Patna High Court
Dhananjay Kumar SinghversusThe State of Bihar
- Decided
- Disposal
- DISMISSED
Holding
A compassionate appointment cannot be granted without a declaration of civil death and when the requisite immediacy of financial hardship has been lost due to an inordinate lapse of time.
Summary
The appellant, Dhananjay Kumar Singh, sought a compassionate appointment after his father, a Class‑IV employee, went missing on 2 December 1999 and was later declared dead by a death certificate. The single judge dismissed the writ petition, holding that the appellant had not produced a declaration of civil death under Section 108 of the Indian Evidence Act, which is required for such appointments. On appeal, the Patna High Court examined the statutory presumption of death, the need for a competent court declaration of civil death, and the Supreme Court’s jurisprudence that compassionate appointments are intended only for immediate financial hardship and cannot be claimed after a long lapse of time. The court noted that the father’s disappearance occurred over two decades ago, and the family had apparently sustained itself, eroding the element of immediacy. Consequently, the court affirmed the lower court’s decision and dismissed the intra‑court appeal.
Issues considered
- The appellant is entitled to a compassionate appointment without a declaration of civil death under Section 108 of the Evidence Act.
- Whether a death certificate issued under the Registration of Births and Deaths Act, 1969, suffices as proof of civil death for compassionate appointment purposes.
- Whether the lapse of more than twenty years since the father’s disappearance defeats the requirement of immediacy for compassionate appointment.
Legislation cited
Subjects
- compassionate appointment
- civil death
- presumption of death
- Indian Evidence Act
- immediacy
- public employment
- death certificate
- lapse of time
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1179 of 2024
In
Civil Writ Jurisdiction Case No.6835 of 2017
======================================================
Dhananjay Kumar Singh, son of Late Vishwanath Singh, resident of Village-
Mishrawalia, P.O. and P.S.-Rajpur in the district of Rohtas.
... ... Appellant/s
Versus
1. The State of Bihar.
2. The Principal Secretary, Department of Home, Government of Bihar, Patna.
3. The Principal Secretary, General Administration Department, Government
of Bihar, Patna.
4. The District Magistrate, Rohtas, Sasaram cum Chairman, District
Compassionate Committee, Rohtas.
5. The Superintendent of Police, Rohtas, Dehri On Sone, Rohtas.
6. The Sub-Divisional Officer, Bikramganj.
7. The Sub-Divisional Police Officer, Bikramganj, Rohtas.
8. The Officer in Charge, Police Station, Rajpur, Rohtas.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Bimal Kumar, Advocate
For the Respondent/s : Mr. Saroj Kumar Sharma, AC to AAG-3
======================================================
CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)
Date : 09-04-2026
Heard the leaned Counsel for the parties.
2. The present intra court appeal has been preferred
against the judgment dated 02.09.2024 passed by the learned
Single Judge in CWJC No. 6835 of 2017, whereby the writ
petition preferred by the writ petitioner/appellant was dismissed.
3. CWJC No. 6835 of 2017 was filed by the appellant,
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seeking following reliefs:
“2.i) That the order bearing memo no. 2 dated
11.04.2016 issued by the respondent no. 4,
District Magistrate, Rohtas contained in
annexure-8 may be quashed.
ii) That the respondents may be directed to
consider the claim of the petitioner for
compassionate appointment in the light of order
dated 03.01.2014 passed in C.W.J.C.No.
17571/2012 contained in annexure-6.
iii) That any other relief or reliefs may be
allowed which will be just, proper and equitable
on the opinion of this Hon’ble Court.”
