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2018 Supreme(Pat) 481
IN THE HIGH COURT OF JUDICATURE AT PATNA
Rajeev Ranjan Prasad, Rajendra Menon, Ravi Ranjan, JJ.
Niraj Kumar Mallick S/o Late Ashok Kumar Mallick & Ors. - Petitioners
Versus
The State of Bihar through Secretary, Rural Works Department & Ors. - Respondents
Civil Writ Jurisdiction Case Nos. 17143 & 19713 of 2016 with Letters Patent Appeal No. 1852 of 2016 In Civil Writ Jurisdiction Case No. 10236 of 2013
Decided On : 02-05-2018
Advocate Appeared:
For the Petitioners: Mr. Harsh Singh, Mr. Tej Pratap Singh, Mr. Ravi Shankar Choudhary, Mr. Santosh Kumar Singh, Mr. Yugal Kishore
For the State : Mr. Pushkar Narain Shahi, Mr. Manish Kumar
For the Respondents: Mr. Md. N.H. Khan, Mr. Sanjay Kumar, Mr. Virendra Prasad, Mr. Prabhakar Jha
Headnote:
Service Law – Compassionate Appointment – Appointment on compassionate ground is out of pure humanitarian consideration taking into consideration fact that unless some source of livelihood is provided, family would not be able to make both ends meet – Crucial test to decide as to whether a person is to be appointed on compassionate ground or not is to find out whether family has other sources of livelihood or not at relevant time to meet hardship – Once it is found that financial condition is sufficient to tide over crisis, then no appointment can be made on compassionate ground and question whether other spouse is continuing in service or has retired is wholly immaterial – It is a policy decision based on a sound public policy provided in clarification that where any of dependents of deceased government servant is gainfully employed, no other dependent would be entitled to get benefit of scheme of compassionate appointment – Government has come out with a policy that dependent who is gainfully employed is living separately from other dependents cannot be a reason to provide appointment and irrespective of that whether employed one lives together or separately other dependents would not get benefit of compassion. (Paras 41, 42 and 46)
Service Law – Compassionate Appointment – It is not for authority considering application for compassionate appointment to find out as to whether dependent in employment is willing to take care of other dependents or not – It would not be his concern that gainfully employed sibling is actually providing sustenance to other dependents or not – Any argument that dependent in employment is not willing to provide sustenance/maintenance to other dependents or that employed one is living separately is beyond scope and ambit of consideration under given scheme and policy of government – However, where it is found that employment of other sibling is of such a nature that it is not generating resources so as to make him able to provide both ends meet, for sustenance/maintenance to other dependents of deceased government employee and despite gainful employment of one of dependents but because of his poor income from such employment he is not in a position to provide two ends meet to other dependents, therefore they are on verge of starvation, destitution and penury, authorities of State would be liable to consider application of other dependent for appointment on compassionate ground – No other plea in any form whatsoever would be a ground to provide benefit of scheme of compassionate appointment – No error in impugned order rejecting application of petitioner(s) on the ground that their other siblings are in employment – Letters Patent Appeal as well as Writ Applications dismissed. (Paras 47 to 50)
Rajeev Ranjan Prasad, J.
Judges apply prior case law in the absence of Statute or create legal doctrines where the law is silent on a given set of facts. A common issue of law in similar set of facts has arisen for consideration in all these Writ Applications and the Letters Patent Appeal which have been clubbed together for consideration by the Full Bench. It relates to interpreting the policy decision of the State government in the matter of compassionate appointment under the scheme framed by the government whereunder guidelines and procedures for appointment to the dependents of a government servant dying in harness has been provided. Two different views expressed by the Hon’ble Division Bench of this Court have necessitated this reference.
2. The facts of the case briefly stated in these cases are as under:-
3. The writ-petitioner(s) happened to be the children of the deceased government servant, who died in harness, they applied for appointment on compassionate ground but their respective claims have been rejected by the respondents on the ground that their siblings are in government employment or are otherwise in service. The competent authorities of the State while considering their claim for appointment has rejected the same in the light of a clarification issued by the General Administration Department bearing no.15783 dated 19.11.2014 issued under the signature of the Additional Secretary to the Government, General Administration Department, Government of Bihar. In the present batch of cases we are concerned with only Clause ¼d½ of the clarification, therefore the whole consideration would centre around Clause ¼d½ alone.
4. The clarification is addressed to all the District Officers who were seeking guidelines while considering the application of those dependents of the deceased government servants who were seeking compassionate appointment even though the other children of the deceased government servant were duly employed. The clarification so issued by the General Administration Department is placed at Annexure-’A’ to the counter affidavit filed on behalf of the respondent no.2 in CWJC No.17143/16. In order to appreciate the terms and spirit of the clarification as contained in Clause ¼d½ to Annexure-A to the counter affidavit it would be apt to reproduce the same itself hereinbelow:-
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30-07-2014
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ftyk inkf/kdkjh] lqikSy dk i=kad 1148 & 2@ LFkk0 fnukad 10-09-2014
ftyk inkf/kdkjh] x;k dk i=kad XXI-1/14&1378 fnukad 06-08-2014
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lkekU; iz’kklu foHkkx ls fuxZr i=kad & 1781 fnukad 10-05-2010 ds rgr ifjpkfjr ekuuh; iVuk mPp U;k;ky; }kjk lh0MCyw0ts0lh la& 6668@2003 rFkk lh0MCyw0ts0lh la& 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 gainfully fu;ksftr gksus dh fLFkfr esa mlds vU; vkfJrksa ds lkFk jgus vU;Fkk ugha jgus ds okotwn vU; vkfJrksa esa ls fdlh dks vuqdEik fu;fqDr dk ykHk vuqekU; ugh gSA Gainfully fu;ksftr jgus ls rkRi;Z ,sls fu;kstu ls gS ftlesa e`r ljdkjh lsodksa ds vkfJrksa dk Hkj.k iks”k.k gks ldsA
¼[k½ ykirk ljdkjh lsodksa ds vkfJrksa dh vuqdEik fu;qfDr ds laca/k
