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2024 DIGILAW 563 (PAT)

Raj Kumar v. State of Bihar

2024-06-25

ALOK KUMAR PANDEY, P.B.BAJANTHRI

body2024
P. B. Bajanthri, J.—The appellant has assailed the order of the learned Single Judge dated 03.03.2021 passed in C.W.J.C. No. 19277 of 2019. Grievance of the appellant was that his father while working as a peon in the veterinary department died on 01.06.2017. In the light of compassionate appointment scheme dated 5th October, 1991, the appellant had submitted application seeking compassionate appointment on 12.02.2019. The same was turned down on the score that appellant’s brother was working as a Para Teacher in the State of Jharkhand in the Education Department. Therefore, his brother income suffice to manage the family. Hence, appellant is not entitled to compassionate appointment. The same has been taken note of by the learned Single Judge and proceeded to dismiss the C.W.J.C No. 19277 of 2019 on 03.03.2021. Hence, the present L.P.A. 2. Learned counsel for the appellant submitted that appellant is entitled to compassionate appointment only in terms of existing policy dated 5th October, 1991. It is submitted that respondents are relying on an internal communication of the State Government to all the District Magistrates dated 20th November, 2014 in which it is stated that in respect of other members of the family gainfully employed if any, it is required to be taken into consideration for the purpose of examining compassionate appointment claim. In the light of the aforementioned communication dated 20th November, 2014, the appellant’s claim has been declined. It is submitted that the aforementioned communication dated 20th November, 2014 has no source of power. The one and only policy decision existing as on the date of appellant’s claim in the year 2019 was 5th October, 1991. It is also submitted that 5th October 1991 policy of the State Government does not empower any authority to supplant the terms and conditions for the purpose of compassionate appointment. It is submitted that extraneous material is taken into consideration for the purpose of rejection of appellant’s claim for compassionate appointment, in particular 20th November, 2014 communication, which has been produced as Annexure-A to the counter affidavit. Therefore, the respondents were restricted to consider claim of the appellant only with reference to compassionate appointment policy issued on 5th October, 1991 and it has not been superseded by any other policy. 3. Per contra, learned counsel for the respondent resisted the aforementioned contentions and also supported the order of the learned Single Judge. Therefore, the respondents were restricted to consider claim of the appellant only with reference to compassionate appointment policy issued on 5th October, 1991 and it has not been superseded by any other policy. 3. Per contra, learned counsel for the respondent resisted the aforementioned contentions and also supported the order of the learned Single Judge. It is submitted that by means of a letter State Government is empowered to supplant the conditions for the purpose of compassionate appointment claim vide scheme dated 5th October, 1991. Therefore, there is no infirmity in the decision of the respondent as well as order of the learned Single Judge. 4. Heard learned counsel for the respective parties. Undisputed facts are that appellant’s father while working as a peon in veterinary department died on 01.06.2017. Appellant submitted application seeking compassionate appointment on 12.02.2019. The appellant’s brother was working as Para Teacher in the Education Department in the State of Jharkhand. The same has been taken into consideration for the purpose of declining compassionate appointment in the light of the compassionate appointment scheme dated 5th October, 1991 read with the letter dated 20th November, 2014. By means of a letter State Government cannot alter or supplant the conditions for the purpose of compassionate appointment under scheme of compassionate appointment dated 5th October, 1991. 