4. The brief facts of the case are that the appellant’s
father, while serving on a Class-IV post, was kidnapped on
02.12.1999. An FIR was lodged by the appellant’s mother vide
Rajpur P.S. Case No. 156/1999 under Sections 364/120B/34 of
the Indian Penal Code and, upon completion of investigation, a
charge-sheet was submitted. Thereafter, the appellant’s mother
applied for compassionate appointment, which was
recommended by the Rajpur Police Station, and by the S.D.O.,
Bikramganj, vide Letter No. 910 dated 13.07.2009, before the
District Compassionate Appointment Committee. Thereafter,
Committee rejected the appellant’s claim. Being aggrieved, the
appellant preferred C.W.J.C. No. 17571 of 2012, which was
disposed of by the learned Single Judge with a direction to the
authorities concerned to reconsider the matter. Pursuant thereto,
the District Compassionate Appointment Committee, Rohtas,
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again rejected the appellant’s claim vide Memo No. 02 dated
11.04.2016. Aggrieved thereby, the appellant preferred C.W.J.C.
No. 6835 of 2017, which came to be dismissed on 02.09.2024.
5. The learned single judge in CWJC No. 6835 of
2017, passed the following order, after hearing the parties and
upon consideration of the materials available on record:
“15. In the present case, the petitioner has not
been able to brought on record any evidence in
respect of his claimin accordance with the
statutory provision contained in Section 108 of
the Act. The petitioner has relied on order dated
19.09.2019 passed in C.W.J.C. No.589 of 2019
(Rajiv Kumar Vs. The State of Bihar)by a Co-
ordinate Bench of this Court, wherein the Co-
ordinate Bench relying on the judgment passed
in the case of Kundan Kumar Vs. The State of
Bihar, reported in (2017) 4 PLJR 625, in which
following observations have been made which is
inter alia reproduced hereinafter:
“In view of decision in the case of Kundan
Kumar(supra) taken note of hereinabove this
Court would observe that to avoid such delay
and consideration in such matters arising out
of civil death authorities may consider the
desirability of issuing appropriate guidelines
in this regard from the General
Administration Department to the various
compassionate appointment committees in
light of the decision in the case of Kundan
Kumar (supra). Such an observation is being
recorded so that claim for compassionate
appointment can be considered
compassionately and without going through
unnecessary delay in seeking guidance
individually. These observations are not to be
treated as directions and are subjected to
exercise of discretion by the State
Government in this regard.”
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16. I find it apt to reproduce paragraph no. 14 to
the decision of the Apex Court in the case of
L.I.C. of India vs. Anuradha reported in 2004
(10) SCC 131, which is, inter alia, reproduced
hereinafter:
14. On the basis of the abovesaid authorities,
we unhesitatingly arrive at a conclusion
which we sum up in the following words: the
law as to presumption of death remains the
same whether in the common law of England
or in the statutory provisions contained in
Sections 107 and 108 of the Indian Evidence
Act, 1872. In the scheme of the Evidence Act,
though Sections 107 and 108 are drafted as
two sections, in effect, Section 108 is an
exception to the rule enacted in Section 107.
The human life shown to be in existence, at a
given point of time which according to
Section 107 ought to be a point within 30
years calculated backwards from the date
when the question arises, is presumed to
continue to be living. The rule is subject to a
proviso or exception as contained in Section
108. If the persons, who would have naturally
and in the ordinary course of human affairs
heard of the person in question, have not so
heard of him for seven years, the
presumption raised under Section 107 ceases
to operate. Section 107 has the effect of
shifting the burden of proving that the person
is dead on him who affirms the fact. Section
108, subject to its applicability being
attracted, has the effect of shifting the burden
of proof back on the one who asserts the fact
of that person being alive. The presumption
raised under Section 108 is a limited
presumption confined only to presuming the
factum of death of the person whose life or
death is in issue. Though it will be presumed
that the person is dead but there is no
presumption as to the date or time of death.
There is no presumption as to the facts and
circumstances under which the person may
have died. The presumption as to death by
reference to Section 108 would arise only on
lapse of seven years and would not by
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applying any logic or reasoning be permitted
to be raised on expiry of 6 years and 364 days
or at any time short of it. An occasion for
raising the presumption would arise only
when the question is raised in a court,
tribunal or before an authority who is called
upon to decide as to whether a person is alive
or dead. So long as the dispute is not raised
before any forum and in any legal
proceedings, the occasion for raising the
presumption does not arise.
