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2018 DIGILAW 941 (PAT)

DEEPAK KUMAR SINGH v. STATE OF BIHAR

2018-06-28

JYOTI SARAN

body2018
JUDGMENT : Jyoti Saran, J. Heard Mr. Prashant Kashyap, learned counsel for the petitioner and Mr. Rajeev Roy, GP-1 for the State. 2. With the consent of the parties the writ petition has been heard with a view to final disposal at the admission stage. 3. The petitioner is aggrieved by the order of the Compassionate Committee bearing Memo. No. 1151 dated 29.07.2015 presided by the District Magistrate, Siwan whereby the claim of the petitioner for compassionate appointment against the post of Chaukidar has been rejected inter alia on grounds that since the deceased Chaukidar has sons surviving him, the grand son cannot be given a compassionate appointment. 4. Facts as noted from the writ petition is that the grand father of the petitioner late Basisth Singh died in harness while serving as Chaukidar on 18.03.2009. Much prior thereto, a nomination in the form of Will was executed by the said Basisth Singh for appointment of the petitioner as a Chaukidar on his death by way of compassionate appointment. The Will is registered on 17.08.2007 and a copy of the same is enclosed at Annexure-2. It is drawing strength from the said nomination that after the death of Basisth Singh, the petitioner filed an application for appointment on compassionate grounds together with affidavits required, copies of which are enclosed at Annexure-3 series. The affidavits were also filed by the sons of late Basisth Singh relinquishing their rights in favour of the petitioner. The case of the petitioner came up for consideration before the Compassionate Committee chaired by the District Magistrate, Siwan and has been rejected by the order impugned dated 29.07.2015 hence the writ petition. 5. Mr. The affidavits were also filed by the sons of late Basisth Singh relinquishing their rights in favour of the petitioner. The case of the petitioner came up for consideration before the Compassionate Committee chaired by the District Magistrate, Siwan and has been rejected by the order impugned dated 29.07.2015 hence the writ petition. 5. Mr. Kashyap, learned counsel appearing on behalf of the petitioner has relied upon a Circular dated 20.12.1995 to submit that a right of grand son through daughter has been recognized by the respondent themselves for the purpose of compassionate appointment alongside the right vested in the other dependents and though a grand son from son was not mentioned but the issue came up for consideration before a co-ordinate bench of this Court in a case arising from C.W.J.C. No. 33 of 2007 (Gore Lal Paswan versus State of Bihar) and a co-ordinate Bench vide judgment and order passed on 04.07.2011 has held that a denial to a grand son on interpretation of the circular would be discriminatory for once the State recognizes a right of a grand son through the daughter, the same benefit cannot be denied to a grand son from the son. It is informed that the judgment and order of the co-ordinate Bench has been implemented and has not been appealed against, thus attaining finality on the issue. 6. It is thus the submission of Mr. Kashyap that in view of the relinquishment of the sons from such appointment as manifest from the affidavits and there being no prohibition in appointment of a grand son, in view of the legal position settled by this Court in the case of Gore Lal Paswan, the benefit of the circular dated 20.12.1995 has to be extended to the petitioner and the reasons so assigned by the Committee is not sustainable. 7. The arguments of Mr. Kashyap has been contested by Mr. Roy on a number of grounds. According to Mr. Roy late Mr. Basisth Singh was survived by 3 sons and thus the benefit of compassionate appointment would not have been bypassed to reach the grand son even by way of affidavit sworn by these people. The second objection raised by Mr. Kashyap has been contested by Mr. Roy on a number of grounds. According to Mr. Roy late Mr. Basisth Singh was survived by 3 sons and thus the benefit of compassionate appointment would not have been bypassed to reach the grand son even by way of affidavit sworn by these people. The second objection raised by Mr. Roy is that as per the admission of the sons present in the affidavit annexed at Annexure-3 series they are economically well up, which is also the admission of the father of the petitioner and thus in view of such admission, there is no occasion for a compassionate appointment. The third objection raised by Mr. Roy is in reference to the Circular dated 24.06.2011 of the Home (Police) Department to submit that the circular relied upon by the petitioner to canvass the case dated 20.12.1995 together with the other circulars have been cancelled and thus no benefit can be given to the petitioner relying upon the said circular. 8. I have heard learned counsel for the parties and I have perused the records. 9. The reasons assigned by the Committee to reject the claim of the petitioner for compassionate appointment is on taking note of the category of dependence as well by holding that since the deceased Chaukidar was survived by sons, the benefit cannot extended to the grand son. The second objection taken by the Committee is that no person can name his successor for the purpose of compassionate appointment. 10. To consider the objections taken by the Committee to reject the claim of the petitioner for compassionate appointment, I am persuaded to reproduce the intent of the Circular dated 20.12.1995 relied upon by the petitioner to enforce his claim. 