Patna High Court
Seraj AnwarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- PARTHA SARTHY
Holding
The 3% ceiling restriction cannot be applied retroactively; the scheme in force at the date of death governs, and the order rejecting the compassionate appointment is set aside.
Summary
The petitioner, the eldest son of a civil court clerk who died in service on 28‑Nov‑2015, applied for appointment on compassionate ground. His application was rejected by the District and Sessions Judge on the basis of a 3% ceiling on compassionate appointments, a rule introduced after his father's death. The petitioner challenged the order, arguing that the scheme in force at the date of death should apply, citing Supreme Court precedents. The High Court held that the 3% restriction could not be applied retroactively and that the applicable scheme was the one prevailing on the date of death. Consequently, the order rejecting the petitioner's compassionate appointment was set aside and the respondents were directed to consider his application within two months. The writ petition was allowed.
Issues considered
- The applicability of the 3% ceiling restriction on compassionate appointments to a claim arising before the rule was introduced
- Whether the scheme in force on the date of the employee's death governs the claim for compassionate appointment
- Whether the order of the District and Sessions Judge rejecting the petitioner's application is liable to be quashed
- Whether a writ of mandamus can be issued directing the appointment on compassionate ground
Subjects
- compassionate appointment
- writ of mandamus
- 3% ceiling restriction
- scheme applicability
- death in service
- civil court clerk
- high court order quash
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.25683 of 2019
======================================================
Seraj Anwar Son of Late Anwar Ali Resident of Mohalla-Idgah, Post Office
and Police Station-Dehri-on-Sone, District-Rohtas.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary Personal and
Administrative Reforms Department, Govt. of Bihar, Patna
2. The Secretary, Department of Law, Govt. of Bihar, Patna
3. The Registrar General, Patna High Court, Patna.
4. The Compassionate appointment Committee, through its Secretary, Civil
Court, Aurangabad.
5. The District and Sessions Judge, Aurangabad.
6. The Registrar, Civil Court, Aurangabad.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. S. M. Ashraf, Advocate
Mr. Kamlendra Pd. Singh, Advocate
For the H.C : Mr. Sanjeev Kumar, Advocate
For the State : Mr. Md. Raisul Haque (SC-10)
======================================================
CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
Date : 05-02-2026
Heard learned counsel for the parties.
2. The petitioner has filed the instant application for
the following relief (s) :-
“1. (i) For quashing of the order No. 33/2018
dated 20.04.2018 issued by the District and
Sessions Judge (Respondent No. 5). Aurangabad
communicated to the petitioner vide Memo No.
562/2018 dated 20.04.2018 whereby and where-
under the claim of the petitioner for appointment
on compassionate ground has been rejected
(Annexure-8).
(ii) For the issuance of a writ in the nature of
mandamus directing the respondents, especially
respondent Nos. 3, 4 and 5 to appoint the
Patna High Court CWJC No.25683 of 2019 dt.05-02-2026
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petitioner on compassionate ground, whose
father died in harness on 28.11.2015.
(iii) For the issuance of any other
writ/order/direction as may be considered fit and
proper in the facts and circumstances of the
case.”
3. The case of the petitioner in brief is that the father
of the petitioner who was posted and working as Clerk in
Civil Court at Aurangabad died in harness on 28.11.2025. The
petitioner being the eldest son filed his application for
appointment on compassionate ground on 18.5.2016 enclosing
with his application all the relevant documents. Not having
been appointed, the petitioner filed CWJC no.3136 of 2018,
which was disposed of by order dated 12.3.2018 (Annexure-6)
directing the petitioner to file a representation before the
District and Sessions Judge, Aurangabad, which was directed
to be disposed of within the time fixed.
4. It is submitted by learned counsel for the
petitioner that pursuant to the direction of this Court as
contained in order dated 12.3.2018, the petitioner filed an
application on 26.3.2018 which was rejected by order dated
20.4.2018 passed in Order no.33 of 2018 by the District &
Sessions Judge, Aurangabad. It is this order which has been
challenged by the petitioner in the instant writ application
with the further prayer for directing the respondents to appoint
Patna High Court CWJC No.25683 of 2019 dt.05-02-2026
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the petitioner on compassionate ground.
