Bihar State Electricity Board vs Chadra Shekhar Paswan S/o Late Mote Mal Pashwan

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(Pat) 272

IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, BIRENDRA KUMAR, ANIL KUMAR UPADHYAY, JJ.
The Bihar State Electricity Board and Ors - Appellant
Versus
Chadra Shekhar Paswan S/o Late Mote Mal Pashwan and Ors - Respondent
Letters Patent Appeal No.1305 of 2013, 1608 of 2014 In Civil Writ Jurisdiction Case No.9329 of 2012 Civil Writ Jurisdiction Case No. 11445 of 2010
Decided On : 18-04-2019

Advocates:
Advocate Appeared:
For the Appellants : Mr.Anand Kumar Ojha, Adv. Mr. Chittranjan Sinha Mr. Shashi Shekhar Kr. Prasad Mr. Ashok Kumar Karn, Adv.
For the Respondent: Mr. Ajey Kumar, Adv.

Headnote:
Hindu Marriage Act, 1955 – Section 16 – Bihar Government Servant Conduct Rules, 1976 – Rule 23 – Compassionate Appointment – Void marriage – Circular No.937 dated 23.06.2005 of Personnel and Administrative Reforms Department, Government of Bihar by which decision had been taken that if a government servant marries while earlier marriage is subsisting without permission of government, then such spouse and ward of such spouse would be disentitled for appointment on compassionate ground – It is not the case of Board that father of respondent was ever charged or proceeded against for any misconduct while in service – It is also not the case of appellant that respondent is guilty of commission of bigamy or otherwise in eligible for appointment on account of public policy or breach of law – His application for appointment on compassionate ground was rejected by Board on the ground that he being son from second wife of deceased employee, whose marriage was void, cannot be appointed on compassionate ground – Once Section 16 of Hindu Marriage Act, 1955 regards a child born from a marriage entered into while earlier marriage is subsisting to be legitimate, State cannot exclude such a child by issuing circular or letter from seeking benefit of compassionate appointment – Such a condition of exclusion is arbitrary and ultra vires. (Paras 37 and 56)
Bihar Government Servant Conduct Rules, 1976 – Rule 23 – Compassionate Appointment – Circular No.937 dated 23.06.2005 of Personnel and Administrative Reforms Department, Government of Bihar by which decision had been taken that if a government servant marries while earlier marriage is subsisting without permission of government, then such spouse and ward of such spouse would be disentitled for appointment on compassionate ground – If second marriage was performed by government servant while in service, same would amount to misconduct committed in service – In case, an employee is proceeded against for such misconduct while in service and misconduct is proved, government may be free to take any action against such employee – In case of punishment awarded to government employee, same may be a relevant consideration for denying prayer for compassionate appointment of dependents of deceased employee – However, if no disciplinary proceeding is initiated for any misconduct against an employee while in service, after his death, his dependents cannot be denied compassionate appointment on the ground that while in service the employee had been guilty of misconduct – Claim for compassionate appointment to dependents of deceased employee can be denied only if employee had committed illegalities and misconduct is proved and he is punished during his service career – Impugned circular no. 937 dated 23.06.2005 quashed to the extent it prevents children of second wife from being considered for appointment on compassionate ground – Respondents directed to consider claim of respondent-writ petitioner for appointment on compassionate ground. (Paras 58 and 61)
Service Law – Compassionate Appointment – Appointment on compassionate ground is not a source of recruitment – It is exception to general rule – Purpose of compassionate appointment is to prevent destitution and penury in family of a deceased employee – Person seeking appointment on compassionate ground under a scheme has a right to be considered for appointment which needs to be decided on facts of each individual case keeping in mind as to whether applicant needs all stipulations of scheme including financial need and other requirements. (Para 60)

JUDGMENT :

ASHWANI KUMAR SINGH, J.

1. Since common question of law is involved in these cases, this order shall dispose of all these cases.

2. Under Clause 10 of the Letters Patent, LPA No. 1305 of 2013 has been preferred by the erstwhile Bihar State Electricity Board (for short ‘the Board’) against the order dated 13.08.2012 passed by the learned Single Judge in the writ petition bearing CWJC No. 9329 of 2012.

3. Under Clause 10 of the Letters Patent, LPA No. 1608 of 2014 has been filed by the State of Bihar challenging the aforestated order dated 13.08.2012 passed by the learned Single Judge in CWJC No. 9329 of 2012 to the extent whereby circular no.937 dated 23.06.2005 issued under the signature of the Joint Secretary, Personnel and Administrative Reforms Department, Government of Bihar by which a decision had been taken that if a government servant marries while earlier marriage is subsisting without the permission of the government, then such spouse and the ward of such spouse would be disentitled for appointment on compassionate ground.

4. Under Article 226 of the Constitution of India, CWJC No. 11445 of 2010 has been filed by the petitioner, a minor, under the guardianship of his mother Nanhki Devi for directing the respondents to appoint him on compassionate ground on the post of Child Police (Bal Arakshi) since his father, namely, Ganesh Rai died in harness on 23.02.2008. By way of an interlocutory application, vide I.A. No. 1924 of 2011, he has prayed for adding further relief challenging the aforesaid circular no. 937, dated 23.06.2005,

5. Facts giving rise to LPA No. 1305 of 2013 will serve the purpose for deciding all these cases. One Mote Mal Paswan, while working as a line man, Electric Supply Sub-Division, Phulparas, Madhubani died on 12.01.2007 due to cardiac arrest. He was initially married to one Jeevachi Devi, who gave birth to two sons. During subsistence of the first marriage, he entered into marriage with another lady Badamia Devi from whom he had four sons and two daughters. Since one of his sons Chandra Shekhar Paswan had passed Class-8 examination, all the heirs of Mote Mal Paswan collectively took a decision that he should apply for appointment on compassionate ground. In view of no objection certificate granted by all the heirs, Chandra Shekhar Paswan submitted his application for appointment on compassionate ground. He was informed vide letter no. 1023 dated 22.07.2011 issued by the Board that the Central Compassionate Committee in its meeting dated 08.04.2011 rejected his candidature for compassionate appointment in view of circular no. 937 dated 23.06.2005 issued by the Personnel and Administrative Reforms Department, Government of Bihar, Patna by which a decision had been taken that if a government servant gets married again during the life time of spouse without prior permission of the government then such spouse and off-spring of such spouse would be disentitled for appointment on compassionate ground.

6. Being aggrieved by the aforestated order dated 22.07.2011 Chandra Shekhar Paswan filed a writ petition vide CWJC No. 9329 of 2012 praying therein for setting aside the same as also for directing the respondents to consider his case afresh and appoint him without any further delay.

7. By way of an interlocutory application vide I.A. No. 4922 of 2012 in CWJC No. 9329 of 2012, he prayed for adding a further relief challenging the aforestated circular no. 937 dated 23.06.2005. He filed another interlocutory application vide I.A. No. 4610 of 2012 for adding the Joint Secretary Personnel and Administrative Reforms Department, Government of Bihar, Patna, as respondent no.9. Both the interlocutory applications were allowed by the learned Single Judge vide order dated 08.08.2012.

8. After hearing the parties, vide order dated 13.08.2012, the learned Single Judge allowed the writ petition bearing CWJC No.9329 of 2012. The operative portion of the order reads as under :-

“In the said circumstances, the impugned c