the circular. The vesting of absolute powers in the Chief Minister to decide as to which of the occurrence would or would not qualify for the grant of the compensation package was definitely no part of the "policy decision". It was merely the manner in which the Government proposed to have its policy implemented and, therefore, the provisions of sub paras (d) and (e) were purely procedural in nature. Mr. Jha submitted that the procedure laid down under those sub paras were patently arbitrary and unreasonable and were designed bound to lead to capricious, unjust and unfair results. 38. Mr. Mr. Jha submitted that the procedure laid down under those sub paras were patently arbitrary and unreasonable and were designed bound to lead to capricious, unjust and unfair results. 38. Mr. Jha further submitted that process of decision making for the implementation of the policy should be more broad based and transparent and in this regard he suggested that any public announcement for the grant of compensation ought to be made only on the basis of a decision by a committee consisting of not less than three persons from amongst the following : (i) The Chief Minister. (ii) The Speaker of the Legislative Assembly. (iii) The Chairman of the Legislative Council. (iv) The Leader of the opposition in the two houses, and the (v) The Lok Ayukta. 39. For achieving procedural transparency Mr. Jha submitted that details relating to all cases in which payments of ex gratia were made and appointments were given on compassionate grounds should be laid on the table of the House. 40. Mr. Ram Balak Mahto, Senior Advocate also appearing as Amicus Curiae on the request of the Court took the same stand. Mr. Mahto maintained that sub paras (d) and (e) of para 1 of the circular, vesting almost absolute powers in the Chief Minister, were indefensible. It gave excessive, uncanalised and unfettered discretion to the Chief Minister without giving any indication as the circumstances under which those powers were to be exercised. Mr. Mahto pointed out that in a series of decisions the Supreme Court has consistently frowned upon uncanalised and unfettered discretion in the hands of any instrumentality of the State. Learned counsel submitted that the law laid down by the Supreme Court on the issue of excessive delegation of discretion was summarised in the Treatise on Administrative Law by M.P. Jain, 1996 edition, Vol. 1, page 769 as follows : "... Therefore, the conferment of arbitrary discretion on an authority to select persons, or things for application of law without laying down any policy or principle to guide the exercise of such discretion is invalid. The conferment of unguided and unstructured discretion on an authority violates Article 14 because the law enables the authority to exercise the discretion arbitrarily and thus discriminate without reason. The general principle, therefore, is that conferment of too broad, sweeping, uncanalised, uncontrolled discretion on an administrative authority violates Article 14. The conferment of unguided and unstructured discretion on an authority violates Article 14 because the law enables the authority to exercise the discretion arbitrarily and thus discriminate without reason. The general principle, therefore, is that conferment of too broad, sweeping, uncanalised, uncontrolled discretion on an administrative authority violates Article 14. The reason underlying this proposition is that uncontrolled discretion may easily degenerate into arbitrariness; it creates the danger of discrimination and denial of equality among those similarly situated which is subversive of the doctrine of equality enshrined in Article 14." 41. I find that the submissions of Mr. Mahto are well founded and are supported by a long series of decisions. 42. As early as in 1967 in S.G. Jaisinghani V/s. Union of India and others, AIR 1967 S.C. 1427 , a constitution bench of the Supreme Court in para 14 of the decision observed as follows : "14. In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is the antithesis of decision taken in accordance with the rule of law. (See Dicey - "Law of the Constitution" - Tenth Edn. Introduction ex.). "Law has reached its finest moments" stated Douglas, J. in United States V/s. Wunderlich, (1951) 342 US 98, "when it has freed man from the unlimited discretion of some ruler... Where discretion is absolute, man has always suffered". It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes, (1770) 4 Burr 2528 at P. 2539 "means sound discretion guided by law. It must be govened by rule, not by humour : it must not be arbitrary, vague and fanciful." 43. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes, (1770) 4 Burr 2528 at P. 2539 "means sound discretion guided by law. It must be govened by rule, not by humour : it must not be arbitrary, vague and fanciful." 