(emphasis supplied)
17. Learned counsel, however, has not been able
to refer the said reporter before this Court and
even considering the ground of eligibility of the
petitioner, I do not find any merit in the present
writ petition considering the fact that the
petitioner has not been able to bring on record
any evidence in accordance with the provision of
Section 108 of the Act to show that the competent
court has declared the father of the petitioner to
have attained civil death on a lapse of seven
years. The case of the petitioner is also not well
founded considering the fact that the petitioner’s
father was found missing since 02.12.1999 and
nowhere the petitioner has stated in the writ
petition as on date he is facing financial
constraint and he is on the verge of poverty in
spite of the fact that specific direction made in
the writ petition that the father of the petitioner
was the only sole bread earner.
18. In the case of Jagdish Prasad v. State of
Bihar reported in (1996) 1 SCC 301, Hon'ble
Apex Court, while considering the object of
compassionate appointment held that the object
of appointment of a dependent of the deceased
employees who die in harness is to relieve
unexpected immediate hardship and distress
caused to the family by sudden demise of the
earning member of the family.
19. In case of State of U.P. v Paras Nath
reported in (1998) 2 SCC 412 the Hon’ble
Apex Court held that the purpose of providing
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employment to a dependent of a Government
servant dying in harness in preference to
anybody else, is to mitigate the hardship caused
to the family of the employee on account of his
unexpected death while still in service. It was
further observed that none of these consideration
can operate while the application is made after a
long period of time.
20. Considering the aforesaid facts of the case,
this Court is of the opinion that a mere
presumption of death under Section 108 of the
Evidence Act would not be sufficient to proceed
with the application seeking compassionate
appointment. It requires a declaration from the
competent court of law where the evidences
maybe adduced, I do not find merit in the present
writ petition, accordingly, the present writ
petition stands dismissed.”
6. Learned Counsel for the appellant submits that the
learned Single Judge has failed to consider that an F.I.R. was
duly lodged regarding the missing of the appellant’s father and,
upon investigation, the case was found to be true, establishing
that he remained untraceable. It is further submitted that, in law,
where a person remains missing for a continuous period of
seven years, a presumption of death arises, and in this regard a
death certificate dated 01.03.2009 was issued in accordance
with the Registration of Births and Deaths Act, 1969, thereby
the appellant is entitled to be considered for compassionate
appointment and the impugned order is unsustainable in the
eyes of law.
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7. Learned Counsel for the respondents submits that
the matter has been duly and correctly considered by the learned
Single Judge, who has passed a well-reasoned and speaking
order. It is further submitted that the appellant’s father went
traceless in the year 1999, and a considerable lapse of time has
since occurred; thus, the claim for compassionate appointment
is wholly misconceived, as such appointment is not a vested
right but is intended to provide immediate relief against sudden
financial hardship. It is further pointed out that the issuance of a
death certificate cannot be equated with a declaration of civil
death in the eyes of law, and therefore, the ground urged by the
appellant is legally untenable. Learned counsel for the
respondents, further, referred to paragraphs 7 and 8 of the
counter affidavit, which are reproduced hereinbelow:
“7. That it is humbly submitted that thereafter
the appellant preferred CWJC no.6835 of 2017
in which order passed on 02.09.2024 and the
writ petition dismissed with observation that the
presumption of death under section 108 of
evidence act would not be sufficient to proceed
with the application seeking compensate
appointment and also observed that it requires a
declaration from the competent of law were the
evidences may be adduced. It is humbly
submitted that the appellant has not filed any
declaratory suit before the competent court and
this LPA is meritless.
8. That it is humbly submitted that as per the
case of the appellant his father became traceless
on 02.12.1999 and he is claiming regarding civil
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death of his father after expiry of 7 years period
from the date of traceless of the father of the
appellant. It is humbly submitted that appellant
has not filed any case regarding declaration of
civil death of his father and filed application for
compensate appointment and he is claiming that
on 01.03.2009 death certificate of the appellant
was granted. It is humbly submitted that without
any declaration of civil death, death certificate
cannot be granted to the petitioner.”
8. The limited issue that arises for consideration is
whether, in the facts and circumstances of the present case,
particularly in view of the inordinate lapse of time since the
appellant’s father became traceless, the impugned order passed
by the learned Single Judge warrants interference in intra-court
appellate jurisdiction.
