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2006 DIGILAW 771 (PAT)

Bivekanand Singh v. State Of Bihar

2006-08-29

NARAYAN ROY

body2006
Judgment 1. Heard counsel for the parties and considered the counter affidavit. 2. Both the petitioners who were appointed on compassionate ground vide orders as contained in Annexures 3 and 5 respectively dated 30th March, 1994 have been terminated by the order impugned as contained in Annexure 9 dated 7.7.2005. 3. Counsel for the petitioners contended that father of petitioner no. 1 died-in-harness in the year 1983 and an application thereafter was filed on 1.2.1985 on behalf of the petitioner under the provisions of Circular of the State Government of the year 1977 for appointment on compassionate ground whereas father of petitioner no. 2 died-in-harness in 1980 and an application was filed by the mother of petitioner no. 2 in 1981 for her appointment on compassionate ground under the provisions of 1977 Circular of the State Government. The applications filed on behalf of the petitioners however, were not considered as both the petitioners were minors. Application filed on behalf of the mother of petitioner no. 2, however, was not considered. Petitioner No. 2 thereafter filed application in 1993 on attaining majority. The application filed on behalf of petitioner nos. 1 and 2 therafter were considered for their appointment on compassionate ground as they had attained majority by that time and by virtue of the orders as contained in Annexures 3 and 5 respectively they were appointed on compassionate ground vide order dated 30.3.1994. Both the petitioners thereafter continued in services and now vide order as contained in Annexure 9 they have been terminated on technical ground saying that their applications filed for compassionate appointment were not within the time limit and since the family had survived for ten years, no question of appointment on compassionate ground had arisen. 4. Learned counsel further contended that the application filed on behalf of petitioner no. 1 on 1.2.1985 was well within two years prescribed by 1977 circular whereas petitioner no. 2 filed his application in 1993 when there was no such provision of limitation in 1991 circular and, therefore, both the applications were in accordance with the provisions of circulars and the petitioners now could not have been terminated on technical grounds. 5. 1 on 1.2.1985 was well within two years prescribed by 1977 circular whereas petitioner no. 2 filed his application in 1993 when there was no such provision of limitation in 1991 circular and, therefore, both the applications were in accordance with the provisions of circulars and the petitioners now could not have been terminated on technical grounds. 5. Counsel for the State submitted that since the petitioners were appointed after several years of the death of their bread earners and the family had survived as they had sufficient means therefore, cases of the petitioners should not have been considered for appointment on compassionate ground. It is also submitted that since the petitioners were minors at the time of death of their fathers, they could not have been appointed subsequently on attaining the age of majority. 6. It appears from the materials on record that application filed on behalf of the petitioner no. 1 was well within two years of prescribed limit according to the provisions of 1977 circular whereas the application filed by petitioner no. 2 for his appointment in 1993 was also valid as there was no time limit prescribed in 1991 circular. In 1995 circular however a time limit of five years was prescribed for such applications but the day the petitioner no. 2 applied for there was no time iimit prescribed. It further appears that fathers of both the petitioners died-in-harness and applications filed by petitioner no. 1 and mother of petitioner no. 2 were not acted upon and when they attained majority, their cases were considered and they were appointed on compassionate ground. 7. Both the petitioners continued in services uninterruptedly for about eleven years. The cause which had accrued to the petitioners for their appointment on compassionate ground thus could not have been frustrated on technical grounds. Even though the petitioners were minors at the time of death of their fathers, they were entitled to be considered when they attained majority. The authority rightly therefore, considered their applications and appointed them on compassionate ground. In this connection reference may be made to the case of Brajendra Prasad Poddar Vs. State of Bihar and Ors. reported in 1990(2) BLJ 318 . 8. The authority rightly therefore, considered their applications and appointed them on compassionate ground. In this connection reference may be made to the case of Brajendra Prasad Poddar Vs. State of Bihar and Ors. reported in 1990(2) BLJ 318 . 8. The order of termination passed against the petitioners in the given facts and circumstances of the case, is not sustainable for the simple reason that even though they were entitled for appointment on compassionate ground, their cause is being frustrated on technical grounds. This court in the case of Naresh Ram Vs. The State of Bihar and Ors. reported in 2000(2) PUR 716 held that where an incumbent is entitled for compassionate appointment and he is appointed, his appointment should not be cancelled on the ground that there was some technical flaw in the order of appointment having been issued. 9. Besides all these questions, it appears that the petitioners were allowed to continue in service and thus the authorities acquiesced in the infirmities if any, found in the procedures applied in their appointments and more so, it appears to be an appropriate case where equity should be invoked. After long continuance of the petitioners for decades, it would not be justified to terminate them on technical grounds. The cause which was achieved by the petitioners by getting themselves appointed on compassionate ground now could not be allowed to be frustrated on technical grounds pr technical flaws. The object of the provisions pertaining to appointment on compassionate ground appears to be benevolent and if it was enacted with a purpose to provide succour to the bereaved family, technical ground should not be allowed to apply to frustrate their cause. 10. Regard being had to the facts and circumstances of the case, this application is allowed. Order impugned so far the petitioners are concerned is set aside. They are directed to be reinstated with all consequential benefits.