Patna High Court
Amrendra Kumar vs The State Of Bihar And Ors on 2 May, 2024
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16803 of 2012
======================================================
Amrendra Kumar S/O Late Shyam Sundar Singh R/O Village- Nandpura,
P.O.- Jat Dumri, P.S.- Punpun, District- Patna, At Present Posted as an
Account Clerk in the Office of Superintending Engineer (Monitoring) Circle,
Patna, Sinchai Bhawan, Patna
... ... Petitioner/s
Versus
1. The State of Bihar, Water Resources Department, Sinchai Bhawan,
Secretariat, Patna
2. The Under Secretary Water Resources Department, Government Of Bihar,
Sinchai Bhawan, Secretariat, Patna
3. The Chief Engineer Water Resources Department, Dehri-On-Sone, Rohtas
4. The Deputy Director Quality Control Pramandal, Water Resources
Department, Dehri, Rohtas
5. The District Magistrate, Arrah, Bhojpur
6. The Superintending Engineer Design, Ayojan And Monitoring Circle, Dehri,
Indrapuri, Rohtas
7. The Chief Engineer, Yojana And Monitoring, Sinchai Bhawan, Patna
8. The Superintending Engineer Irrigation Monitoring Circle, Patna, Sinchai
Bhawan, Patna
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Deepak Kumar Sinha, Advocate
For the Respondent/s : Mr.Krishna Kant Singh
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 02-05-2024
Heard learned counsel appearing on behalf of the
petitioner and the learned counsel for the Respondents/State.
2. In paragraph no.1 of the present writ petition, the
petitioner has claimed for following relief(s), which are re-
produced inter alia as follows : -
i. To command and direct the respondents to
quash the order dated 11.02.2011 issued under the
signature of Principal Secretary, Water Resources
Patna High Court CWJC No.16803 of 2012 dt.02-05-2024
2/17
Department, Government of Bihar, Patna,
subsequentially copy forwarded to this subordinate
Officer as well as to the petitioner vide Memo No.179
dated 15.02.20211 under the signature of Anand Kumar
Datta under Secretary of the Department on the same
paper by which representation of the petitioner and his
grievances regarding continuity of service from the date
of first Compassionate Appointment vide memo no.2102
dated 06.07.1996 by Chief Engineer, Dehri-On-Sone,
Rohtas of the same Department has been rejected in
compliance of the order dated 09.07.2010 in CWJC
No.302 of 2007 filed by the petitioner earlier.
ii. To command and directs the respondent that
after quashing the order dated 11.02.2011 passed by the
Principal Secretary further to quash order dated
17.02.1997
vide memo no.941 issued by the Secretary,
Water Resources Department, Patna by which earlier
order Memo no.2702 dated 06.07.1996 issued by the
Chief Engineer, Water Resources Department, Dehri-on-
Sone, Rohtas was cancelled in which the order of
appointment of petitioner was issued on the basis of
compassionate ground after recommendation of District
Compassionate Committee, Bhojpur and fresh order for
the same purpose was passed.
iii. To further command and direct the
respondents to counter the services of the petitioner from
6.7.1996 on which date the petitioner was joined the
service in the office of the quality Control Division,
Dehri- on- Sone, Water Resources Department, Dehri
and worked as on Accounts Clerk till date thereafter
confirmation was made.
iv. To further command and directs the
respondents to pay the dues salary which was stopped by
the Department without any independent order but
subsequently affected by the order dated 17.02.1997
issued by the Secretary, Water Resources Department,
Patna without giving any opportunity to the petitioner.
v. For any other appropriate relief/reliefs as
your Lordships may deem fit and proper.
Patna High Court CWJC No.16803 of 2012 dt.02-05-2024
3. Learned counsel appearing on behalf of the petitioner
submitted that the initial appointment dated 06.07.1996 of the
petitioner has been rejected in a mechnical manner merely on the
ground that the appointing authority (Chief Engineer) was not
competent to appoint the petitioner on compassionate ground,
allegedly who had instead of recommending the decision of the
District Compassionate Appointment Committee, vide letter
no.577 dated 11.04.1996, had issued appointment letter of the
petitioner for appointment on compassionate ground, vide Memo
No.2102 dated 06.07.1996. The petitioner joined on the same date.