9. It is well settled that compassionate appointment is
an exception to the general rule of public employment and is
intended to provide immediate financial relief to the family of a
deceased employee facing sudden financial hardship. At this
juncture, it is apposite to take note of the decision of the
Hon’ble Supreme Court, in the case of Umesh Kumar Nagpal
v. State of Haryana, reported in (1994) 4 SCC 138, wherein it
has been held as follows:
“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
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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.”
10. The aforesaid principle has been reiterated in the
case of Central Coalfields Ltd. v. Parden Oraon, reported in
(2021) 16 SCC 384, the Hon’ble Supreme Court has observed
the following:
“8. …. It was further held that the object of
compassionate appointment is to enable the
family to get over the financial crisis that it faces
at the time of the death of sole breadwinner,
compassionate appointment cannot be claimed
or offered after a significant lapse of time and
after the crisis is over.
9. …. The application for compassionate
appointment of the son was filed by the
respondent in the year 2013 which is more than
10 years after the respondent's husband had
gone missing. As the object of compassionate
appointment is for providing immediate succour
to the family of a deceased employee, the
respondent's son is not entitled for
compassionate appointment after the passage of
a long period of time since his father has gone
missing.”
11. Similarly, in the case of State of W.B. v.
Debabrata Tiwari, reported in (2025) 5 SCC 712, the Hon’ble
Supreme Court has observed that compassionate appointment, if
granted after the crisis has passed, serves no purpose as the
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scheme is founded on immediacy and its object otherwise stands
frustrated, the relevant paragraph is reproduced hereinbelow:
“29. There is a consistent line of authority of this
Court on the principle that appointment on
compassionate grounds is given only for meeting
the immediate unexpected hardship which is
faced by the family by reason of the death of the
breadearner vide Jagdish Prasad v. State of
Bihar [Jagdish Prasad v. State of Bihar, (1996) 1
SCC 301: 1996 SCC (L&S) 303]. When an
appointment is made on compassionate grounds,
it should be kept confined only to the purpose it
seeks to achieve, the idea being not to provide
for endless compassion, vide I.G. (Karmik) v.
Prahalad Mani Tripathi [I.G. (Karmik) v.
Prahalad Mani Tripathi, (2007) 6 SCC 162 :
(2007) 2 SCC (L&S) 417]. In the same vein is
the decision of this Court in Mumtaz Yunus
Mulani v. State of Maharashtra [Mumtaz Yunus
Mulani v. State of Maharashtra, (2008) 11 SCC
384 : (2008) 2 SCC (L&S) 1077] , wherein it
was declared that appointment on
compassionate grounds is not a source of
recruitment, but a means to enable the family of
the deceased to get over a sudden financial
crisis.
33. The object underlying a provision for grant
of compassionate employment is to enable the
family of the deceased employee to tide over the
sudden crisis due to the death of the breadearner
which has left the family in penury and without
any means of livelihood. Out of pure
humanitarian consideration and having regard
to the fact that unless some source of livelihood
is provided, the family would not be in a position
to make both ends meet, a provision is made for
giving gainful appointment to one of the
dependants of the deceased who may be eligible
for such appointment. Having regard to such an
object, it would be of no avail to grant
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compassionate appointment to the dependants of
the deceased employee, after the crisis which
arose on account of death of a breadwinner, has
been overcome. Thus, there is also a compelling
need to act with a sense of immediacy in matters
concerning compassionate appointment because
on failure to do so, the object of the scheme of
compassionate appointment would be frustrated.
Where a long lapse of time has occurred since
the date of death of the deceased employee, the
sense of immediacy for seeking compassionate
appointment would cease to exist and thus lose
its significance and this would be a relevant
circumstance which must weigh with the
authorities in determining as to whether a case
for the grant of compassionate appointment has
been made out for consideration.”
12. Upon perusal of the materials available on record,
it is apparent that the appellant’s father became traceless in the
year 1999 and a considerable period of time has since elapsed.