5. It is submitted by learned counsel for the
petitioner that the main ground for rejection of the petitioner’s
application for his appointment on compassionate ground, as
evident from the order impugned, is that a restriction was
imposed by the High Court that appointment on
compassionate ground shall be considered with the restriction
that the total strength of compassionate appointees would not
exceed 3% of the sanctioned strength of the cadre in which
such appointment is being considered. It is submitted that
though the limit was raised to 5%, the respondents erred in
applying this said restriction for the reason that the same
would not be applicable in case of the petitioner for the reason
that the father of the petitioner died on 28.11.2015 and the
scheme prevalent on the date of death would applicable.
Reliance is placed on the judgment of the Hon’ble Supreme
Court in the case of Indian Bank & Ors. vs. Promila & Anr;
(2020) 2 SCC 729.
6. Learned counsel for the respondents opposes the
writ application and submits that the application of the
petitioner was considered by the respondent concerned and
taking into consideration all aspects of the matter, a detailed
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order giving sound reasons has been passed. There is no
illegality in the order impugned and as such the writ
application be dismissed.
7. Heard learned counsel for the parties and perused
the material on record.
8. The relevant facts in brief are that the father of
the petitioner who was working as a Clerk in the Civil Court,
Aurangabad having died in harness, the petitioner applied for
appointment on compassionate ground which came to be
rejected by the order impugned on 20.4.2018 mainly for the
reason that the restriction imposed in appointment on
compassionate ground to the extent that the strength of
compassionate appointees would not exceed 3% of the
sanctioned strength of the cadre in which such appointment is
being considered would cross in case the petitioner was
appointed.
9. It may be observed here that the said restriction
of imposing the ceiling limit of 3% was introduced some time
in January, 2016. It is also not in dispute that the father of the
petitioner died on 28.11.2015.
10. In the case of Indian Bank (supra) relied on by
learned counsel for the petitioner, the Hon’ble Supreme Court
Patna High Court CWJC No.25683 of 2019 dt.05-02-2026
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has held as follows :-
“3. There has been some confusion as to the
scheme applicable and, thus, this Court directed
[Indian Bank v. Promila, (2020) 2 SCC 735] the
scheme prevalent, on the date of the death, to be
placed before this Court for consideration, as the
High Court [Promila v. Indian Bank, 2008 SCC
OnLine P & H 2267] appears to have dealt with
a scheme which was of a subsequent date. The
need for this also arose on account of the legal
position being settled by the judgment of this
Court in Canara Bank v. M. Mahesh
Kumar [Canara Bank v. M. Mahesh Kumar,
(2015) 7 SCC 412 : (2015) 2 SCC (L&S) 539] ,
qua what would be the cut-off date for
application of such scheme.
4. It is trite to emphasise, based on numerous
judicial pronouncements of this Court, that
compassionate appointment is not an alternative
to the normal course of appointment, and that
there is no inherent right to seek compassionate
appointment. The objective is only to provide
solace and succour to the family in difficult times
and, thus, the relevancy is at that stage of time
when the employee passes away.
5. An aspect examined by this judgment [Canara
Bank v. M. Mahesh Kumar, (2015) 7 SCC 412 :
(2015) 2 SCC (L&S) 539] is as to whether a
claim for compassionate employment under a
scheme of a particular year could be decided
based on a subsequent scheme that came into
force much after the claim. The answer to this
has been emphatically in the negative. It has also
been observed that the grant of family pension
and payment of terminal benefits cannot be
treated as a substitute for providing employment
assistance. The crucial aspect is to turn to the
scheme itself to consider as to what are the
provisions made in the scheme for such
compassionate appointment.”
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11. In view of the facts and circumstances stated
herein above, in the opinion of the Court, the respondents
have erred in placing the restriction of 3% which was
introduced for the first time several months after the death of
the employee/father of the petitioner. It is the scheme
prevalent on the death of the employee which would be
applicable.
12. In view of the facts and circumstances stated
herein above, the order impugned dated 20.4.2018 passed by
the respondent no.5 is not sustainable and is accordingly set
aside.
13. The respondents are directed to consider the
application of the petitioner for appointment on
compassionate ground at the earliest preferably within a
period of two months from the date of
receipt/production/communication of a copy of this order.
14. The writ application stands allowed.
(Partha Sarthy, J)
Shiv/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 06.02.2026.
Transmission Date
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