The services of the petitioner were confirmed vide memo no.2699
dated 13.08.1996. The petitioner since the date he joined on the
post of Accounts Clerk, he had been continuously working on the
said appointment, which was cancelled by the Secretary, Water
Resources Department, Government of Bihar, vide memo no.941
dated 17.02.1997 and the petitioner was appointed afresh and
confirmed vide memo no.2187 dated 09.04.1997.
4. The fact being that the petitioner had been working
since his date of joining on 06.07.1996 and for the fact of the Chief
Engineer, who instead of informing the department on his own had
issued appointment letter but the same will not disentitle the
Patna High Court CWJC No.16803 of 2012 dt.02-05-2024
petitioner from his due salary, which was stopped by the
Department for no fault of the petitioner.
5. Per contra Mr. Krishna Kant Singh, learned counsel
for the Respondents/State submitted that the District
Compassionate Appointment Committee had recommended the
name of the petitioner for appointment on compassionate ground
on the post of Accounts Clerk, accordingly, the petitioner was
appointed as the Accounts Clerk by the Chief Engineer, Water
Resources Department, Dehri-on-Sone, vide memo no.2102 dated
06.07.1996 and thereafter, his appointment was cancelled and he
was re-appointed by the Secretary, Water Resources Department,
Government of Bihar, vide memo no.941 dated 17.02.1997 and the
petitioner was confirmed by the Department's letter no.2187 dated
09.04.1997 considering the initial appointment of the petitioner
made by the Chief Engineer, Water Sorceress Department, Dehri-
on-Sone on 06.07.1996 to be annulled. As such, the petitioner is
not entitled for payment of arrear of salary etc. for the period from
06.07.1996 to 17.02.1997. Being aggrieved, the petitioner filed
CWJC No.302/2007 for the similar relief(s) as prayed for in the
present writ petition, as such the present writ petition is barred by
the principle of res judicata.
Patna High Court CWJC No.16803 of 2012 dt.02-05-2024
6. The case of the petitioner for grant of continuity of
service was pending with the respondents, this Court, vide order
dated 09.07.2010 passed in CWJC No.302 of 2007 had granted
liberty to the respondents to consider the same and take
appropriate decision as early as possible. In compliance of the
order dated 09.07.2010, the claim of the petitioner for continuity in
service was rejected considering the fact that his initial
appointment was made by an incompetent authority, vide memo
no.179 dated 15.02.2011. Accordingly, the claim of the petitioner
for continuity in service and for payment of difference of salary
was considered by the competent authority.
7. Heard the parties.
8. Admitted facts of the case are that the father of the
petitioner was posted as Junior Engineer in the Water Resources
Department and while he was in service, he died in harness but no
information was given with respect to the "date of death" of the
father of the petitioner. The case of the petitioner was considered
by the District Compassionate Appointment Committee on
11.04.1996 and thereafter, the Chief Engineer, Water Resources
Department, Dehri-on-Sone instead of recommending the name of
the petitioner to the then Principal Secretary, Water Resources
Department, Government of Bihar with respect to appointment of
Patna High Court CWJC No.16803 of 2012 dt.02-05-2024
the petitioner on compassionate ground, issued appointment letter
dated 06.07.1996. A counter affidavit has also been filed but the
same is silent as to in what manner the appointment of the
petitioner was cancelled. Vide memo no.941 dated 17.02.1997
issued under the signature of the Secretary, Water Resources
Department, Government of Bihar do not contain the information
regarding any notice was issued to the petitioner before cancelling
his appointment. The Government Circular dated 15.02.2011
bearing memo no.179, which was in force at the relevant time
when the Committee had recommended the case of the petitioner
for considering him to be appointed on the post of Accounts Clerk,
vide letter no.517 dated 11.04.1996. The petitioner was appointed
on 06.07.1996 having recommended by the District
Compassionate Appointment Committee by the Chief Engineer,
Water Resources Department, Government of Bihar, which was
corrected by issuing fresh order of appointment dated 17.02.1997
by the competent authority.
