Patna High Court
Ranjeet PaswanversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- PARTHA SARTHY
Holding
The rejection was unlawful as no enquiry into the sibling's employment was made; the order is set aside and the case remitted for fresh consideration.
Summary
The petitioner, Ranjeet Paswan, applied for a compassionate appointment after his father, a government employee, died in service. The District Compassionate Committee rejected his application on the ground that his brother was gainfully employed in a contractual position with the Bihar Police Building Construction Corporation, without conducting any enquiry into the nature or income of that employment. The petitioner challenged the rejection, invoking the Full Bench judgment in Niraj Kumar Mallick v. State of Bihar, which requires an objective assessment of a sibling's employment to determine if it can provide sustenance to dependents. The High Court held that the committee erred by not making such an enquiry and that the rejection was therefore unlawful. Consequently, the court set aside the committee’s recommendation and the subsequent order of the Deputy Collector, and remitted the matter back to the committee for fresh consideration in line with the cited precedent.
Issues considered
- Whether the rejection of a compassionate appointment on the basis of a sibling's employment, without an enquiry, violates the statutory guidelines.
- How the term 'gainfully employed' should be interpreted under the State Government policy and the Niraj Kumar Mallick judgment.
- Whether the District Compassionate Committee acted within its jurisdiction in denying the petitioner's application.
Subjects
- compassionate appointment
- gainfully employed
- writ jurisdiction
- Article 226
- government service
- enquiry
- Bihar
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4040 of 2024
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Ranjeet Paswan S/o Late Rajballabh Paswan R/o Kazi Bazar, Paswan Toli
P.O. and P.S. Hilsa Dist Nalanda Bihar
... ... Petitioner/s
Versus
1. The State of Bihar
2. The District Magistrate, Nalanda, Bihar.
3. The District Compassionate Committee, Nalanda through its Chairman, the
District Magistrate, Nalanda, Bihar.
4. The Superintending Engineer, Minor Irrigation Department, Minor Irrigation
Circle, Nalanda.
5. The Executive Engineer, Minor Irrigation Department, Minor Irrigation
Circle, Nalanda.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Gyan Shankar, Advocate
Ms. Ankita Roy, Advocate
For the Respondent/s : Mr. Standing Counsel (4)
======================================================
CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL ORDER
5 31-03-2026 Heard learned counsel for the petitioner and learned
counsel for the respondents.
2. The petitioner has filed the instant application for
the following relief(s):
“i. Issuance of a writ, writ(s), order orders
for quashing recommendation of the District
Compassionate Committee dated 21.02.2023 so far it
relates to the petitioner, whereby and where under the
case of the petitioner for compassionate appointment
has illegally been rejected without any enquiry on the
non-est ground that the brother of the petitioner is in
government service.
ii. Issuance of a writ, writ(s), order orders
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for quashing the consequential order bearing memo
no- 1116 dated 20.07.2023 issued under the signatures
of the Deputy Collector, Establishment, Nalanda
where by the decision of the Compassionate
Committee rejecting the case of the petitioner for
compassionate appointment has been communicated
to the petitioner.
iii. For commanding the respondent
District Compassionate Committee to reconsider its
decision dated 21.02.2023 and recommend the case of
the petitioner for compassionate appointment in view
of the fresh Unemployment Certificate contained in
memo no-665 dated 11.04.2023 issued by the Circle
Officer, Hilasa, Nalanda which certifies that none of
the brothers of the petitioners are in Government
Service and further the fact that they are living
separately.
iv. Issuance of any other writ(s), order(s),
or direction(s) as may be deemed fit and proper by
this Hon’ble Court.”
3. The case of the petitioner in brief is that the father
of the petitioner who was working as a Tubewell Operator in
Minor Irrigation Department died in harness on 21.4.2021 due
to illness. The application for compassionate appointment
having been filed by the petitioner came to be rejected in the
meeting of the District Compassionate Committee held on
21.2.2023 brought on record as Annexure-1 to the writ
application and the consequential order was communicated by
the Deputy Collector, Establishment, Nalanda by his letter dated
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20.7.2023 (Annexure-2). It is the rejection of the application
which has lead to the petitioner for filing the writ application.
4. Learned counsel for the petitioner in reference to
the proceedings of the meeting of the District Compassionate
Committee submits that the reason for rejection of petitioner’s
application was the dependent of the deceased Government
servant being gainfully employed. Referring to Annexure-1, it is
submitted that reliance has been placed on letter no.1781 dated
10.5.2010 of the General Administration Department and further
that no enquiry was conducted with respect to the earnings of
the petitioner’s brother. Referring to paragraph no.8 of the writ
petition, it is submitted that the petitioner’s brother was not in
regular Government service but was a contractual employee in
the Bihar Police Building Construction Corporation. Learned
counsel submits that the said statement has not been
contradicted or contested by the respondents in their counter
affidavit. Reliance has been placed by the petitioner on the Full
Bench judgment of this Court in the case of Niraj Kumar
Mallick vs. The State of Bihar & Ors.; 2018 (2) PLJR 951.
