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2013 DIGILAW 23 (PAT)

Sanoj Kumar v. State of Bihar

2013-01-08

S.N.HUSSAIN

body2013
ORDER This writ petition has been filed by the petitioner for directing the respondents to appoint the petitioner on compassionate ground against Class-IV post in Bihar State Electricity Board (hereinafter referred to as „the Board? for the sake of brevity) and for other ancillary reliefs. 2. It is not in dispute that the father of the petitioner, namely Bhola Mahto was working as untrained labour at Barun Electrical Sub-division, Aurangabad and while he was performing his duty on 18.02.1993 he died due to electric shock, leaving behind only a widow and a son, namely the petitioner who was minor at the time of his death. 3. I.A. No.7396 of 2012 has been filed by the petitioner for adding another relief challenging memo no.339 dated 07.10.2004 by which the Director (Personnel), Patna rejected the claim of petitioner for appointment on compassionate ground. Before that I.A. No.842 of 2007 had also been filed by the petitioner challenging order of the authorities vide letter dated 01.02.2005 by which the petitioner’s claim for appointment on compassionate ground was rejected. Considering the averments made by learned counsel for the parties and the materials on record, both the interlocutory applications are allowed and the reliefs claimed in the writ petition are modified by way of adding the aforesaid two more reliefs to the writ petition. 4. Learned counsel for the petitioner submitted that within the prescribed time, the mother of the petitioner filed an application for appointment of petitioner on compassionate ground stating that since her son was minor, he should be appointed immediately after attaining majority. Thereafter petitioner also filed an application dated 22.08.1997 after attaining majority as his date of birth was 05.03.1979 as per the Transfer Certificate dated 06.03.1990 given by the District Superintendent of Education, Aurangabad. The said application of the petitioner was forwarded on 24.08.1997 by the Electrical Executive Engineer, Aurangabad. 5. Learned counsel for the petitioner stated that vide letter dated 20.03.1998 the petitioner was directed to appear before the Medical Board where he was examined by Medical Board on 31.05.1999, whereafter the Medical Board gave its certificate dated 06.08.1999 finding the petitioner to be 15-17 years, whereafter the claim of petitioner was rejected on 07.10.2004 by the Director (Personnel), Patna as he was found to be minor even after five years from the date of death of his father in 1993. The said order was again communicated to the petitioner vide letter dated 01.02.2005. 6. Learned counsel for the petitioner averred that the Transfer Certificate was issued on 06.03.1990 by the District Superintendent of Education, Aurangabad clearly showing petitioner?s date of birth to be 05.03.1979 and hence the petitioner had attained majority on 05.03.1997 and had rightly filed his application for appointment on compassionate ground on 22.08.1997, which was within five years from the date of death of his father i.e. 18.02.1993. 7. Learned counsel for the petitioner argued that the aforesaid certificate was issued by a government authority, which was never set aside nor it was claimed to be forged and was never disbelieved, hence there was no occasion for calling a report from the Medical Board regarding the age of petitioner. In this connection, learned counsel for the petitioner relied upon a decision of a Bench of this court in case of Kamlanand Jha vs. The State of Bihar and Ors., reported in 2007 (1) P.L.J.R. 672 . 8. On the other hand, learned counsel for the respondents vehemently opposed the contentions of learned counsel for the petitioner and stated that according to Clause-9 of the Bihar State Electricity Board Service Regulations, 1976 (hereinafter referred to as “the Regulations” for the sake of brevity) the proof of age can be either matriculation certificate or birth certificate from the Registering Authority and in absence thereof the Medical Board has to decide the age of person concerned. Learned counsel for the respondents submitted that the certificate relied upon by learned counsel for the petitioner is clearly a forged one as on the upper portion thereof District Superintendent of Education is printed in bold letters, but on the lower portion signature of Principal is given but even that is without any seal. In the said circumstances the authorities had no option but to direct the petitioner for examination by the Medical Board. 9. Learned counsel for the respondents averred that the Medical Board was duly constituted in accordance with law and it thoroughly examined the petitioner on 31.05.1999 and submitted its report dated 06.08.1999 stating that on the date of examination the petitioner was between 15-17 years. If the petitioner was even considered to be 17 years on 31.05.1999, he would have attained majority in 2000, which was beyond five years from the admitted date of death of his father in 1993. If the petitioner was even considered to be 17 years on 31.05.1999, he would have attained majority in 2000, which was beyond five years from the admitted date of death of his father in 1993. 10. Learned counsel for the respondents claimed that according to Clause-2 of the Regulations, an application for compassionate appointment could be filed within five years from the date of death of his father only by a person who has already attained majority, but when the petition for appointment on compassionate ground was filed by the petitioner on 22.08.1997, he was not major as per the aforesaid report of the Medical Board and hence he was not eligible for either filing of such application or for being appointed. In the said circumstances the authorities had no option but to reject the application of the petitioner on 07.10.2004. 11. Learned counsel for the respondents asserted that in his application dated 13.12.2002 (Annexure-5) the petitioner had admitted that he was then 18 years of age but the said application was much beyond five years from the date of death of his father and as such the petitioner was not entitled to be appointed on compassionate ground. In this connection, learned counsel for the respondents relied upon two decisions; one of the Apex Court and the other of the Patna High Court in case of State of J&K and others vs. Sajad Ahmed Mir, reported in (2006) 5 Supreme Court Cases 766 and in case of Anil Kumar Singh and others vs. The State of Bihar and others, reported in 1993 (1) P.L.J.R. 414. 