9. Therefore, merely on the ground that the appointment
was made by an incompetent authority and allowing the petitioner
to continue in service on the applicable pay sale and having denied
from payment of arrear of the salary and other consequential
relief(s) from the initial date of appointment i.e. 06.07.1996 can
Patna High Court CWJC No.16803 of 2012 dt.02-05-2024
not be sustained. The case of the petitioner is covered by the
judgment of the Apex Court passed in the case of The Secretary,
State of Karnataka & Ors. Vrs. Umadevi Ors. reported in
(2006) 4 SCC 1.
10. The case of the petitioner is also covered by the
judgment of the Apex Court passed in Civil Appeal No.6159 of
2008 [Arising out of SLP (Civil) No.4725 of 2007] (The Steel
Authority of India Ltd. Vs. Madhusudan Das & Ors.), vide
Paragraph nos.15 & 16, which are re-produced hereinafter as
follows :
15. This Court in a large number of decisions has held
that the appointment on compassionate ground cannot
be claimed as a matter of right. It must be provided for
in the rules. The criteria laid down therefor,viz., that the
death of the sole bread earner of the family, must be
established. It is meant to provide for a minimum relief.
When such contentions are raised, the constitutional
philosophy of equality behind making such a scheme be
taken into consideration. Articles 14 and 16 of the
Constitution of India mandate that all eligible
candidates should be considered for appointment in the
posts which have fallen vacant. Appointment on
compassionate ground offered to a dependent of a
deceased employee is an exception to the said rule. It is
a concession, not a right.[See General Manager, State
Bank of India and Others v. Anju Jain (2008) 8SCC
475, para 33]
16. Mr. Braj K. Mishra, learned counsel appearing on
behalf of the respondent No. 1, however, placed strong
reliance on a decision of this Court in Balbir Kaur and
Another v. Steel Authority of India Ltd. and Others
[(2000) 6 SCC 493], wherein it was opined (SCC p.
504, Para 19) :
Patna High Court CWJC No.16803 of 2012 dt.02-05-2024
"19. Mr Bhasme further contended that family
members of a large number of the employees
have already availed of the Family Benefit
Scheme and as such it would be taken to be
otherwise more beneficial to the employee
concerned. We are not called upon to assess the
situation but the fact remains that having due
regard to the constitutional philosophy to decry
a compassionate employment opportunity
would neither be fair nor reasonable. The
concept of social justice is the yardstick to the
justice administration system or the legal
justice and as Roscoe Pound pointed out the
greatest virtue o flaw is in its adaptability and
flexibility and thus it would be otherwise an
obligation for the law courts also to apply the
law depending upon the situation since the law
is made for the society and whatever is
beneficial for the society, the endeavour of the
law court would be to administer justice having
due regard in that direction."
17. It may be that such a provision was made as a
measure of social benefit but it does not lay down a
legal principle that the court shall pass an order to that
effect despite the fact that the conditions precedent
therefor have not been satisfied.This aspect of the
matter has been considered by this Court in Umesh
Kumar Nagpal v. State of Haryana and Others
[(1994) 4 SCC 138] in the following terms (SCC pp.
139-40, Para 2) :
"2.... As a rule, appointments in the public
services should be made strictly on the basis of
open invitation of applications and merit. No
other mode of appointment nor any other
consideration is permissible. Neither the
Governments nor the public authorities are at
liberty to follow any other procedure or relax
the qualifications laid down by the rules for the
post. However, to this general rule which is to
be followed strictly in every case, there are
some exceptions carved out in the interests of
Patna High Court CWJC No.16803 of 2012 dt.02-05-2024
justice and to meet certain contingencies. One
such exception is in favour of the dependents of
an employee dying in harness and leaving his
family in penury and without any means of
livelihood. In such cases, out of pure
humanitarian consideration taking into
consideration the fact that unless some source
of livelihood is provided, the family would not
be able to make both ends meet, a provision is
made in the rules to provide gainful
employment to one of the dependents of the
deceased who maybe eligible for such
employment. The whole object of granting
compassionate employment is thus to enable
the family to tide over the sudden crisis. The
object is not to give a member of such family a
post much less a post for post held by the
deceased."
