MD NOOR ALAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) PETITIONERS are sons/wife of Md. Hasibul Hussain/ Arjun Prasad Pandey/ Ram Prit Singh/ Sarbjeet Singh @ Sarbjeet Singh yadav/ Shibu Rai Chandradeep Paswan who while serving as Pump Operator/Forest, Guard/Under Secretary/Peon in the Minor Irrigation Division, Samastipur/ Sanjay Gandhi Zoological Park at Patna/ Bihar State Electricity Board, Patna/Office of Incharge Magistrate, District Control Room, Patna/Forest Department under Van Karya Niyojana Pramandal, Magadh Anchal, Patna/ Public Heal Engineering Department, Patna West Division, Patna became traceless and continues to be so even till today. Invoking the presumption under Section 108 of the Indian Evidence Act, 1872 petitioners served a legal notice dated 6.10.2004/ representations dated 14.7.2005 and 2.8.2005 stating, inter alia, that as their father has not been heard for more than seven years they be presumed to be dead and they (petitioners) be considered for compassionate appointment in the light of the instruction of the State Government contained in letter bearing No. 13293 dated 5th October, 1991 but their request has been refused by the executive Engineer/ Director, Sanjay Gandhi Biological Park, Patna/ Board authority/ District Compassionate Committee under letter No. 49 dated 10.2.2005. Annexure -9/ Office Order No. 122 dated 31st August, 2005, Annexure -2/ Memo No. 260 dated 3.2.2004, Annexure -5/ Memo No. 1629 dated 02.8.2005, Annexure -8 with reference to the instruction of the Personnel and Administrative Reforms Department. Government of Bihar/ Minor Irrigation Department contained in letter No. 4960 dated 1.10.2003/ letter No. 1314 dated 28.7.2005/ Letter No. 4890 dated 17.7.2003/ Letter No. 4890 dated 17.4.2003 as there is no instruction of the State Government to consider the case of those whose father/husband has become traceless and have been declared dead for appointment on compassionate ground. Petitioners further assail the order of the Collector, Samastipur issued under the signature of the Establishment Deputy Collector, Samastipur bearing letter No. 1084 dated 22.11.2003, Annexure -10, which is addressed to the Executive Engineer as thereunder also it has been stated that the claim of the petitioners for appointment on compassionate around cannot be considered as there is no instruction of the State Government to consider the case of those dependents whose father/husband have become traceless and have been declared dead. In support of the prayer made in the writ petition learned Counsel for the petitioner has relied on the instructions of the State Government contained in Circular Letter No. 9739 dated 25th November, 1997. Annexure -12 to the supplementary affidavit dated 9.7.2007, whereunder State Government had taken a decision to treat Government servants traceless for more than seven years to be dead with further direction to the authorities to consider the case of their dependents for appointment on compassionate ground. In this connection, he has further relied on Section 108 of the Evidence Act and the Division Bench Judgment of this Court in the case of Rajiv Kumar v. The State of Bihar and Ors. reported in 2004(1) PLJR 36 and with reference to the said judgment it is submitted that after passage of seven years from the date of Government servant becoming traceless the Government servant shall be presumed dead and the case of his wards shall be considered for compassionate appointment in terms of the provisions contained in Circular Letter No. 13293 dated 5th October, 1991. We has further relied on another judgment of this Court in the case of Smt. Kamla Devi and Sudhir Kumar v. The State of Bihar and Ors. reported in 2005 (2) PLJR 155 and with reference to the said judgment it is submitted that for being considered for compassionate appointment not only actual death but also presumed death is required to be taken into account.

(2.) LEARNED Counsel for the State has opposed the prayer with reference to the averments made in the counter affidavit filed on behalf of Respondent No. 4. The Secretary, Department of Personnel and Administrative Reforms, Government of Bihar/ Respondent No. 1, Secretary, Bihar State Electricity Board, Patna/ Respondent No. 2. District Magistrate, Patna and has submitted with reference to the instructions of the State Government contained in Letter No. 281 dated 1.2.2006/ Standing Order No. 805 dated 7.3.1998/ as contained in Annexure -A to the counter affidavit that there is no provision/ instruction of the State Government to consider the case of the dependent of those who have become traceless and are presumed dead and with reference to the said Circular it is submitted that as there is no provision/instruction, the case of the petitioners who are the wards/dependents of the traceless Government Servants shall not be considered for appointment on compassionate ground, as it is well known that appointment on compassionate ground is made only in the light of the policy decision/ instructions of the State Government and when there is no such instruction of the State Government to consider the case of the dependents of those who have become traceless then the case of the petitioners cannot be considered. Learned Counsel for the State further pointed out that as the Government servants disappeared seven years earlier and their family members/dependents including the petitioners managed to survive in the intervening seven years then their case cannot be considered for appointment on compassionate ground as appointment on compassionate ground is not a mode of appointment but is only given to a family in distress who is otherwise not able to survive without such appointment and as their other family members/dependents have been able to survive during the intervening seven years, they cannot be considered for appointment on compassionate around as otherwise the very purpose of appointment on compassionate ground shall become meaningless. In support of his aforesaid submission, learned Counsel for the State has relied on the judgments in the case of Bishwa Nath Banerjee v. State Bank of India and Ors. reported in 2002(2) PLJR 503, in the case of Umesh Kumar Nagpal v. The State of Haryana and Ors. reported in : [1994]3SCR893 , in the case of Kunti Devi v. The Chairman -Cum -Managing Director, Syndicate Bank Staff Department and Ors. reported in 2001(4) PLJR 426, in the case of National Institute of Technology and Ors. v. Niraj Kumar Singh reported in 2007 AIR SCW 1169 and in the case of Union Bank of India and Ors. v. M.T. Latheesh reported in 2006 AIR SCW 4626.

(3.) THESE writ application are, accordingly, disposed of.