Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 418 (PAT)

Kailash Ravidas v. State Of Bihar

2012-03-07

SHIVAJI PANDEY

body2012
ORDER In this case petitioner is challenging the decision taken by the District Compassionate Appointment Committee, Nalanda (for short, ‘Committee’) in its meeting dated 18th September 1998 communicated the petitioner on the basis of order vide Memo No. 6635 dated 16th June 1998 issued by the Additional Secretary, Govt. of Bihar by which the services of the petitioner have been dispensed with by withdrawing the recommendation of his appointment (Annexure-3 to the writ petition). 2. In this case, Govind Ravidas, father of the petitioner died on 15th October 1977. On 6th December 1977, an application was filed by the petitioner for his appointment on compassionate basis. It will be relevant to mention that admittedly the petitioner was only 9 years. In the application, as has been argued by the petitioner, he had given the details of property vide Annexure-3 to the writ petition. The Additional Chief Engineer, Building, P.W.D., Bihar vide Memo No. 556 dated 3rd March 1978 recommended the name of the petitioner for being appointed on compassionate basis. In the said letter it has been stated that Kailash Ravidas (Petitioner) is son of Govind Ravidas and, as such on the death of his father, petitioner should be appointed on regular basis on compassionate basis. 3. It appears from the record that the Chief Engineer, (Road),South Bihar vide letter No.3,Est.-40-87/86 dated 19th March 1987(Annexure-5) issued a letter to the effect that the issue of appointment of Kailash Ravidas was under deliberation and sought information about the status of his appointment and gave an advice to enquire into the matter and furnish relevant documents to his Office. 4. The Superintending Engineer, Central Circle, Patna vide letter dated 6th October 1987 sent the relevant record of petitioner for his appointment on compassionate ground. 4. The Superintending Engineer, Central Circle, Patna vide letter dated 6th October 1987 sent the relevant record of petitioner for his appointment on compassionate ground. It appears from the letter dated 3rd January 1987 of the Deputy Collector (Est.), Nalanda, Biharsharif(Ammexire-7), where it has been stated that the application for appointment on compassionate ground has been received after ten years from the date of death of his father whereas the Circular of the State Government provided that the application should be filed within two years and sought information as to when Kailash Ravidas (Petitioner) had filed application and if he had filed, where it remained pending and also sought an information about the position of vacancy whereupon the Superintending Engineer, Central Circle, Patna vide Letter No. 3286 dated 17th November 1987(Annexure-8) addressed to the Deputy Collector, Establishment, Nalanda stating the fact that father of the petitioner had died on 15th October 1977 and his application for appointment was processed vide Letter No.556 (Anu) dated 3rd March 1978 but it became traceless in the Office of Chief Engineer, (Road), P.W.D, Patna in support of aforesaid fact attached the letter No. 338 dated 19th March 1987. Later on petitioner had filed a fresh application and the same was sent to the Office of Deputy Collector through Memo No. 2876 dated 6th October 1987 and it has been stated that the application for appointment was filed within two years. 5. It appears from the record that the compassionate Appointment Committee in its meeting recommended the name of petitioner for being appointed on compassionate basis. Accordingly petitioner was appointed as Daftari in place of his father. He continued in service but his bad days started when an application by one Parwej Alam giving the instance of petitioner filed an application for his appointment on compassionate ground. On the application aforesaid, the Deputy Secretary, Govt. of Bihar, vide letter dated 30th April 1997 addressed to the District Magistrate, Nalanda sought an information in connection with appointment of Kailash Ravidas (Petitioner), giving details about death of father of Kailash Ravidas, but when his application was received and under what circumstances he was recommended for being appointed on compassionate ground. of Bihar, vide letter dated 30th April 1997 addressed to the District Magistrate, Nalanda sought an information in connection with appointment of Kailash Ravidas (Petitioner), giving details about death of father of Kailash Ravidas, but when his application was received and under what circumstances he was recommended for being appointed on compassionate ground. The District Magistrate, vide letter dated 22nd July 1987 justified the action of appointment of petitioner stating the fact that petitioner was appointed on 24th April 1990 and his case is beyond the purview of Memo No.4735 dated 19th May 1992 whereas case of Parwej Alam was placed before the Committee on 18th August 1992 and 19th August 1992 and as such, the appointment of Alam will be attracted by letter dated 19th May 1992 and justified that application of Alam was rightly rejected on the ground that at the time of death of his father, he was minor and attained majority after quite long time. The Deputy Secretary, Administrative and Personnel Department, considering the facts and materials on record, vide letter dated 16th June 1998 addressed to the District Magistrate, Nalanda stated that Sri Govind Ravidas, father of Kailash Ravidas had died on 15th October 1977 at that time his age was hardly nine years and after nine years, he has attained majority and, as such, his case is barred by the period, as mentioned in the Circular, as such, the case of petitioner was wrongly considered. In view of aforesaid letter the Committee in its meeting dated 18th September 1998 has withdrawn the appointment of the petitioner. 6. In this case, petitioner has submitted that his appointment was in accordance with law, as he had filed an application within the period of 2 years, as per the Circular in this regard, and the Circular dated 19th May 1992 is not applicable to the present case as the same cannot be given retrospective effect which has been explained by the District Magistrate, Nalanda himself. If it is accepted, the whole action of the respondents is illegal. 