.......8. In National Institute of
Technology v. Niraj Kumar Singh, this
Court has stated the law in the following
terms: (SCC p.487, para 16)
'16. All public appointments must be in
consonance with Article 16 of the
Constitution of India. Exceptions carved out
therefore are the cases where appointments
are to be given to the widow or the
dependent children of the employee who
died in harness. Such an exception is carved
out with a view to see that the family of the
deceased employee who has died in harness
does not become a destitute. No
appointment, therefore, on compassionate
ground can be granted to a person other
than those for whose benefit the exception
has been carved out. Other family members
of the deceased employee would not derive
any benefit thereunder."
11. The case of the petitioner can be considered to be
under the category of irregular appointment. The petitioner can not
be allowed to suffer for the fault of the Chief Engineer. The
Patna High Court CWJC No.16803 of 2012 dt.02-05-2024
Authority concerned instead of having proceeding against the
Chief Engineer, who had issued the appointment letter. The
respondent having once accepted and having acted on the basis of
the recommendation of District Compassionate Appointment
Committee now can not turn around and put the petitioner to face
penal consequences.
12. A claim for compassionate appointment is not a
vested right and according to the scheme/policy, it is founded on
considering immediacy upon the death of the sole bread earner of
the family must be established that the dependents of an employee
are left without any means of livelihood and that unless some
source of livelihood was provided a family would not be able to
make both ends meet. Compassionate appointment and the right, if
any, is traceable from the scheme and no discretion is left with the
authorities to make compassionate appointment dehors the scheme
of operation. The object underlying a provision for grant of
compassionate employment is to enable the family of the
deceased employee to tide over the sudden crisis due to the death
of the bread earner which has left the family in penury and without
any means of livelihood. The Apex Court has summarized the
rationale behind the policy of compassionate appointment in the
case of State of W.B. v. Debabrata Tiwari, reported in 2023 SCC
Patna High Court CWJC No.16803 of 2012 dt.02-05-2024
OnLine SC 219 in Paragraph Nos.30, 31, 32 and 33, which is
re-produced hereinafter as follows :
"Policy of Compassionate Appointment : The
Rationale:
30. The majesty of death is that it is a great leveller for, it
makes no distinction between the young and the old or
the rich and the poor. Death being as a consequence of
birth at some point of time is inevitable for every being.
Thus, while death is certain, its timing is uncertain.
Further, a deceased employee does not always leave
behind valuable assets; he may at times leave behind
poverty to be faced by the immediate members of his
family. Therefore, what should be done to ensure that
death of an individual does not mean economic death for
his family? The State's obligation in this regard, confined
to its employees who die in harness, has given rise to
schemes and rules providing for compassionate
appointment of an eligible member of his family as an
instance of providing immediate succour to such a
family. Support for such a provision has been derived
from the provisions of Part IV of the Constitution of
India, i.e., Article 39 of the Directive Principles of State
Policy.
31. It may be apposite to refer to the following decisions
of this Court, on the rationale behind a policy or scheme
for compassionate appointment and the considerations
that ought to guide determination of claims for
compassionate appointment.
i. In Sushma Gosain v. Union of India, (1989) 4
SCC 468, this Court observed that in all claims
for appointment on compassionate grounds,
there should not be any delay in appointment.
That the purpose of providing appointment on
compassionate grounds is to mitigate the
hardship caused due to the death of the bread
earner in the family. Such appointment should,
therefore, be provided immediately to redeem
the family in distress.