5. The application is opposed by learned counsel
appearing for the respondents who submits that the application
of the petitioner for his appointment on compassionate ground
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was considered by the District Compassionate Committee and
the Committee in its meeting held on 21.2.2023 considered the
application and rightly rejected the same in view of the General
Administration letter no.1781 dated 10.5.2010. The petitioner
not denying the fact that his brother is gainfully employed being
in Government service, there is no merit in the writ application
and the same be dismissed.
6. Heard learned counsel for the parties and perused
the material on record.
7. The relevant facts in brief are that the father of the
petitioner having died in Government service on 21.4.2021, the
petitioner filed an application for his appointment on
compassionate ground. The same came to be rejected by the
District Compassionate Committee in their meeting held on
21.2.2023 on the ground of the brother of the petitioner being
gainfully employed.
8. It is not in dispute that the brother of the petitioner
is not in a regular Government service but was working on
contractual basis in the Bihar Police Building Construction
Corporation. In response to this statement made in paragraph
no.8 of the petition, the counter affidavit of respondent no.2 in
paragraph no.14 thereof states that the same is a matter of
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record.
9. At this stage, it would be relevant to refer to the
Full Bench judgment of this Court in the case of Niraj Kumar
Mallick (supra) wherein while considering the guidelines of the
State Government issued on 19.11.2014 wherein the letter
no.1781 dated 10.5.2010 of the General Administration
Department was also referred to, this Court held as follows:
“47. 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
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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 paragraphs 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;-
"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."
48. In terms of the clarification offered by
the department, on receipt of information that other
siblings of the applicant are in employment, the
competent authority would be required to objectively
look into the nature of the employment and the
resources being generated by the employed sibling
from such employment. On an objective
consideration where it is found that other sibling of
the applicant is gainfully employed in such an
employment from which he/she is in a position and
has capacity to provide sustenance/maintenance to
the other dependents, the application for
appointment on compassionate ground would not fit
in the scheme in terms of the clarification at
Annexure-"A" referred above but where it is found
that the employment of the other sibling is of such a
nature that it is not generating resources so as to
make him able to provide both ends meet, for
sustenance/maintenance to the other dependents of
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the deceased Government employee and despite
gainful employment of one of the dependents but
because of his poor income from such employment
he is not in a position to provide two ends meet to
the other dependents, therefore, they are on the
verge of starvation, destitution and penury, the
authorities of the State would be liable to consider
the application of other dependent for appointment
on compassionate ground. No other plea in any form
whatsoever would be a ground to provide the benefit
of the scheme of compassionate appointment.
49. In my opinion the Division Bench
judgment of this Court in the case of Vishal Kumar
(supra) followed by learned Writ Court in the case of
Mahabir Paswan (supra) and Jay Prakash
Choudhary (supra) are laying down the correct law.
In none of these writ applications, the petitioners
have pleaded that their other siblings are in such an
employment by which they are unable to get
sufficient money so as to provide the both ends meet
to these petitioners, therefore, we find no error in the
impugned order rejecting the application of the
petitioner(s) on the ground that their other siblings
are in employment. I would, therefore approve the
judgment dated 22.8.2016 passed by the learned
Single Judge in CWJC No. 10236 of 2013 which has
followed the judgment of the Hon'ble Division Bench
in the case of Vishal Kumar (supra).
50. The Letters Patent Appeal as well as
both the Writ Applications are, accordingly,
dismissed. There will, however, be no order as to
costs.”
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10. Taking into consideration the facts and
circumstances of the case and specially the ratio of the judgment
in the case of Niraj Kumar Mallick (supra), the competent
authority was required to objectively look into the nature of the
employment and the resources being generated by the employed
sibling (brother of the petitioner herein) from such employment.
11. On perusal of the contents of the order impugned
as also the counter affidavit filed, the Court finds that no such
enquiry has been made.
12. In view of the facts and circumstances of the case,
the minutes of the meeting dated 21.2.2023 of the District
Compassionate Committee brought on record as Annexure-1 to
the writ application so far as it relates to this petitioner as also
the following order dated 20.7.2023 of the Deputy Collector,
Establishment, Nalanda as contained in Annexure-2 are both set
aside.
13. The matter is remitted back to the District
Compassionate Committee, Nalanda through its Chairman, the
District Magistrate, Nalanda (respondent no.3) to consider the
case of the petitioner in view of the Full Bench judgment in the
case of Niraj Kumar Mallick (supra) as quoted herein above.
14. The matter being one relating to compassionate
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appointment with respect to an employee who died on
21.4.2021, the matter be considered and decided within a period
of two months from today.
15. The matter be considered expeditiously and the
order passed be communicated to the petitioner forthwith.
16. The writ application stands allowed to the above
extent.
(Partha Sarthy, J)
Saurabh/-
U
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