7. In contra, the State Government submits that it is not an undisputed fact that the petitioner was nine years old when his father died and at the relevant time, only two years’ period was prescribed for filing application for compassionate appointment. If it is accepted, the whole action of the respondents is illegal. 7. In contra, the State Government submits that it is not an undisputed fact that the petitioner was nine years old when his father died and at the relevant time, only two years’ period was prescribed for filing application for compassionate appointment. It also appears from the record that the earlier application filed by petitioner for compassionate appointment is not available on the record and the petitioner managed the whole affair and got his appointment which is against the law. He has further submitted that if a person who was minor on the day of death of his father or mother, does not attain majority within the prescribed time, provided in the scheme, thereafter his consideration for appointment is completely dehors to the rules. It has been submitted any application dehors to scheme of compassionate appointment is completely illegal and violates Articles 14 and 16 of the Constitution of India. 8. Learned counsel for the petitioner, in support of his contention, relied on the following judgments: 1999(1) PLJR 491(Rajesh Kumar v. State of Bihar) 2006 (4)PLJR 45 (Bivekanand Singh v. State of Bihar). 2010(3) PLJR 201 (Manoj Kumar Mahto v. Bihar State Road Transport Corporation. 2010(1) PLJR 425 (Keshav Kumar Ssingh v. Bhar State Electricity Board). 2010(4)PLJR 473 (Sunil Kumar v. State of Bihar). Basically learned counsel for the petitioner has raised the point that petitioner has continued in service for more than eight years so it is presumed in law that the authorities acquiesced all the irregularities in compassionate appointment. Another point he has raised is that the age of the petitioner will be relevant on the date of consideration of his application and a thing which is settled cannot be unsettled. 9. Learned counsel for the State in support of his contention, has relied on the judgments as follows: (1994)4 SCC 138 (Umesh Kumar Nagpal v. State of Haryana). (1998)6 SCC 165 (State of M.P. v. Dharam Bir). 2003(2) PLJR 27 (State of Bihar v. Prashant Kr. Sharma) 2012(1) PLJR 19 (Dharmendra Brahmchari v. State of Bihar). 10. Point has been raised that compassionate appointment cannot be granted after lapse of reasonable period, that to the period prescribed in the Scheme. The employment on compassionate ground is not a vested right which can be exercised at anytime in future. Sharma) 2012(1) PLJR 19 (Dharmendra Brahmchari v. State of Bihar). 10. Point has been raised that compassionate appointment cannot be granted after lapse of reasonable period, that to the period prescribed in the Scheme. The employment on compassionate ground is not a vested right which can be exercised at anytime in future. Prime object is to enable the family to tied over financial crisis which family was facing due to death of sole bread winner and the appointment cannot be claimed or offered after lapse of time after the crisis is over. The compassionate appointment under Scheme can be given within time of the scheme. The idea is that compassionate appointment cannot be created as third source of appointment. 11. It is no longer res integra that 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 be able to meet the crisis that a job is to be offered to the eligible member of the family. Appointment on compassionate ground cannot be a source of appointment. It is well settled no appointment can be made dehors the Rule. 12. Here is not the question of giving employment to the petitioner, rather the question is as to whether the termination of service of the petitioner is justified after long period in a situation service was obtained on compassionate ground. Petitioner has taken a point that after appointment the petitioner was confirmed in service but without giving any show cause or notice, his services were terminated which has not been disputed by the learned counsel for the State. Petitioner has continued in service for eight long years and during that period, he was confirmed also. Petitioner has taken a point that after appointment the petitioner was confirmed in service but without giving any show cause or notice, his services were terminated which has not been disputed by the learned counsel for the State. Petitioner has continued in service for eight long years and during that period, he was confirmed also. It was the boundened duty of the authority before dispensing with the services of the petitioner, at least it was required that he should have been given a show cause and he was required to be heard in the matter, as the petitioner was visited with civil consequence. The Hon’ble Supreme Court and this Court repeatedly held that if any person is visited with civil consequence in that circumstance, at least a show cause was to be given but in the present case no such action has been taken by the authority. It is a fact that the petitioner is a member of Scheduled Caste and remained in service for 8 years and during that period his services of petitioner was found to be satisfactory and he was confirmed also. But it is also a fact that when his father died, he was merely 9 years old and according to the Scheme only two years’ period was provided for making application and on adding two years, his age comes to only 11 years at the relevant time. As this Court is not deciding the case on merit, but leaving it to the authority to decide afresh and the order of termination is, accordingly, quashed with liberty to respondents to give notice/show cause, on consideration of his explanation, the authority may take decision in accordance with law .While passing the order, the authority must assign reasons while coming to any conclusion. 13. At this juncture, learned counsel for the petitioner has argued that petitioner has worked during the period November 1998 till December 1999. If it is so, petitioner will be entitled to the salary for the period he actually worked. 14. With the aforesaid observation and direction, the case is disposed of. However, it is expected that the authority will dispose of the matter within six months from the date of receipt/production of copy of this order.