Patna High Court
Avnish Kumar vs The State Of Bihar on 1 October, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13303 of 2022
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Avnish Kumar Son of Late Arvind Kumar Thakur, resident of Village -
Balapur, Post - Birsinghpur, Police Station - Kalyanpur, District - Samastipur.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Department of Health,
Bihar, Patna.
2. The Deputy Secretary to Government of Bihar, General Administration
Department, Bihar, Patna.
3. The Director-in-Chief, Health Services, Bihar, Patna.
4. The Collector-cum-Chairman, Compassionate Appointment Committee,
District - Samastipur.
5. The Additional Collector-cum-Senior Officer, District Establishment
Section, Samastipur.
6. The Civil Surgeon-cum-Chief Medical Officer, Samastipur, District -
Samastipur.
7. The Incharge Medical Officer, Primary Health Centre, Kalyanpur, District -
Samastipur.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Ajoy Kumar Chakraborty, Adv.,
Mr. Krishna Murari Rawt, Adv.
For the State : Mr. Aditya Nath Jha, AC to SC-18
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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
ORAL JUDGMENT
Date : 01-10-2024
An application for compassionate appointment was filed
by the petitioner on the death of his father in harness on 17th July,
2019. The petitioner is the younger son of the deceased. Elder
brother of the petitioner is employed in the Armed Forces. As he is
gainfully employed, the Compassionate Appointment Committee
directed the jurisdictional Civil Surgeon to make an enquiry and
Patna High Court CWJC No.13303 of 2022 dt.01-10-2024
submit a report as to whether the elder son of the deceased
employee being gainfully employed, compassionate employment
of the younger son was necessary.
2. The Civil Surgeon during enquiry found that the elder
son of the deceased employee lives separately and he does not
maintain any connection with the other members of the family.
The widow of the deceased and their two daughters are dependent
upon the younger son, the petitioner herein. By an order dated 9th
February, 2022, the Compassionate Appointment Committee of the
District sent the observation of the Committee to the General
Administration Department, Bihar for according opinion. By
Memo No. 5888, dated 18th April, 2022, issued by the Deputy
Secretary to the Government of Bihar, it was informed that the
petitioner is not entitled to get compassionate appointment. This
prompted the petitioner to file the instant writ petition.
3. It is pertinent to mention here that in view of the
opinion passed by the General Administration Department, the
Chairman-cum-District Magistrate of the Compassionate
Appointment Committee, rejected the claim of the petitioner vide
order dated 15th June, 2022. The said order is also under challenge
in the instant writ petition.
Patna High Court CWJC No.13303 of 2022 dt.01-10-2024
4. The learned Advocate on behalf of the respondents
refers to a Full Bench decision of this Court in the case of Niraj
Kumar Mallick & Others Vrs. The State of Bihar through
Secretary, Rural Works Department and Others., reported in
2018 (2) PLJR 951.
5. Referring to paragraph-48 of the decision, it is
submitted by the learned Advocate for the State Respondents that
in a case where one of the siblings of the deceased employee is
gainfully employed, other siblings is not allowed to get
compassionate appointment on the basis of Government policy,
even if the said sibling, who is gainfully employed, stayed
separately from other family members of the deceased employee.
6. The Full Bench was guided by the decision of the
Division Bench in the case of Vishal Kumar and the Hon'ble
Supreme Court in the case of Umesh Kumar Nagpal Vrs. State of
Haryana And Others, reported in (1994) 4 SCC 138.
7. On careful perusal of the decision of the Full Bench,
it appears to this Court that the Full Bench found that it had no
jurisdiction to take a contrary view to the policy decision of the
State while exercising the power of judicial review under Article
226 of the Constitution of India. At the same time the Full Bench
observed as follows:-
Patna High Court CWJC No.13303 of 2022 dt.01-10-2024
"48. So far as the clarification that
'gainfully employed' means such employment
from which the employed dependent of the
deceased government servant may provide
sustenance or can maintain other dependents is
concerned, it has to be looked at 'objectively'
and not 'subjectively'. It is not for the authority
considering the application for compassionate
appointment to find out as to whether the
dependent in employment is willing to take
care of other dependents or not. It would not be
his concern that the gainfully employed sibling
is actually providing sustenance to the other
dependents or not. Any argument that the
dependent in employment is not willing to
provide sustenance/maintenance to other
dependents or that the employed one is living
separately is beyond the scope and ambit of
consideration under the given scheme and
policy of the government and this Court sitting
in its writ jurisdiction under Article 226 of the
Constitution of India would not go into
enquiring the correctness of the facts so
pleaded before the Court. It is because the writ
Court is to be conscious of the judicial
pronouncements of the Hon'ble Apex Court
wherein it has been repeatedly held that a
Court has no power to ignore a provision to
relieve what it considers a distress resulting
from its operation. We have quoted paragraph
10 and 11 of the judgment of Asha
Ramchandra Ambedkar (supra) only to remind
us what the Hon'ble Apex Court has held in the
following words;-
Patna High Court CWJC No.13303 of 2022 dt.01-10-2024
"the Courts should endeavour to
find out whether a particular case in which
sympathetic considerations are to be weighed
falls within the scope of law. Disregardful of
law, however hard the case may be, it should
never be done".
8. In my considered view, the General Administration
Department did not consider the case of the petitioner objectively
as per the direction made by the Full Bench of this Court in
paragraph-48 of Niraj Kumar Mallick (supra). The General
Administration Department was under obligation to consider the
case of the petitioner objectively to find out as to whether
employment of the elder son of the deceased employee is
sufficient to maintain the entire family of the deceased:- secondly
whether the elder son of the petitioner actually maintains his
widow mother, brother and sisters and lastly whether objective
consideration of the issue enables the administration to take a
contrary view in favour of the petitioner or not.
9. For the reasons stated above, the impugned Memo
No. 5888, dated 18th April, 2022 and Memo No. 759, dated 15th
June, 2022, issued respectively by the Deputy Secretary,
Government of Bihar and the Chairman-cum-District Magistrate,
Samastipur, are quashed and set aside.
Patna High Court CWJC No.13303 of 2022 dt.01-10-2024
10. The Chairman-cum-District Magistrate, Samastipur
is directed to remit the file to the General Administration
Department within 30 days from the date of communication of this
order for fresh consideration of the issue, in the light of the
observation of the Full Bench in paragraph-48 of the Judgment,
quoted hereinabove and take fresh decision with regard to the
application filed by the petitioner for employment on
compassionate ground.
11. With the above direction, the instant writ petition is
disposed of.
(Bibek Chaudhuri, J)
pravinkumar/-
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