PARMANAND SAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD .

(2.) THE father of the petitioner was a Govt. employee who died in harness. The death occurred on 20th January, 1997. As on that date there was no minimum educational qualification prescribed for getting a Class -lV appointment in the Govt. The right of the petitioner to be considered for appointment crystallized on 20th January, 1997 as the death of his father occurred on that date. The petitioner however did not apply for a compassionate appointment immediately after the death of his father occurred. He waited till 14th January, 1998 and made an application for compassionate appointment on that date. In the meantime on 20th April, 1997 the Government prescribed that for a Class -lV employee of the Govt. the aspirant must be a Class VIIl passed candidate. The right to a compassionate appointment crystallizes on the date of the death. Accordingly, in law the persons seeking compassionate appointments must be eligible for compassionate appointment on the date of death. Admittedly, in the instant case on 20th January, 1997 petitioner had eligibility to be appointed atleast in a Class -IV post of the Govt. It has been held by two successive Division Bench of this Court that although the person seeking compassionate appointment is required to have eligibility to have such appointment on the date of death, but if the scheme for giving compassionate appointment permits making of an application within a time specified, it is permissible for the person seeking compassionate appointment to acquire the eligibility within the time by which the application for compassionate appointment is required to be made, which qualification he did not have as on the date of the death, and to apply for a compassionate appointment within the time. This principle is based on the philosophy that the eligibility shifts from the date of death to the date of application and accordingly the person seeking an application must be competent to apply on the date of his application. In the instant case although the petitioner was competent to have a Class IV post on the date of death, which occurred on 28th January, 1997, but by postponing the application till 14th January, 1998 the petitioner disentitled himself to be appointed in Class IV inasmuch as on 25th April, 1997 the Government specified that for getting a Class IV post the candidate must be at least Class VIII passed. The petitioner has relied upon a letter written by Under Secretary to the Department, through which the Government published the circular dated 25th April, 1997, written to the District Magistrate, Begusarai on 21st December, 1998. stating that the minimum qualification as prescribed for Class IV post shall not be criteria for giving compassionate appointment. In other words for compassionate appointment the minimum qualification of Class VIII pass will not be applicable. This letter is directly in contravention of the Government decision contained in Circular dated 25th April, 1997.