Patna High Court CWJC No.16803 of 2012 dt.02-05-2024
ii. In Umesh Kumar Nagpal v. State of Haryana,
(1994) 4 SCC 138, this Court observed that the
object of granting compassionate employment
is to enable the family of a deceased
government employee to tide over the sudden
crisis by providing gainful employment to one
of the dependents of the deceased who is
eligible for such employment. That mere death
of an employee in harness does not entitle his
family to such source of livelihood; the
Government or the public authority concerned
has to examine the financial condition of the
family of the deceased and it is only if it is
satisfied that, but for the provision of
employment, the family will not be able to meet
the crisis, that a job is to be offered to the
eligible member of the family, provided a
scheme or rules provide for the same. This
Court further clarified in the said case that
compassionate appointment is not a vested right
which can be exercised at any time after the
death of a government servant. That the object
being to enable the family to get over the
financial crisis which it faces at the time of the
death of the sole breadwinner, compassionate
employment cannot be claimed and offered after
lapse of considerable amount of time and after
the crisis is overcome.
iii. In Haryana State Electricity Board v. Hakim
Singh, (1997) 8 SCC 85, ("Hakim Singh") this
Court placed much emphasis on the need for
immediacy in the manner in which claims for
compassionate appointment are made by the
dependants and decided by the concerned
authority. This Court cautioned that it should
not be forgotten that the object of
compassionate appointment is to give succour
to the family to tide over the sudden financial
crisis that has befallen the dependants on
account of the untimely demise of its sole
earning member. Therefore, this Court held that
it would not be justified in directing
appointment for the claimants therein on
compassionate grounds, fourteen years after the
Patna High Court CWJC No.16803 of 2012 dt.02-05-2024
death of the government employee. That such a
direction would amount to treating a claim for
compassionate appointment as though it were a
matter of inheritance based on a line of
succession.
iv. This Court in State of Haryana v. Ankur
Gupta, (2003) 7 SCC 704 : AIR 2003 SC 3797
held that in order for a claim for compassionate
appointment to be considered reasonable and
permissible, it must be shown that a sudden
crisis occurred in the family of the deceased as
a result of death of an employee who had served
the State and died while in service. It was
further observed that appointment on
compassionate grounds cannot be claimed as a
matter of right and cannot be made available to
all types of posts irrespective of the nature of
service rendered by the deceased employee.
v. There is a consistent line of authority of this
Court on the principle that appointment on
compassionate grounds is given only for
meeting the immediate unexpected hardship
which is faced by the family by reason of the
death of the bread earner vide Jagdish Prasad
v. State of Bihar, (1996) 1 SCC 301. When an
appointment is made on compassionate
grounds, it should be kept confined only to the
purpose it seeks to achieve, the idea being not
to provide for endless compassion, vide I.G.
(Karmik) v. Prahalad Mani Tripathi, (2007) 6
SCC 162. In the same vein is the decision of this
Court in Mumtaz Yunus Mulani v. State of
Maharashtra, (2008) 11 SCC 384, wherein it
was declared that appointment on
compassionate grounds is not a source of
recruitment, but a means to enable the family of
the deceased to get over a sudden financial
crisis.
vi. In State of Jammu and Kashmir v. Sajad
Ahmed Mir, (2006) 5 SCC 766 : AIR 2006 SC
2743, the facts before this Court were that the
government employee (father of the applicant
therein) died in March, 1987. The application
Patna High Court CWJC No.16803 of 2012 dt.02-05-2024
was made by the applicant after four and half
years in September, 1991 which was rejected in
March, 1996. The writ petition was filed in
June, 1999 which was dismissed by the learned
Single Judge in July, 2000. When the Division
Bench decided the matter, more than fifteen
years had passed from the date of death of the
father of the applicant. This Court remarked
that the said facts were relevant and material as
they would demonstrate that the family survived
in spite of death of the employee. Therefore, this
Court held that granting compassionate
appointment after a lapse of a considerable
amount of time after the death of the
government employee, would not be in
furtherance of the object of a scheme for
compassionate appointment.
vii. In Shashi Kumar, this Court speaking
through Dr. D.Y. Chandrachud, J. (as His
Lordship then was) observed that
compassionate appointment is an exception to
the general rule that appointment to any public
post in the service of the State has to be made
on the basis of principles which accord with
Articles 14 and 16 of the Constitution. That the
basis of the policy is that it recognizes that a
family of a deceased employee may be placed in
a position of financial hardship upon the
untimely death of the employee while in service.