Such an inordinate lapse of time assumes decisive significance
in the context of compassionate appointment, which is
conceived not as a mode of public employment, but as a tailored
exception intended to meet an immediate and emergent financial
exigency arising on account of the loss of the bread earner. In
this backdrop, it is pertinent to take note of the judgment of the
Hon’ble Supreme Court in Debabrata Tiwari (supra), wherein
it has been authoritatively held that where there is a prolonged
delay, whether attributable to the applicant or the authorities, the
foundational element of immediacy stands significantly
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diminished and loses its force, the relevant paragraph is
reproduced under:
“35. Considering the second question referred to
above, in the first instance, regarding whether
applications for compassionate appointment
could be considered after a delay of several
years, we are of the view that, in a case where,
for reasons of prolonged delay, either on the part
of the applicant in claiming compassionate
appointment or the authorities in deciding such
claim, the sense of immediacy is diluted and lost.
Further, the financial circumstances of the family
of the deceased, may have changed, for the
better, since the time of the death of the
government employee. In such circumstances,
courts or other relevant authorities are to be
guided by the fact that for such prolonged period
of delay, the family of the deceased was able to
sustain themselves, most probably by availing
gainful employment from some other source.
Granting compassionate appointment in such a
case, as noted by this Court in Hakim Singh
[Haryana SEB v. Hakim Singh, (1997) 8 SCC
85 : 1998 SCC (L&S) 31] would amount to
treating a claim for compassionate appointment
as though it were a matter of inheritance based
on a line of succession which is contrary to the
Constitution. Since compassionate appointment
is not a vested right and the same is relative to
the financial condition and hardship faced by the
dependants of the deceased government
employee as a consequence of his death, a claim
for compassionate appointment may not be
entertained after lapse of a considerable period
of time since the death of the government
employee.
46. The sense of immediacy in the matter of
compassionate appointment has been lost in the
present case. This is attributable to the
authorities of the appellant State as well as the
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respondent-writ petitioners. Now, entertaining a
claim which was made in 2005-2006, in the year
2023, would be of no avail, because admittedly,
the respondent-writ petitioners have been able to
eke out a living even though they did not
successfully get appointed to the services of the
Municipality on compassionate grounds. Hence,
we think that this are therefore not fit cases to
direct that the claim of the respondent-writ
petitioners for appointments on compassionate
grounds, be considered or entertained.”
13. In view of the settled legal position and the law
laid down by the Hon’ble Supreme Court, it is reasonable to
presume that over such an extended period, the family of the
deceased has been able to sustain itself, and therefore, the
original financial crisis which justified compassionate
appointment may no longer subsist. It has been categorically
emphasized that entertaining such claims after a considerable
lapse of time would be of no avail and would defeat the very
object of the scheme. The Apex Court has further cautioned that
compassionate appointment cannot be treated as a matter of
inheritance or succession, nor can it be claimed as a vested
right, but must remain strictly confined to its limited purpose of
alleviating immediate financial distress. Any deviation from this
principle, particularly by entertaining stale claims, would run
contrary to the constitutional mandate governing public
employment.
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14. In the facts of the present case, a considerable
time has elapsed since the appellant’s father went traceless, as a
result of which the element of immediacy or exigency stands
substantially diluted. Consequently, consideration of
compassionate appointment at this belated stage would be
inconsistent with the settled legal principles, since the very
purpose of such appointment, i.e., to provide immediate relief
against sudden financial hardship stands defeated with the
passage of time, particularly where the family has sustained
itself during the intervening period. In such circumstances,
entertaining the claim at this stage would not only be
unwarranted but would also amount to extending the benefit of
compassionate appointment beyond its intended scope, thereby
defeating the object of the scheme and running contrary to the
principles governing public employment.
15. In view of the facts and materials available on
record, the discussions made hereinabove, and the law laid
down by the Hon’ble Supreme Court, this Court finds no
illegality or perversity in the order passed by the learned Single
Judge warranting interference.
16. Accordingly, the present intra court appeal stands
dismissed.
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17. Pending application(s), if any, shall also stand
disposed of.
(Sudhir Singh, J)
(Shailendra Singh, J)
Sujit/-
AFR/NAFR AFR
CAV DATE NA
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