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2004 DIGILAW 782 (PAT)

Ajay Shankar Kumar v. State of Bihar

2004-08-03

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ORDER 1. The mother of the petitioner, a Government employee died on 1st March, 1989. The father of the petitioner predeceased the mother of the petitioner. At the time of death of the mother of the petitioner, the petitioner was a minor. On 3rd September, 1990, the petitioner was still a minor but applied for an appointment on compassionate ground. As a minor the petitioner on 3rd September, 1990 could not offer himself for being appointed in a Government job. Under these circumstances, the application of the petitioner dated 3rd September, 1990 was, therefore, an incompetent application which could not be looked at all. The petitioner became major sometime in 1993, as submitted by the learned Counsel for the petitioner. Subsequent thereto on 1st October, 1994 the petitioner applied for compassionate appointment. That application has not yet been decided one way or the other. The petitioner has been informed, as it appears from paragraph 14 of the petition that this application for compassionate appointment has been rejected on, the ground of delay and hence this writ application. 2. The learned Counsel for the petitioner submitted that the application, made by the petitioner on 3rd September, 1990, has not been considered one way or the other, and a decision thereon should have been communicated to the petitioner at the first instance. The second grievance of the petitioner, as submitted by the learned Counsel appearing on behalf of the petitioner is that it does not matter whether at the time when the application was made by him on 3rd September, 1990 he was a minor or not, and if that application was considered subsequent to the petitioner becoming major, the application could not be rejected on the ground that the application had been made by a minor. Lastly, he contended that in any event on 1st October, 1994 petitioner had applied for compassionate appointment and although that application was made after expiry of five years from 1st March. 1989 i.e. the date of the death of the Government employee. but as on the date of making of the application, i.e. on 1st October, 1994 there was no prescribed time limit and as such it was incumbent upon the respondents to consider and decide that application on its merits. 3. It is true that a learned Single Judge of this Court in the case of Rajesh Kumar Vs. State of Bihar & Ors. 3. It is true that a learned Single Judge of this Court in the case of Rajesh Kumar Vs. State of Bihar & Ors. reported in 1991 (1) P.L.J.R. 491 has pronounced that when the application was taken into consideration after the applicant had crossed the age of 18 years, the said application should have been considered on merit. The learned Judge, however, did not consider whether an application by a minor was a competent application which could, at all, be looked at and whether an application which is an incompetent application at the threshold, can be made competent by reason of passage of time by which the person has acquired competence. 4. The learned counsel for the petitioner has cited a Judgment of a Division Bench of this Court in the case of Most. Usha Devi Vs. The State of Bihar reported in 2004 (1) PLJR 257 for the proposition that the application made for compassionate appointment must be decided on its merit one way or the other. There cannot be any dispute to that effect, for which the Government has laid down a policy the implementors of that policy cannot sit tight over the matter for they are obliged to discharge their duties within the four corners of such policy and accordingly they are duty bound to decide the fate of an application made in terms of the policy within a reasonable time from the date of making thereof. The question, however, remains whether a Government Officer is under any obligation to decide an application which has been made dehors the Policy and is accordingly totally incompetent. An application which is incompetent is not even worth waste paper box. A Government Officer, therefore, is entitled to shut his eyes to such an incompetent application and cannot be compelled to consider something which he is not legally obliged to consider. An application not made in accordance with the basic Policy is an incompetent application. As aforesaid the application of the petitioner made on 3rd, September, 1990 was an incompetent application and accordingly no Government Officer attached to the State of Bihar had any obligation to even look at that application. 5. There is no dispute that before 1989 an application for compassionate appointment, in terms of the rules, could be made within two years from the date of the death. 5. There is no dispute that before 1989 an application for compassionate appointment, in terms of the rules, could be made within two years from the date of the death. It is well settled law that a right to get compassionate appointment crystalises on the date of the death. Therefore, the person seeking compassionate appointment must be competent to have such appointment as on the date of the death. If he does not have such competence as on the date of the death, he is incompetent to have such an appointment. When, the rules made for compassionate appointment permit making of an application within a specified time limit, a person, who, although did not have competence to have a compassionate appointment on the date of the death, could apply for such an appointment within the time limit; provided by that time he had acquired the competence to have such appointment. That is the consistent view of this Court including the Division Bench of this Court. In as much as the time to make an application for compassionate appointment was specified as two years from the date of the death, and accordingly only two years time was available for acquiring the eligibility from the date of death, the Bihar State Non Gazetted Employees Federation and Teachers-employees and Officers Coordination Committee made representations to the Government of Bihar for extending that period to five years. This demand was accepted by the Government of Bihar and it entered into two agreements respectively with the said representative bodies of the employees on 19th November, 1988 and 20th November, 1988. In such view of the matter in 1989 the policy was altered by the Government in relation to compassionate appointment, but, however, when the policy was circulated to the circular dated 25th May, 1989 it was incorrectly mentioned there that there shall be no time limit for making an application for appointment on compassionate ground. As a result the benefit which the employees obtained by bargain from the Government through the aforementioned agreements stood immediately lost to them and they were put back to square one position, that is to say, having the qualification and other eligibility on the date of the death of the Government employee. As a result the benefit which the employees obtained by bargain from the Government through the aforementioned agreements stood immediately lost to them and they were put back to square one position, that is to say, having the qualification and other eligibility on the date of the death of the Government employee. Later on the Government realised the situation and by the 1995 policy clarified that the time to make an application shall be five years from the date of the death. For all practical purposes, therefore, it should be deemed that since 19th November, 1988 the policy of the Government is that an application for compassionate appointment must be made within five years from the date of death. In terms of the policy, even if the applicant, as on the date of the death, is not eligible, he may acquire such eligibility within five years and then applying for being appointed. In the instant case, although, the petitioner acquired such qualification or eligibility within five years from the date of the death, but did not make an application within five years. He filed an application after expiry of five years. The policy of the Government does not permit relaxation or extension of time to make an application. A Government Officer can only discharge his duties within four corners of the policy of the Government and cannot act contrary to the policy of the Government. 6. In such view of the matter, a Government Officer also cannot consider and decide an application which is belated and accordingly the application of the petitioner made on 1st October, 1994 cannot be decided except by holding that the application is belated as has been held by the appropriate officer and as has been admitted in paragraph-14 of the writ petition. 7. Before parting with the subject, it is my duty to point out that a matter of similar nature had been taken before the Hon'ble Supreme Court in the case of Sanjay Vs. State of Bihar & Ors. reported in 2000 S.C.C. 192. In that case also it has been pointed by the Supreme Court that an application by a minor for a compassionate appointment is not permissible, for no vacancy can be reserved till such time the applicant becomes a major. 8. In such view of the matter, the writ petition fails and the same is dismissed.