5. By means of a letter State Government cannot alter or supplant the conditions for the purpose of compassionate appointment under scheme of compassionate appointment dated 5th October, 1991. 5. Be that as it may, it is necessary to reproduce copy of the letter dated 20th November, 2014, which reads as under:— lafpdk la[;k& 22 @ vuqñ& 05 @ 2014 lkŒizŒ fcgkj ljdkj lkekU; iz'kklu foHkkx izs"kd] ds'ko dqekj flag] ljdkj ds vij lfpoA lsok esa] ftyk inkfèkdkjh] oS'kkyhA ftyk inkfèkdkjh] iwñ pEikj.k] eksfrgkjhA ftyk inkfèkdkjh] lqikSyA ftyk inkfèkdkjh] x;kA iVuk& 15 ] fnukad ---------uoEcj] 2014 fo"k;% &vuqdEik fu;qfDr ds izlax esa ;kfpr ekxZn'kZuA izlax%& ftyk inkfèkdkjh oS'kkyh dk i=kad 646 fnukad& 30 - 7 - 2014 ,oa i=kad 647 fnukad& 30 - 07 - 2014 ftyk inkfèkdkjh] iwohZ pEikj.k] eksfrgkjh dk i=kad 163 fnukad& 17 - 09 - 2014 ftyk inkfèkdkjh] lqikSy dk i=kad 1148 & 2 @ LFkkŒ] fnukad& 10 - 09 - 2014 ftyk inkfèkdkjh] x;k dk i=kad XXI-1/ 14 - 1378 fnukad& 06 - 08 - 2014 egk'k;] mi;qZDr fo"k;d izlaxkèkhu i=ksa ds rgr ;kfpr ekxZn'kZu fuEukuqlkj nsus dk funsZ'k fn;k x;k gS& ftKklk ekxZn'kZu ¼d½ e`r ljdkjh dehZ ds vkfJrksa esa ls fdlh ds fu;ksftr jgus dh fLFkfr esa vU; vkfJrksa esa ls fdlh dks vuqdEik fu;qfDr dk ykHk fn;k tk ldrk gS vFkok ugha\ LkkekU; iz'kklu foHkkx ls fuxZr i=kad&1781 fnukad 10-05-2010 ds rgr ifjpkfjr ekuuh; iVuk mPp U;k;ky; }kjk lhñMCywñtsñlhñ lañ&6668@2003 rFkk lhñMCywñtsñlhñ lañ&7044@2003 esa ikfjr lesfdr vkns'k fnukad&27-07-2004 ds vkyksd esa lsokdky esa e`r ljdkjh dehZ ds vkfJrksa esa ls fdlh ds gainfull. fu;ksftr gksus dh fLFkfr esa mlds vU; vkfJrksa ds lkFk jgus vU;Fkk ugha jgus ds ckotwn vU; vkfJrksa esa ls fdlh dks vuqdEik fu;qfDr ds ykHk vuqekU; ugha gSA Gainfully fu;ksftr jgus ls rkRi;Z ,sls fu;kstu ls gS ftlls e`r ljdkjh lsodksa ds vkfJrksa dk Hkj.k Hkks"k.k gks ldsA ¼[k½ ykirk ljdkjh lsodksa ds vkfJrksa dh vuqdEik fu;qfDr ds lacaèk esaA Ykkirk ljdkjh lsodksa ds vkfJrksa dks vuqdEik ds vkèkkj ij fu;qfDr dh vuqekU;rk bl foHkkx ls fuxZr ifji=k la[;k&7146 fnukad&31-10-2008 ds rgr dh xbZ gSA ¼x½ v"Be mÙkh.kZ egknfyr ljdkjh lasodksa ds vkfJrksa dks vuqdEik ds vkèkkj ij fu;qfDr dh vuq'kalk dh tk ldrh gS vFkok ugha\ lsokdky es e`r egknfyr ljdkjh lsodks ds vkfJrksa dh 'kS{kf.kd ;ksX;rk ds lacaèk esa fu.kZ; bl foHkkx ls fuxZr ifji=k la[;k&10073 fnukad&18-12-2008 ds vkyksd esa fy;k tkuk gSA ¼?k½ usiky }kjk fuxZr 'kS{kf.kd ;ksX;rk ,oa vU; izek.k i= rFkk usikyh ukxfjd dks vuqdEik fu;qfDr dk ykHk fn;s tkus ds lacaèk esaA Uksikyh ukxfjd dks ljdkjh lsok esa fu;qfDr dh vuqekU;rk fu;qfDr foHkkx ¼lEizfr lkekU; iz'kklu foHkkx½ ls fuxZr izfji=k la[;k 7312 fnukad&30-05-1966 dh dafMdk 03 ds vkyksd esa dh xbZ gSA usiky }kjk fuxZr 'kS{kf.kd ,oa vU; izek.ki=ksa dk lR;kiu usiky ds lacafèkr laLFkkvksa ls rFkk usiky }kjk fuxZr 'kS{kf.kd izek.ki=ksa dh lEiqf"V f'k{kk foHkkx] fcgkj] iVuk ls izkIr dh tk ldrh gSA ¼Ä½ vuqdEik ds vkèkkj ij pkSdhnkj@nQknkj ds in ij fu;qfDr gsrq 'kS{kf.kd ;ksX;rk ds lacaèk esaA PkkSdhnkj@nQknkj dk in lewg ^?k^ dk in gS vr% mudh 'kS{kf.kd ;ksX;rk ds lacaèk esa fu.kZ; fcgkj lewg ^?k^ ¼HkrhZ ,oa lsok 'krsZa½ la'kksèku fu;ekoyh] 2012 ds vkyksd esa fy;k tkuk gSA pw¡fd] pkSdhnkj@nQknkj dk iz'kklh foHkkx x`g ¼vkj{kh½ foHkkx gS] vr% bl lacaèk esa ekXkZn'kZu mDr foHkkx ls izkIr dh tk ldrh gSA uksV%&lkekU iz'kklu foHkkx ls fuxZr lHkh ladYiksa@ifji=ksa@vuqns'kksa dh izfr;k¡ bl foHkkx ds osclkbV ls izkIr dh tk ldrh gSA fo'oklHkktu gñ@& ¼ds'ko dqekj flag½ ljdkj ds vij lfpoA Kkikad%& 22@vuqñ&05@2014 lkñizñ 15783@iVuk&15] fnukad 19-11-2014 izfrfyfi%&ljdkj ds lHkh foHkkx@foHkkxk?;{k@izeaMyh; vk;qDr rFkk lHkh ftyk inkfèkdkjh dks lwpuk ,oa vko';d dkjZokbZ gsrq izsf"krA gñ@& ljdkj ds vij lfpoA Taking note of gainfully employed read with the income issue, it is to be noted that appellant’s brother who was working as Para Teacher was stated to be earning meager consolidated pay of a sum of Rs. 10,000. 