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2012 DIGILAW 712 (PAT)

Fulendra Prasad v. State of Bihar

2012-05-02

RAVI RANJAN

body2012
ORDER I have heard learned counsel for the petitioner and the State and have perused the records of this case. 2. Through this application the petitioners seek employment on compassionate ground as well as other reliefs mentioned in paragraph no. 1 thereof being dependants of some of deceased persons who had been killed in the Shankarbigha carnage in the year 1999 as an assurance was given by the then Chief Minister for providing compensation and a Government job to one person of each of the families of the victims. 3. Learned counsel for the petitioners has placed reliance upon a circular/policy-decision of the State Government as contained in letter no. A/Vi.-2610/96 dated 9th August, 2000 addressed to all the Divisional Commissioners and the District Magistrates of the State of Bihar. It is submitted that in the aforesaid circular, apart from grant of compensation of rupees fifty thousand, employment in Class IV on compassionate ground to one member of the victims’ family has been assured. It is submitted that subsequently there was another communication by the State Government to all the Divisional Commissioners as well as the District Magistrates dated 2nd of January, 2001 clarifying and revising the earlier circular, however, in that revised policy also, the provision of grant of employment to one person from the families of the victims in Class IV on compassionate ground was retained. However, it is contended that even though the loss of life of several persons including the family members of the petitioners in Shankarbigha carnage is admitted but despite several attempts made and several representations having been filed in view of the assurance given by none other than the then Chief Minister of the State of Bihar, offer of employment in government to one of the members of the victim family, i.e. the petitioners, is still elusive. Learned counsel for the petitioners fairly admitted at the time of hearing of this writ application that the compensation at the rate of rupees one lac has already been granted to the petitioners in consonance with the revised policy. Thus, he had confined this writ application only for direction to the State authorities to provide employment in Class IV to the petitioners being the dependants of the victims of the aforesaid occurrence. 4. A counter affidavit and two supplementary counter affidavits have been filed on behalf of the State. 5. Mr. Thus, he had confined this writ application only for direction to the State authorities to provide employment in Class IV to the petitioners being the dependants of the victims of the aforesaid occurrence. 4. A counter affidavit and two supplementary counter affidavits have been filed on behalf of the State. 5. Mr. Pushkar Narain Shahi, learned Additional Advocate General No. XIV, submitted that though the unfortunate occurrence and the fact that the petitioners are dependants of the victims of the Shankarbigha carnage are not in dispute but at the time of the occurrence the policy of the State Government as contained in letter no. 1701 dated 21st September, 1987 was applicable and according to that circular the dependants of the victims who have been killed are entitled only for rupees twenty thousand by way of compensation. There is no provision for grant of employment to such dependants. Learned counsel submits that the petitioners cannot claim relief on the basis of a circular dated 9th August, 2000 which was a subsequent revision of policy as the same cannot be held to be effective from a retrospective date. That apart, the aforesaid circular came under scrutiny of this Court in C.W.J.C. No. 5808 of 1997 (Dharam Shila Kuer Vs. State of Bihar and others) reported in 2002(3) Patna Law Journal Reports, 497. It is contended that in the aforesaid judgment, the relevant sub-paragraphs (d) and (e) of paragraph no. 1 of the circular, which had empowered the Chief Minister to announce a decision to grant employment to the dependants of the victims of terrorist/extremist attack or caste riot, etc. as per circular dated 9th August, 2000, have been held to suffer from the vice of conferring excessive and uncontrolled discretion in the hands of a single individual and, thus, offend Article 14 of the Constitution and as a consequence thereof have been held to be void and inoperative. The aforesaid decision was challenged in L.P.A. No. 860 of 2002. However, during the course of hearing of the aforesaid appeal, the Division Bench of this Court on various dates had granted time to the State to issue a revised circular in compliance of the direction of the writ Court and while disposing of the appeal vide order dated 01.05.2009 the Division Bench has held that the aforesaid observations clearly imply that there is no merit in that appeal. However, instead of dismissing the appeal the Division Bench had tried to monitor the same so that after taking care to delete the invalid part of the circular a modified policy decision would be issued by the State but the same could not be done. The appeal had ultimately been dismissed by recording the assurance given by learned counsel for the State on the basis of letter dated 11th of December, 2008 that as soon as the policy decision is taken in the matter a revised circular containing transparent and uniform rules would be issued without any delay. Learned counsel pointed out that prior to filing of the aforesaid appeal another circular contained in letter no. C/C.I.Pole-3801/2001-2544 dated 05.09.2001 came into existence clarifying the stand of the State for grant of compensation as well as employment to the dependants of the victims. However, it is submitted that in view of the decision of this Court in Dharam Shila Kuer (supra) and the observations of the Division Bench in L.P.A. No. 860 of 2002 the State Government has come up with a new policy which is contained in Annexure E dated 17.02.2010 and Annexure F dated 20th of December, 2010 to the supplementary counter affidavit. In the new circular it has been clarified that in view of the lack of legal validity in the policy of the State Government for providing employment to the dependants of the victims of the occurrence as aforesaid and honouring the mandate of Article 14 of the Constitution, such recommendation or assurance for grant of employment would have to be held invalid. Thus, it is contended that in any view of the matter, the petitioners are not entitled for employment on compassionate ground. 6. I find force in the submission made on behalf of the State. Thus, it is contended that in any view of the matter, the petitioners are not entitled for employment on compassionate ground. 6. I find force in the submission made on behalf of the State. Even if it is assumed that, despite of the fact that the occurrence was of the year 1999 and in the circular existing at that point of time there was no provision of granting such employment, however, the same was later on revised by incorporating such provision and since the matter of the petitioners remained pending, the subsequent revised circular could be held to be applicable in the facts and circumstances of the case, the relevant provisions thereof having already been declared to be inoperative and void and offending the provisions of Article 14 of the Constitution by this Court in Dharam Shila Kuer (supra) coupled with the fact that in the subsequent policy of the State Government contained in the circular of 2010, the provisions for grant of employment have been omitted, such relief as claimed by the petitioners cannot be granted. Thus, the writ application fails on this point. 7. So far the issue of grant of compensation to the petitioners is concerned, learned counsel for the petitioners has already informed this Court that it has already been granted to them taking into consideration the revised policy of the State Government up to their satisfaction. Thus, this issue does not require further consideration. Other reliefs have not been pressed by learned counsel for the petitioners at the time of hearing of this writ application. 8. Accordingly, this writ application stands dismissed.