Ajay Kumar Chaupal v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.17608 of 2023 ====================================================== Ajay Kumar Chaupal Son of Late Dhaneshwar Das, Resident of MohallaGautam Nagar, Gangjala, P.S.- Saharsa, District- Saharsa. ... ... Petitioner/s

Versus

1.

The State of Bihar Bihar.

2.

The Director, Land Acquisition and Rehabilitation, Water Resources Department, Govt. of Bihar, Patna.

3.

The Special Land Acuisition Officer, Kosi Planning, Saharsa (erstwhile Purnea).

4.

The Establishment Deputy Collector, Collectorate, Purnea. 5.

The District Magistrate-cum-President, District Compassionate Committee, Purnea.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr. Bindhyachal Singh, Sr. Adv.

Mr.Vipin Kumar Singh For the Respondent/s :

Mr.Amit Prakash (Ga13) ====================================================== CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR ORAL ORDER 09-10-2025 Heard the parties.

2. The present writ application has been filed on behalf of the petitioner for the following reliefs:- I. For issuance of appropriate writ/order/direction in the nature of Mandamus thereby directing the Respondent Authorities to appoint the Petitioner on the post of daftari (clerk) on the basis of compassionate appointment since the father of the petitioner died in harness while dispensing his duty as daftari in Special Land Acquisition Office, Purnea on 06.12.1999.

II. For issuance of appropriate

2/9 writ/order/direction in the nature of Certiorari for quashing order no. 1343/Est. dated 11.11.2019 whereby and whereunder the Respondent Authorities rejected the claim of the petitioner for compassionate appointment on misconstrued interpretation of law and facts involved in the present matter.

III. For issuance of Writ in appropriate nature for direction to the Respondent Authorities especially the District Magistrate-cum-Chairman, District Compassionate Appointment Committee, Purnea for appointment of the Petitioner on Compassionate Ground as per the mandate of the law issued by Government of Bihar.

3. The father of the petitioner namely Dhaneshwar Das was in service in Government of Bihar who was working as Daftari in the office of Land Acquisition Officer, Purnea and he died in harness on 6.12.1999 and it is the contention of the petitioner that he may be appointed on the post of Daftari on the basis of compassionate appointment as the father of the petitioner has died in harness.

4. The learned counsel for the State has opposed the application of the petitioner and has relied upon a judgment of the Hon'ble Supreme Court in the case of Umesh Kumar Nagpal V/s State of Haryana & Ors [(1994) 4 SCC 138].

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5. I have heard and considered the submissions of the parties.

6. From the record, it appears that the father of the petitioner has married twice and the present petitioner is the son of the second wife namely Smt. Tara Devi. The petitioner has submitted a forged affidavit of Tarni Das. who was the son of first wife of the father of the petitioner, and hence the claim of the petitioner for grant of compassionate appointment has been cancelled as it is well settled by this Court that if the dependent of the deceased employee survived for long time then appointment of the dependent family member cannot be considered on compassionate ground.

7. The Hon'ble Supreme Court in the case of Umesh Kumar Nagpal (Supra) has held thus:

2.

The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. 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

4/9 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 justice and to meet certain contingencies.

One such exception is in favour of the dependants 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 dependants of the deceased who may be 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. What is further, 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. The posts in Classes III

5/9 and IV are the lowest posts in nonmanual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory.

The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.

3. Unmindful of this legal position, some Governments and public authorities have been offering compassionate employment sometimes as a matter of course irrespective of the financial condition of the family of the deceased

6/9 and sometimes even in posts above Classes III and IV. That is legally impermissible.

4. It is for these reasons that we have not been in a position to appreciate judgments of some of the High Courts which have justified and even directed compassionate employment either as a matter of course or in posts above Classes III and IV. We are also dismayed to find that the decision of this Court in Sushma Gosain v. Union of India [(1989) 4 SCC 468 : 1989 SCC (L&S) 662 : (1989) 11 ATC 878 :

(1989) 4 SLR 327] has been misinterpreted to the point of distortion. The decision does not justify compassionate employment either as a matter of course or in employment in posts above Classes III and IV. In the present case, the High Court has rightly pointed out that the State Government's instructions in question did not justify compassionate employment in Class II posts.

However, it appears from the judgment that the State Government had made at least one exception and provided compassionate employment in Class II post on the specious ground that the person concerned had technical qualifications such as M.B.B.S., B.E., B.Tech. etc. Such exception, as pointed out above, is illegal, since it is contrary to the object of making exception to the general rule. The only ground which can justify compassionate employment is the penurious

7/9 condition of the deceased's family.

Neither the qualifications of his dependant nor the post which he held is relevant. It is for this reason that we are unable to understand the following observations of the High Court in the impugned judgment:

"We are of the view that the extraordinary situations require extraordinary remedies and it is open to the Government in real hard cases to deviate from the letter and spirit of the instructions and to provide relief in cases where it is so warranted.

To hold as a matter of law that the Government cannot deviate even minutely from the policy of providing appointment only against Class III and Class IV posts, would be to ignore the reality of life these days.

It would be ridiculous to expect that a dependant of a deceased Class I Officer, should be offered appointment against a Class III or IV post.

While we leave it to the Government to exercise its discretion judiciously in making appointments to Class I or II posts on compassionate grounds,

8/9 yet a word of caution needs to be struck. It is to be noted that such appointments should be ordered in the rarest of rare cases, and in very exceptional circumstances. As a matter of fact, we would recommend that the Government should frame a policy even for such appointments."

5. It is obvious from the above observations that the High Court endorses the policy of the State Government to make compassionate appointment in posts equivalent to the posts held by the deceased employees and above Classes III and IV. It is unnecessary to reiterate that these observations are contrary to law. If the dependant of the deceased employee finds it below his dignity to accept the post offered, he is free not to do so. The post is not offered to cater to his status but to see the family through the economic calamity.

6.

For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future.

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, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.

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7. It is needless to emphasise that the provisions for compassionate employment have necessarily to be made by the rules or by the executive instructions issued by the Government or the public authority concerned. The employment cannot be offered by an individual functionary on an ad hoc basis.

8. The aforesaid view has also been reiterated in Jagdish Prasad v State of Bihar [(1996) 1 SCC 301] and in Eastern Coalfields Ltd. V/s Anil Badyakar [(2009) 13 SCC 112]

9. Considering the facts of the case and also in view of the judgment of the Hon'ble Supreme Court in the case of Umesh Kumar Nagpal (Supra), this writ petition stands dismissed.

(Sandeep Kumar, J) Vikas/- U