10,000. Definition of income is not forthcoming in the scheme of compassionate appointment dated 5th November 1991 and it has been supplanted by means of letter dated 20th November, 2014. However, income criteria is silent. In other words, there must be a specific income. Further, we have noticed that appellant’s father was working as a peon and his income was also in the lowest category of the post in the concerned department. 6. Learned counsel for the respondent submitted that whatever the norms existing as on the date of application for compassionate appointment was required to be taken into consideration for the purpose of considering application for compassionate appointment. On this point, learned counsel for the respondent relied on Hon’ble Supreme Court decision in the case of N.C. Santhosh vs. State of Karnataka, reported in (2020) 7 SCC 617 . The aforementioned principle is not assisting the respondent in the present case for the reason that by means of letter, State Government cannot alter or supplant the conditions in support of scheme of 5th October, 1991. In all fairness, the respondent-State should have issued executive order under Article 166 of the Constitution. The aforementioned letter dated 20th November 2014 cannot be treated as an executive order under Article 166 of the Constitution. Therefore, the respondents cannot take shelter under the letter dated 20th November, 2011 so as to deny compassionate appointment to the appellant. Further, letter dated 20th November, 2014 is not crystal clear as what would be the income and other things unless and until specific income criteria is laid down. The respondents cannot take shelter under letter dated 20th November, 2024. 7. Hon’ble Supreme Court in the case of Nair Service Society vs. Dr. T. Beermasthan, (2009) 5 SCC 545 , in para-48, has held as under:— “48. Several decisions have been cited before us by the respondents, but it is well established that judgments in service jurisprudence should be understood with reference to the particular service rules in the State governing that field. Reservation provisions are enabling provisions, and different State Governments can have different methods of reservation. There is no challenge to the Rules, and what is challenged is in the matter of application alone. Reservation provisions are enabling provisions, and different State Governments can have different methods of reservation. There is no challenge to the Rules, and what is challenged is in the matter of application alone. In our opinion the communal rotation has to be applied taking 20 vacancies as a block.” Taking note of the fact that respondents have taken note of letter dated 20th November 2014 for the purpose of rejection of the compassionate appointment and the same is not applicable to the case in hand unless and until there is a modification to the scheme of compassionate appointment dated 5th October, 1991 or there is any order or scheme in supersession of 5th October, 1991. These are the materials which have not been taken note of by the learned Singe Judge while rejecting the appellant’s writ petition. Accordingly, the appellant has made out a case so as to interfere with the order of the learned Single Judge dated 03.03.2021 passed in C.W.J.C. No. 19277 of 2019. In the result, C.W.J.C No. 19277 of 2019 filed on behalf of the appellant stands allowed. The concerned respondent is hereby directed to revisit the appellant’s case for compassionate appointment, if he is otherwise eligible necessary order of appointment shall be issued within a reasonable period of three months from the date of receipt/production of this order. The L.P.A. stands allowed.