Patna High Court
The High Court Of Judicature At ... vs Srawan Kumar on 9 February, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.127 of 2022
In
Civil Writ Jurisdiction Case No.123 of 2021
======================================================
1. The High Court of Judicature at Patna through Registrar General.
2. The Registrar General, Patna High Court, Patna.
3. The Registrar (Administration), Patna High Court, Patna.
4. The District and Sessions Judge, Kishanganj.
5. The Administration in- charge, Civil Courts, Kishanganj.
... ... Appellant/s
Versus
1. Srawan Kumar, S/o Late Chandra Shekhar Singh, Resident of Mohalla -
Purana Khagara, Ward No. 20, P.O., P.S. and District- Kishanganj.
2. The State of Bihar, through the Principal Secretary General, Administration
Department, Bihar, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Piyush Lall, Advocate
For the Respondent No. 1 : Mr. Pankaj Kumar Sinha, Advocate
: Mr. Rabi Bhushan, Advocate
: Ms. Rakhi Kumari, Advocate
For the State : Dr. Mankeshwar Tiwari, Advocate
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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE SATYAVRAT VERMA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 09-02-2023
Heard Mr. Piyush Lall, the leaned Advocate
for the appellant/High Court of Judicature at Patna and Mr.
Pankaj Kumar Sinha for respondent No. 1.
2.) The State is represented by Dr.
Mankeshwar Tiwari.
Patna High Court L.P.A No.127 of 2022 dt.09-02-2023
3.) The mother of respondent No. 1 had died
in harness on 29.01.2016. The respondent No. 1,
thereafter, had made an application for being considered
for appointment on compassionate ground on 10.03.2016.
4.) The decision with respect to such
application was taken on 20.11.2021, which was further
modified by order dated 23.11.2021.
5.) The rejection of the request of
respondent No. 1 was primarily on the ground that no
vacant position is available for accommodating any person
on grounds of compassion.
6.) Be it noted that the Administration of the
High Court of Patna had been hitherto following the
practice of the State of reserving 5% of the total
sanctioned strength in a district for compassionate
appointment.
7.) The State practice of keeping 5%
reserved for compassionate appointment was later done
away with and now, there is no cap over such percentage
Patna High Court L.P.A No.127 of 2022 dt.09-02-2023
and such appointments would depend upon the exigency of
the situation. Nonetheless, when 5% Rule was in currency
in the State Administration, the High Court in its
Administrative side took a decision on 04.01.2016 that
compassionate appointment shall be made only on 3% of
the posts/ sanctioned strength in the district. It so
happened that one Vikram Kumar Shrivastava, whose
father had died in harness on 28.08.2018, had applied for
being granted appointment on compassionate ground.
Similarly, one Chandan Kumar Singh also had made such
application in whose case, his father had died on
23.02.2012.
8.) With respect to them, there was an
instruction from the High Court that the rules which were
prevalent at the time of death, shall be applicable while
considering their cases for compassionate appointment and
they were, ultimately, granted appointment on
compassionate grounds, but only after 04.01.2016, i.e.,
the date when the High Court, in its Administrative side,
Patna High Court L.P.A No.127 of 2022 dt.09-02-2023
decided that henceforth, the compassionate appointment
shall be only to the extent of 3% on the entire sanctioned
strength.
9.) With the appointment to the aforenoted
persons namely, Vikram Kumar Shrivastava and Chandan
Kumar Singh on compassionate grounds, the total number
of compassionate appointees rose to seven. Since the
occasion for respondent No. 1 to make a request for
compassionate appointment arose only after 04.01.2016,
as her mother had died on 29.01.2016, the case of the
petitioner had to be decided in terms of the directives of
the High Court dated 04.01.2016 (3% of the sanctioned
strength).
10.) For the paucity of any vacancy as noted-
above, the respondent No. 1 was not offered appointment,
but that decision was taken much later, i.e., on
20.11.2021, which was modified on 23.11.2021.