10. To consider the objections taken by the Committee to reject the claim of the petitioner for compassionate appointment, I am persuaded to reproduce the intent of the Circular dated 20.12.1995 relied upon by the petitioner to enforce his claim. Paragraph 2 of the circular reads under : ^^¼2½ fdlh pkSdhnkj@nQknkj ds fnukad 1-1-1990 ds ckn vodk'k ÁkIr djus ij muds vkfJr D;k mudh iRuh ;k iq= ;k HkkbZ ;k Hkrhtk ;k ukrh dks pkSdhnkj ds in ij dsoy ,d ckj viokn Lo:i ck.M ysdj fu;qDr fd;k tk;sxkA nQknkj ds in ij lh/kh fu;qfDr ugha gksxh cfYd nQknkj ds in dks pkSdhnkj dks ÁksUufr nsdj gh Hkjk tk;sxkA lsokdky esa e`Rr nQknkj ds vkfJr ;Fkk mudh fo/kok iRuh ;k iq= ;k iq=h ;k Hkrhtk ;k HkkbZ ;k ukrh dks vuqdEik ds vk/kkj ij pkSdhnkj ds in ij fu;qfDr fd;k tk;sxkA x`g ¼vkj{kh½ foHkkx ds i=kad 1683 fnukad 19-11-1994 }kjk fuxZr vkns'k bl gn rd la'kksf/kr le>k tk;sxkA** 11. A plain reading of the circular insofar as the issue of compassionate appointment is concerned, would manifest that even though a category of dependents has been classified therein but there is no exclusionary clause to oust any of the dependents from the claim should there be no objection from the other dependents. The circular very well considers the widow, the son, the daughter, the nephew, the brother or a grand son from the daughter as a dependent for the purpose of compassionate appointment but neither any order of priority is expressed nor does the circular oust the grand child for such consideration even if the deceased Chaukidar is survived by his widow or his sons. 12. In view of such clear stipulations present in the circular, the decision of the Committee to deny the benefit to the petitioner simply because there are sons surviving the deceased employee, cannot be upheld. 13. The second objection raised by the Committee is in placing reliance on the Resolution bearing No.4668 dated 24.06.2011 which in turn withdraws the Circular dated 19.11.1994 along with other circulars which lists the dependents. 13. The second objection raised by the Committee is in placing reliance on the Resolution bearing No.4668 dated 24.06.2011 which in turn withdraws the Circular dated 19.11.1994 along with other circulars which lists the dependents. The Resolution has been enclosed by the respondents in their counter affidavit at Annexure-R/A. No doubt, vide Resolution dated 24.06.2011, the earlier circulars issued by the Department including the one dated 19.11.1994 as well the Circular dated 20.12.1995 at Annexure-1 has been withdrawn but the withdrawal of these Resolutions on 24.06.2011 cannot take away a right which came to be vested in the petitioner to claim such appointment much prior thereto, on the date of death of the deceased employee on 18.03.2009, in the light of the circular dated 20.12.1995 which was much in force on the said date. 14. The application by the petitioner on 13.07.2011 again cannot act prejudice to this right which is to be tested on the basis of the circular in force on the date of death of the employee in harness i.e. 18.03.2009. Reference in this regard is made to the judgment of a Supreme Court (Canara Bank versus M. Mahesh Kumar, (2015) 7 SCC 412 ) which though was a case of a bank employee but nonetheless settles the issue that it would be the Circular in force on the date on which death took place, which would govern the right of an appellant. 15. The third issue noted by the Compassionate Committee is that none can name his successor for purpose of compassionate appointment by way of a Will. In my opinion even if the deceased employee had named the petitioner to succeed him in the case of his death in harness, it only strengthens the case of the petitioner for such appointment and in no manner can act prejudice to the claim rather in view of the relinquishment expressed by the sons in the affidavit at Annexure-3 series, finds corroboration. 16. An objection was raised by Mr. Roy as to the economic status of the family of the petitioner for the purpose of compassionate appointment. Though objection is well taken but considering that none of the circulars issued by the State Government regulating compassionate appointments denies such right on economic grounds, the objection is rejected. 16. An objection was raised by Mr. Roy as to the economic status of the family of the petitioner for the purpose of compassionate appointment. Though objection is well taken but considering that none of the circulars issued by the State Government regulating compassionate appointments denies such right on economic grounds, the objection is rejected. The circular relied upon by the petitioner dated 20.12.1995 is no different and there is no restriction to a grant a compassionate appointment to an economically sound family. 17. The last of the issue which comes up for consideration is that while the circular dated 20.12.1995 recognizes the right of the grand son through daughter for a compassionate appointment, it does not specifically mention a grand son through the son for such purpose but then this issue is no more res integra rather the judgment of this Court in the case of Gore Lal Paswan enclosed at Annexure-5 concludes the matter and as mentioned by the Mr. Kashyap, not contested, has attained finality. 18. For the discussions so made above, the order of the Compassionate Committee bearing No. 1151 dated 29.07.2015 impugned at Annexure-8 cannot be upheld and accordingly quashed and set aside. The matter is remitted to the Compassionate Committee, Siwan chaired by the District Magistrate, Siwan to consider the claim of the petitioner afresh and for its disposal in accordance with law bearing in mind the observations above which decision be taken within a period of three months form the date of receipt/production of a copy of this order. 19. The writ petition is allowed.