Harendra Paswan v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.476 of 2020 ====================================================== Harendra Paswan Son of Feku Paswan, Residen of Village Basaha, P.O. Madhuban Basaha, P.S. Bajapatti, District-Sitamarhi. ... ... Petitioner/s

Versus

1.

The State Of Bihar through the Principal Secretary, Department of Home, Government of Bihar, Old Secretariat, Patna.

2.

The District Magistrate-Cum-Collector, Sitamarhi. 3.

The Superintendent of Police, Sitamarhi.

4.

The Sub-Divisional Officer, Pupari, District Sitamarhi. 5.

The Circle Officer, Bajapatti, District-Sitamarhi. ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr. Naresh Prasad For the Respondent/s :

Mr. Shailesh Kumar, AC to GP-5 ====================================================== CORAM: HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL ORDER 04-07-2022 Heard learned counsel for the petitioner and learned State counsel.

Hard-copy of the petitioner's reply has been submitted today. The same be taken on the record.

The petitioner is aggrieved by rejection of his claim for appointment as Chowkidar in place of his father. The brief background is that the Chowkidari Cadre Rules, 2006 came to be amended by an amendment, namely, Bihar Chowkidari Cadre (Amendment) Rules 2014. Rule 5 (vii) stood amended by incorporating the following proviso: "परतुक- (क) चचौककीददार सरवर्ग कक कर्गचदारकी अपनकी वदार्गक्य

2/7 सकवदाननवृनत्ति ककी नतनथि सक कर सक कर एक रदाह पूवर्ग कक प्रभदाव सक स्वनचच्छिक सकवदाननवृनत्ति एवर चचौककीददार पद पर अपनक ददारदा नदानरत नकसकी आनश्रित कको ननयकोनजित करनक कक नलिए आवकदन कर सककरदा। (ख) सदारदान्य प्रशदासन नवभदार ददारदा सरय-सरय पर अवरदानरत न्यपूनतर एवर अनरकतर उम्र सकीरदा सरबररकी प्रदावरदान उन पर लिदारपू रहकरदा। (र) स्वनचच्छिक सकवदाननवृनत्ति कक पशदात् ननयतुक्त व्यनक्त कक आनश्रित कको इस परन्तुक कदा लिदाभ अनतुरदान्य नहहीं हकोरदा। (घ) स्वनचच्छिक सकवदाननवृनत्ति कदा इचच्छितुक चचौककीददार सरवर्ग कक व्यनक्त कको सकवदाननवृनत्ति ककी अपनकी इनचच्छित नतनथि सक कर सक कर एक रदाह पूवर्ग अपनक पदस्थिदापन नजिलिदा कक नजिलिदा पददानरकदारकी कको अपनदा आवकदन दकनदा हकोरदा।"

The admitted position, based on the said amendment, is that an opportunity was given to the employees in the Chowkidari cadre to nominate a dependent for appointment in their place. Such right, however, is subject to the condition that employee was required to make an application nominating his dependent, while seeking voluntary retirement with effect from a date one month prior to his due date and compulsory date of retirement. The application for this purpose was also required to

3/7 be made at least one month before the date with effect from which the employee sought voluntary retirement. It is not in dispute that the timeline specified has not been complied with. In fact admitted position is that though the due and compulsory date of petitioner's father's retirement was 30.04.2018, the application, nominating the petitioner and seeking voluntary retirement, was made as late as on 18.04.2018. Petitioner's counsel, however, submits that the petitioner's claim could not have been rejected for non-compliance of the timeline specified under the Rules and a more lenient view was required to be taken. Specific reliance is placed on a communication dated 27.07.2021 under Memo No. 5034 issued by the Secretary to the Government of Bihar in the Home Department.

Relevant extract of the communication reads as follows:- "श्रिकी नकीतकीश नरश्रिदा, रदाननकीय सदस्य नबहदार नवरदान सभदा कक पतदाक-235 / 2021. नदननांक- 13072021 ददारदा स्वनचच्छिक सकवदाननवृनत कक उपरदात आनश्रिततों कको च्छिकोटक-च्छिकोटक कदारणतों सक ननयतुनक्त नहहीं हकोनक कक नबन्दतु कको सरजदान रमें लिदातक हतुए अनभयदान चलिदाकर लिनमबत आवकदनतों कको ननष्पदानदत करदानक कदा अनतुरकोर नकयदा रयदा हव। इस सरबरर रमें नवभदारकीय पतदाक-5444 नदननांक- 22.06.