43. The same year another constitution bench of the Supreme Court in the State of Andhra Pradesh V/s. Nalla Raja Reddy and others, AIR 1967 SC 1458 made the following observations : "Official arbitrariness is more subversive of the doctrine of equality than statutory discrimination. In respect of a statutory discrimination one knows where he stands, but the wand of official arbitrariness can be waved in all directions indiscriminately." 44. In Khudiram Das V/s. State of West Bengal and others, AIR 1975 SC 550 , P.N. Bhagwati, J. (as His Lordship then was), speaking for the court made the following observations : "11. This discussion is sufficient to show that there is nothing like unfettered discretion immune from judicial reviewability. The truth is that in a Government under law, there can be no such thing as unreviewable discretion. "Law has reached its finest moments", said Justice Douglas. "When it has freed man from the unlimited discretion of some ruler, some .... official, some bureaucrat ..... Absolute discretion is a worthless master. It is more destructive of freedom than any of mans other inventions". United States V/s. Wunderlich (1951) 342 US 98. 45. In Suman Gupta V/s. State of J & K, AIR 1983 SC 1235 , it was held in para 6 of the decision as follows : "6. ... After considering the matter carefully, we confess, we are unable to subscribe to the view that the selection of candidates for that purpose must remain in the unlimited discretion and the uncontrolled choice of the State Government. We think it beyond dispute that the exercise of all administrative power based in the public authority must be structured within a system of controls informed by both relevance and reasonsrelevance in relation to the object which it seeks to serve, and reason in regard to the manner in which it attempts to do so. Wherever the exercise of such power affects individual rights, there can be no greater assurance protecting its valid exercise than its governance by these twin tests. Wherever the exercise of such power affects individual rights, there can be no greater assurance protecting its valid exercise than its governance by these twin tests. A stream of case law radiating from the now well known decisions of this Court in Menaka Gandhi V/s. Union of India (1978) 2 SCR 621 ; ( AIR 1978 SC 597 ) has laid down in clear terms that Article 14 of the Constitution is violated by powers and procedures which in themselves result in unfairness and arbitrariness. It must be remembered that our entire constitutional system is founded on the Rule of Law, and in any system so designed it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason. To contend that the choice of a candidate selected on the basis of his ability to project the culture and ethos of his home State must necessarily be left to the unfettered discretion of executive authority is to deny a fundamental principle of our constitutional life. We do not doubt that in the realm of administrative power the element of discretion may properly find place where the statute or the nature of the power intends so. But there is a well recognised distinction between an administrative power to be exercised within defined limits in the reasonable discretion of designated authority and the vesting of an absolute and uncontrolled power in such authority. One is power controlled by law countenanced by the Constitution, the other falls outside the Constitution altogether. 46. In Surendra Kumar V/s. State of Bihar and others, A.I.R. 1985 SC 87 (which may be considered as a sequal to Suman Gupta) the Supreme Court practically chastised the Government of Bihar for not following the decision in Suman Gupta and reiterated its earlier decision in that case. 47. In Sheonandan Paswan V/s. State of Bihar and others, AIR 1987 SC 877 , P.N. Bhagwati, C.J. speaking for the constitution bench made the following observations in para 22 of the decision. "It is significant to note that the entire development of administrative law is characterised by a consistent series of decisions controlling and structuring the discretion conferred on the State and its officers. "It is significant to note that the entire development of administrative law is characterised by a consistent series of decisions controlling and structuring the discretion conferred on the State and its officers. The law always frowns on uncanalised and unfettered discretion conferred on any instrumentality of the State and it is the glory of administrative law that such discretion has been through judidical discretions structured and regulated." 48. In P.N. Duda V/s. P. Shivshanker, A.I.R. 1988 SC 1208 the Supreme Court noted with approval Burkes parliamentary speech of the year 1772 observing as follows in paragraph 31 of the decision : "31. It is well to remember that Burke said in the House of commons in 1772 in connection with the motion for select Committee for enquiry into the affairs of the East India Company and Clive. He said that when discretionary power is lodged in the hands of any man or class of men. experience proves that it will always be abused. Where no laws exist men must be arbitrary and very necessary acts of Government will often be. in such cases. represented by the interested and malevolent as instances of Wanton oppression (Clive of India-Nirad C. Chaudary, Page 381). Times have changed here, the discretion is vested on a very high dignatory and a friend of the Court. yet it is subject to scrutiny." 