That it is the immediacy of the need which
furnishes the basis for the State to allow the
benefit of compassionate appointment. The
pertinent observations of this Court have been
extracted as under:
"41. Insofar as the individual facts
pertaining to the Respondent are
concerned, it has emerged from the
record that the Writ Petition before the
High Court was instituted on 11 May
2015. The application for compassionate
appointment was submitted on 8 May
2007. On 15 January 2008 the Additional
Secretary had required that the amount
realized by way of pension be included in
Patna High Court CWJC No.16803 of 2012 dt.02-05-2024
the income statement of the family. The
Respondent waited thereafter for a
period in excess of seven years to move a
petition Under Article 226 of the
Constitution. In Umesh Kumar Nagpal
(supra), this Court has emphasized that
the basis of a scheme of compassionate
appointment lies in the need of providing
immediate assistance to the family of the
deceased employee. This sense of
immediacy is evidently lost by the delay
on the part of the dependent in seeking
compassionate appointment."
32. On consideration of the aforesaid decisions of this
Court, the following principles emerge:
i. That a provision for compassionate appointment
makes a departure from the general provisions
providing for appointment to a post by following
a particular procedure of recruitment. Since such
a provision enables appointment being made
without following the said procedure, it is in the
nature of an exception to the general provisions
and must be resorted to only in order to achieve
the stated objectives, i.e., to enable the family of
the deceased to get over the sudden financial
crisis.
ii. Appointment on compassionate grounds is not a
source of recruitment. The reason for making
such a benevolent scheme by the State or the
public sector undertaking is to see that the
dependents of the deceased are not deprived of
the means of livelihood. It only enables the family
of the deceased to get over the sudden financial
crisis.
iii. Compassionate appointment is not a vested right
which can be exercised at any time in future.
Compassionate employment cannot be claimed
or offered after a lapse of time and after the
crisis is over.
iv. That compassionate appointment should be
provided immediately to redeem the family in
Patna High Court CWJC No.16803 of 2012 dt.02-05-2024
distress. It is improper to keep such a case
pending for years.
v. In determining as to whether the family is in
financial crisis, all relevant aspects must be
borne in mind including the income of the family,
its liabilities, the terminal benefits if any,
received by the family, the age, dependency and
marital status of its members, together with the
income from any other source.
33. The object underlying a provision for grant of
compassionate employment is to enable the family of the
deceased employee to tide over the sudden crisis due to
the death of the bread-earner which has left the family in
penury and without any means of livelihood. Out of pure
humanitarian consideration and having regard to the
fact that unless some source of livelihood is provided, the
family would not be in a position to make both ends
meet, a provision is made for giving gainful appointment
to one of the dependants of the deceased who may be
eligible for such appointment. Having regard to such an
object, it would be of no avail to grant compassionate
appointment to the dependants of the deceased
employee, after the crisis which arose on account of
death of a bread-winner, has been overcome. Thus, there
is also a compelling need to act with a sense of
immediacy in matters concerning compassionate
appointment because on failure to do so, the object of the
scheme of compassionate would be frustrated. Where a
long lapse of time has occurred since the date of death of
the deceased employee, the sense of immediacy for
seeking compassionate appointment would cease to exist
and thus lose its significance and this would be a
relevant circumstance which must weigh with the
authorities in determining as to whether a case for the
grant of compassionate appointment has been made out
for consideration.
13. In the above mentioned facts and circumstances of
the case, I find that the recommendation of the petitioner by the
District Compassionate Appointment Committee has not been
questioned and the State Government/Department has also not
Patna High Court CWJC No.16803 of 2012 dt.02-05-2024
found the recommendation to be inconsistent in any manner with
the scheme of the compassionate appointment contained in Memo
No.941 dated 17.02.1997, relevant for the time. I find it proper to
quash the order dated in 11.02.2011 issued under the signature of
the Principal Secretary, Water Resources Department, Government
of Bihar, Patna communicated vide Memo No.179 dated
15.02.2011. As a consequence of which, I direct the respondent
authorities of the Water Resources Department to consider the
case of the petitioner afresh and take an appropriate decision well
within a period of six months from the date of production of the
copy of this order in support of his claim
14. With the above observation/direction, the present
writ petition stands disposed of.
(Purnendu Singh, J)
chn/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 06.05.2024
Transmission Date NA