4/7 कको दपूर करतक हतुए स्पष्ट नदशदा-ननदर्देश पनरचदानरत नकयदा रयदा। अनतुरकोर हव नक नवभदार ददारदा पनरचदानरत वनणर्गत पनरपत कक आलिकोक रमें स्वनचच्छिक सकवदाननवृनत अनभयदान चलिदाकर ऐसक रदारलिको कको ननष्पदानदत करनक कदा कष्ट नकयदा जिदाय।"

Petitioner's counsel has also placed reliance on decision of Division Bench of this Court in the case of Kamlanand Jha vs. the State of Bihar & others reported in 2007

(1) PLJR 672 as well as an unreported decision of this Court in the case of Kamleshwari Paswan vs. the State of Bihar & others passed in C.W.J.C. No. 59 of 2016.

Both the decisions relied upon by the petitioner's counsel are in respect of claims made by petitioners for compassionate appointment. That is the most striking distinguishing feature. The right being claimed in the instant proceedings is based on an amendment to the Rules giving an opportunity to the employees in the cadre for nominating their dependents for appointment in their place, and not in respect of compassionate appointment, under a different scheme. Having observed so, this Court would further observe that in the case of Kamleshwari Paswan (supra), the petitioner therein had filed his claim for compassionate appointment within

5/7 the time specified. This is evident from relevant extract of the said judgment which reads as follows:- "In fact once the petitioner had filed his claim for compassionate appointment in the year 2012, it was for the office to have assisted the petitioner in completing the necessary formalities. In fact it is in furtherance of the affidavit so filed by the petitioner that the matter has progressed and a formal recommendation was made on 20.6.2014 which recommendation of the Circle Officer containing all the details forms part of the proceedings so produced by Mr. Amrritesh and is also a part of the counter affidavit. It is this belated action in completion of formalities, entirely attributable to the respondents, which is assigned a ground to takeaway the right vested in the petitioner for compassionate appointment.

It is not a case where the petitioner has woken from a slumber and it is also not a case where the claim is beyond the stipulated period.

6/7 Appointment Committee to reject the case of the petitioner."

In the case of Kamlanand Jha (supra), the fact is identical as is evident from paragraph 7 of the said judgment, which clearly records that the petitioner therein had applied within the time specified. Paragraph 7 of the judgment reads as follows:- "7. This question is already settled by now by various judgments of this Court. A Bench of this Court dealing with similar situation held in the case of Brajendra Prasad Poddar v. The State of Bihar [1990 (2) Patna Law Journal Reports 668.] , that cause of a dependent, whose father died-in-harness, should not be frustrated on technical grounds and keeping in view the benevolent legislation of the State Government, liberalised view should be taken for providing employment on compassionate ground. It is further held that the dependent on attaining the age of majority would be entitled to be considered even though he may be minor at the time of death of his father. The question of under-age would be no ground to take a decision to frustrate the cause. The facts of the case at hand is almost identical to

7/7 that of Brajendra Prasad Poddar (supra)."

In the instant case, admittedly, the petitioner's father did not apply within the time specified. For the above noted reasons, the case of the petitioner is not in any way covered by the decisions relied upon by the petitioner's counsel. In so far as the communication dated 27.07.2021issued by the home department is concerned, it is clear from a bare perusal of the same, taken note of above, that it only talks about pending applications and for expeditious disposal of the same. The said communication has come into existence much after rejection of the petitioner's claim, which from the records it is clear was not pending on 27.07.2021. The petitioner cannot, therefore, assert any claim based on the communication dated 27.07.2021.

No case is made out for issuance of any direction in favour of the petitioner, in view of the admitted fact that petitioner's application is not in compliance with the Chowkidari Cadre Rules as amended in 2014.

Writ application is dismissed.

(Madhuresh Prasad, J) SUMIT/- U