49. I am satisfied that the point is well made and there is no need to burden the decision any further with quotations from case laws. On this issue one may also see : State of West Bengal V/s. Anwar Ali Sarkar, A.I.R. 1952 SC 75 : Satwant Singh Sawhney V/s. D. Ramarathnam, A.I.R. 1967 SC 1836 : Rash Bihari Panda V/s. State of Orissa, A.I.R. 1969 SC 1081 : A.K. Kraipak V/s. Union of India, A.I.R. 1970 SC 150; Khudi Ram V/s. State of West Bengal, A.I.R. 1975 SC 550; Ramanna Daya Ram Shetty V/s. The International Airport Authority of India, A.I.R. 1979 SC 1628; Kasturilal V/s. State of J & K., A.I.R. 1980 SC 1992; State of Haryana V/s. Jage Ram, A.I.R. 1983 SC 103; Sudhir Chandra V/s. TISCO, A.I.R. 1984 SC 1064; Ram & Shyam Company V/s. State of Haryana, A.I.R. 1985 SC 1147; Chenchu Ram Reddy V/s. Govt. of A.P., A.I.R. 1986 SC 1158; Mahavir Auto Stores & Ors. of A.P., A.I.R. 1986 SC 1158; Mahavir Auto Stores & Ors. V/s. Indian Oil Corporation & Ors., A.I.R. 1990 SC 1031; Kishan Prakash Sharma V/s. U.O.I., (2001) 5 S.C.C. 212 . 50. In the light of the above discussion, it clearly appears to me that the provisions of sub paras (d) and (e) of para 1 of the circular, dated 9.8.2000 suffer from the vice of conferring excessive and uncontrolled discretion in the hands of a single individual. Under those provisions the payment of ex-gratia and providing a Government job is placed in a realm over which the Chief Minister reigns unquestioned. This is bound to lead to arbitrary, unfair and unjust consequences of which the case of the petitioner is only an illustration. For five years this case remained pending before this Court but no one was able to tell the Court, or the petitioner, what induced the Chief Minister to grant ex-gratia payment of Rs. 1 lac and Government job to the victims of the Ugna occurrence and why did the petitioner and the other victims of the Narhi killings failed to touch the soft spot in the Chief Ministers heart. 51. For the reasons discussed above, I am constrained to hold and declare that sub paras (d) and (e) of para 1 of the circular offend Article 14 of the Constitution. Consequently, the provisions of those two sub paras are held to be void and inoperative. 52. Coming now to sub para (f), it may be noted that though the expression "incidents of violence" (Hinsatmak Ghatna) is as vague as the expressions used in the preceding sub paras, there is a major difference between the two provisions. The decision here is not left with any individual but it would be a collective decision of the Government and that decision has to be announced in the Vidhan Mandal to which the Government is accountable for its survival. The decision making process is quite broad based and there is also some accountability before the Vidhan Mandal. I, therefore, find that there are sufficient checks and balances in this provision and for this reason this Court would leave this matter between the Government and the Vidhan Mandal. 53. The decision making process is quite broad based and there is also some accountability before the Vidhan Mandal. I, therefore, find that there are sufficient checks and balances in this provision and for this reason this Court would leave this matter between the Government and the Vidhan Mandal. 53. In the light of discussions made above, it is held and found that the provisions of sub paras (d) and (e) of para 1 of Part I of the circular, dated 9.8.2000 are void and inoperative; the rest of the circular is held to be legal and valid subject to the statement made by the Advocate General on the question of compassionate appointment. As a result of these findings it shall be unlawful for anyone in the Government to purport to act under sub paras (d) & (e) of para 1 of the circular and to make payment of any compensation and/or give any appointment on the basis of any announcement made by the Chief Minister. 54. It will be, however, open to the Government to re-formulate its policy in the light of this decision. 55. In the light of the discussions aforesaid, no further relief can be granted to the petitioner but she has definitely served a public cause by forcing the issue and obtaining a judicial pronouncement on this vexed issue. 56. Before parting with this judgment, I would like to express both my appreciation and gratitude for the assistance rendered by Mesrs. Tara Kant Jha and Ram Balak Mahto and of course by the Advocate General. 57. In the result, this writ petition stands disposed of in the light of the observation and directions made above.