12. Considering the averments made by learned counsel for the parties and the materials on record it is quite apparent that the petitioner is relying upon the Transfer Certificate in which his date of birth has been shown to be 05.03.1979. From a bare perusal of the said certificate, it transpires that the said certificate is not a birth certificate rather it is merely a certificate of transfer from a middle school in the district of Aurangabad. At the top of the format, “District Superintendent of Education, Aurangabad” is printed but it is signed by a person who has been claimed to be the principal of some school, the name of which does not tally with the name of school at the top. At the top of the format, “District Superintendent of Education, Aurangabad” is printed but it is signed by a person who has been claimed to be the principal of some school, the name of which does not tally with the name of school at the top. In the said circumstances the said certificate does not appear to be reliable, specially in absence of any birth certificate from the Registering Authority. 13. A bare perusal of the relevant provisions of the Regulations shows that proof of age of any person can be either a matriculation certificate or a birth certificate from the Registering Authority, but since no such certificate had been produced by the petitioner, the Board was quite justified in directing the petitioner to appear before the Medical Board, whereafter the petitioner appeared in the Medical Board on 31.05.1999 without any objection and after due verification the Medical Board in its report dated 06.08.1999 found the petitioner to be 15-17 years of age, but the said report of the Medical Board has never been challenged by the petitioner before a court of law or before any authority for more than five years and only when the claim of petitioner was rejected on 07.10.2004 by the appropriate authority, namely the Director (Personnel), Patna and the order of rejection was communicated to the petitioner on 01.02.2005, then this writ petition was filed by the petitioner on 07.04.2005. 14. Even if the age of petitioner is taken to be the highest as given in the Medical Report, it will be only 17 years in the year 1999 and hence the petitioner was to attained majority in 2000. Furthermore, the petitioner in his own application dated 13.12.2002 submitted before the General Manager-cum-Chief Engineer of the Board had admitted that he was then 18 years of age, which shows that lower age of 15 years given in the Medical Report of 1999 was correct. These facts clearly show that petitioner did not attain majority up-till 18.02.1998 i.e. within five years from the date of death of his father (18.02.1993) and thus he had filed his application dated 22.08.1997 when he was still a minor and was not entitled to be appointed. These facts clearly show that petitioner did not attain majority up-till 18.02.1998 i.e. within five years from the date of death of his father (18.02.1993) and thus he had filed his application dated 22.08.1997 when he was still a minor and was not entitled to be appointed. Forwarding of the said application by any authority would not mean that the claim of petitioner and his date of birth had been accepted rather it was always subject to further and final verification by the appropriate authority as per the provisions of law. 15. So far the decision of Division Bench of this court relied upon by learned counsel for the petitioner in case of Kamlanand Jha (Supra) is concerned, it was a case in which the dependant had attained majority within five years from the date of death of his father, hence the said case law is not applicable to the facts and circumstances of this case. 16. Apart from the above circumstances, it is quite apparent that the mother of the petitioner had received retiral dues and was also getting pension after the death of her husband. Furthermore, a period of about two decades have passed and hence the immediate problem, which had forsaken the family in the year 1993, had passed much earlier. In this connection the Apex Court in case of State of J&K and others (supra) had specifically held as follows:- “11. We may also observe that when the Division Bench of the High Court was considering the case of the applicant holding that he had sought “compassion”, the Bench ought to have considered the larger issue as well and it is that such an appointment is an exception to the general rule. Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say “goodbye” to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution.” 17. A Division Bench of this court also in case of Anil Kumar Singh and others (supra) had held as follows:- “29. It has further to be borne in mind that by reason of the aforementioned circular letters not only the widow or the son but even the unmarried daughter and widowed daughter-in-law are entitled for consideration for appointment on compassionate ground. In that view of the matter, even if one of the dependants of the deceased family who is not eligible for appointments keeping in view of the age, the qualification and other considerations, one of the other dependants as mentioned in the said circular may be appointed on compassionate ground. It would not be, therefore, correct to say that only because the son was a minor, he could file an application for appointment even after attaining majority. In fact, if such an interpretation is given the same would frustrate the very object and purport of the policy decision of the State in as such as thereby no immediate relief to the family in distress can be provided. If any such application is entertained after a long delay, by that time not only the existing vacancies may be filled up by regular appointment, but also other cases of similar nature may arise where grant of immediate relief by providing employment to the dependant of the deceased employees may crop up. What is material for consideration is the time when the relief is to be granted to a family in distress and not to reserve a job for one of the dependants. 30. What is material for consideration is the time when the relief is to be granted to a family in distress and not to reserve a job for one of the dependants. 30. It is pertinent to note that in Bijay Kumar Sinha’s case reported in 1991 Vol.1 PLJR 316, the vires of the circular, dated 12-7-1977 was upheld holding; “The impugned circular, however, is not a bald preference to the dependants of the employees of the State Government. It has not gone to the descent of the persons preferred for appointment. It has taken notice of a sudden demise resulting in cessation of source which had earned bread for them. It has emphasized that those who fall in an income group below Rs.6000/- per year and lost their bread earner should be preferred. It is not a general concession to all the dependants of the deceased employees. It is confined to the selection to one to compensate the loss by giving employment to him. If one bread earner is there, another is not allowed to enter in the preference. The circular is thus, one which has conferred a preferential right to appointment to the dependants of a deceased employee who died in harness by identifying the economic backwardness and also the loss which unless compensated shall force the family to go further down.” 18. In the aforesaid facts and circumstances, this court does not find any merit in this writ petition, which is accordingly dismissed.