11.) It was under these circumstances that
the respondent No. 1 had preferred a writ petition seeking
Patna High Court L.P.A No.127 of 2022 dt.09-02-2023
a direction against the respondents (appellants herein) to
appoint him on compassionate ground against Class-IV
post.
12.) The learned Single Judge appears to
have construed that the earlier appointments of Vikram
Kumar Shrivastava and Chandan Kumar Singh were made
in compliance of the policy of the High Court dated
04.01.2016, and therefore held such appointments to be
bad as the decision of the High Court dated 04.01.2016
could not have had any retrospective operation.
13.) There appears to be some
miscommunication from the side of the appellants/High
Court that such appointments were made by giving
retrospectivity to the decision dated 04.01.2016.
14.) The fact of the matter is, which becomes
evident from the communication made by the Registrar
General to the concerned District Judge that in case of
Vikram Kumar Shrivastava and Chandan Kumar Singh, the
relevant date would be the death of their respective
Patna High Court L.P.A No.127 of 2022 dt.09-02-2023
fathers and the law or the principle applicable at that time,
only would apply. Those were times when a quota of 5%
was maintained for giving appointment on compassionate
grounds.
15.) Thus, factually speaking, the leaned
Single Judge based his decision on a premise which is non-
existent.
16.) What the learned Single Judge has held
and rightly so that the relevant scheme prevalent on the
date of demise of the employees is to be made applicable
and subsequent scheme cannot be looked into. [Refer to
State of The Madhya Pradesh and ors vs. Ashish Awashthi
(Civil Appeal No. 6903 of 2021); The State of Madhya
Pradesh and ors vs. Baalendu Yadav (Civil Appeal No.
6904 of 2021); Indian Bank and ors vs. Promila and Anr.
(2020 (2) SCC 729) and The State of Madhya Pradesh
and ors vs. Amit (Srivas 2020 (10) SCC 496)] .
17.) The proposition postulated by the
learned Single Judge cannot be questioned.
Patna High Court L.P.A No.127 of 2022 dt.09-02-2023
18.) There are two relevant dates when the
consideration is for granting compassionate appointment;
one being the date of death in the family and the other
being the date on which consideration is being made for
granting such compassionate appointment. The second
date may vary, but the first date remains constant. The
general principle of law is that the application of the
scheme cannot depend upon a variable factor which could
be for various/myriad reasons.
19.) However, in the peroration of the
impugned judgment, which directs the High Court
Administration to consider the case of respondent No. 1 in
the context of the two other appointments, referred to
above, not having been made in legal manner, cannot
stand the scrutiny of law as it is not based on correct set
of facts. The two earlier appointments, referred to above,
were on the basis of the relevant scheme and principle
applicable at that time and not in compliance of the High
Court's decision dated 04.01.2016.
Patna High Court L.P.A No.127 of 2022 dt.09-02-2023
20.) As on date, the case of the respondent
No. 1 was dismissed on account of non-availability of
vacancy and there are seven appointees on compassionate
ground in the sanctioned strength of 104 employees in the
concerned district.
21.) The order passed by the leaned Single
Judge, therefore, cannot be sustained in the eyes of law to
the extent that it has held the appointment of Vikram
Kumar Shrivastava and Chandan Kumar Singh to be not
legally sustainable on the ground that rules cannot be
given retrospectivity.
22.) The appeal, thus, stands allowed and
disposed of accordingly.
23.) Looking at the totality of the
circumstances, we deem it appropriate to direct the High
Court Administration to consider the case of the
respondent No. 1, in case there is any vacancy available
for grant of compassionate appointment as a decision to
reject the application of the respondent No. 1 had been
Patna High Court L.P.A No.127 of 2022 dt.09-02-2023
taken in the year 2021. We are conscious of the fact that
a new Rule namely, Bihar Civil Court Officers and Staff
(Recruitment, Promotion, Transfer and Other Service
Conditions) Rules, 2022 has been promulgated, which now
provides for 5% cap in compassionate appointments, but
that would also have a prospective operation.
24.) Interlocutory application/s, if any, also
stands disposed of.
(Ashutosh Kumar, J)
(Satyavrat Verma, J)
Praveen/Gaurav-
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