SHIV KARMPAL SAHU Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) IN all these cases, the petitioners, who claim to be the dependent (s) of the person (s), killed by the extremists, have prayed for direction (s) to pay compensation and/or to provide appointment on compassionate ground, as per the Government 'sscheme. The grounds/ cause being common, all the writ applications have been heard together and are being disposed of by this common order.

(2.) BEFORE deciding the claim of individual petitioner, it is necessary to notice relevant guidelines, issued by the State Government from time to time for payment of compensation and/or appointment on compassionate ground to the dependent (s) of those, killed by the extremists, which are discussed hereunder : The then State of Bihar from its Home (Special) Department initially circulated a scheme vide Letter No. 1701, dated 21st September, 1987, whereby and whereunder, it was decided to give compensation to the dependent (s)/injured, who are killed/injured by the terrorist/extremists attack or in communal riots. It was decided to pay the dependent of a deceased Rs. 20.000.00 , including those, who remain traceless for more than seven years and are presumed to be dead, due to terrorist/extremist attack or in communal riots. A sum of Rs. 5000.00 was also fixed for those, who became permanently disabled and a sum of Rs. 500 -1000.00 was fixed for the injured. However, it was made clear that such compensation shall 'not be paid to a person, who himself was a terrorist/extremist or is a listed criminal. Subsequently, the then Government of Bihar through its Home (Special) Department made provision for compassionate appointment to the dependent of deceased, died in terrorist/extremist attack or in communal riots or during election violence or if died in mass carnage. Said decision was communicated vide Letter No. 1972, dated 9th August, 2000, having Memo No. 56, dated 4th September, 2000. Compensation amount was also enhanced from Rs. 20.000.00 to Rs. 50.000.00 to the dependent, Rs. 5.000.00 was enhanced to Rs. 10.000.00 if a person becomes permanently disabled and Rs. 500 -1000.00 was enhanced to Rs. 2,000.00 in case of grievous injury. In special case, the Chief Minister of the State was empowered to pay compensation up to Rs. 1,00,000.00 apart from appointment on compassionate ground to a dependent. After re -organization of the State and creation of the State of Jharkhand with effect from 15th November, 2000 the aforesaid scheme, circulated by Letter No. 1701, dated 21st September, 1987, as modified by Letter No. 1972, dated 9th August, 2000, having Memo No. 56, dated 4th September, 2000, continued to remain in force. Government of Jharkhand, of its own, while ' issued similar scheme, circulated vide Home Department 'sLetter No. Grih. Sa. -5 -49/2000 -3002, dated 4th November, 2001. decided to pay Rs. 50.000.00 as compensation to dependent of a deceased, if died during terrorist/extremist attack or in caste notes or during election violence and/or mass carnage. It was also decided to pay Rs. 1000.00 as compensation to a permanent disabled person; Rs. 2.000.00 as compensation to grievously injured person etc. The Chief Minister was empowered to grant compensation upto Rs. 1,00,000.00 to the dependent of a deceased. Under this scheme, Government of Jharkhand also made it clear that such compensation shall not be granted to a person or dependent of such person, who himself was terrorist/extremist or a listed criminal or dies in police encounter or police firing or becomes disabled or injured. A separate scheme was circulated for compassionate appointment by the Government of Jharkhand vide Home Department 'sresolution dated 7th May, 2003, circulated vide Memo No. Gri. Sa. -5 -49/2000 -2269, Ranch! dated 7th May, 2003. It was again made clear that compassionate appointment will not be made to such person or dependent, who himself was terrorist/extremist or a listed criminal or died in police encounter or police firing. So far as the definition of 'dependent ' and procedure for appointment are concerned, it was ordered that such definition etc. will be followed as prescribed for compassionate appointment of the dependent of an employee, who dies in harness. According to the petitioner Shiv Karmpal Sahu, his father late Duli Sahu was killed by extremist group Le. MCC on 19th May, 2000, which was published in the newspaper and the Gram Panchayat of Raj Umra has also issued a certificate in this regard on 31st May, 2000. Said Duli Sahu died leaving behind his widow, two sons, namely, Shiv Karmpal Sahu (petitioner) and Vijay Sahu as also one daughter Punam Kumari. After the death of his father, petitioner Shiv Karmpal Sahu filed application on 5th November, 2000 for compassionate appointment. Reminder was also given on 1st October, 2002. But his grievance is that the respondents have not considered his case for appointment on compassionate ground. He has enclosed a copy of the recommendation, made by the Circle Officer, Palkot, vide his Letter No. 267, dated 18th September, 2003 and the recommendation, made by the Sub -Divisional Officer, Gumla vide Letter No. 33, dated 30th January, 2004, whereby, the superior officers were requested to consider his case. The 3rd respondent, Secretary, Home Department, Government of Jharkhand, Ranchi, in his affidavit has taken plea that the father of the petitioner late Duli Sahu, resident of Village Umra Nakti Toli, Post Office -Baghima, Police Station -Palkot was killed by the MCC extremist on 19th May, 2000 and a case being Palkot P.S. Case No. 18 of 2000 was registered for the offence "under Secs. 147, 148, 149, 302, and 422 of the Indian Penal Code. The dependents of the deceased have been paid a sum of Rs. 20.000.00 as compensation, as per Circular No. 1701, dated 21st September, 1987, which was effective on the date, but has taken plea that the case of the petitioner cannot be considered as Circular No. 1972, dated 9th August, 2000, circulated vide Memo No. 56, dated 4th September, 2000, came into force from a late date. The aforesaid stand taken by the 3rd respondent cannot be accepted in view of scheme of compassionate appointment, in general cases, as issued by the State Government. The original scheme for compassionate appointment was issued vide Memo No. 12754, dated 12th July, 1977 from Personnel and Administrative Department, Government of Bihar, Patna, followed by amendment, made vide subsequent circulars. By Circular, contained in Memo No. 3/C/20 -30/88 Ka -6817, dated 25th May, 1989, the limitation for filing application for compassionate appointment was extended upto five years. Such, limitation of five years was prescribed from the date of death and thereby Circular No. 6817, dated 25th May, 1989 also covered the dependents of those employees, who died prior to 25th May, 1989 but within the limitation of five years, enabling the dependent to apply. For example; if a Government employee died in harness in the year, 1986, the dependent of such deceased employee having applied within five years of the death, was also covered by Circular dated 25th May, 1989. The said circular has been further clarified by the Personnel And Administrative Reforms Department 'sMemo No. 3/C -2 -2067/90 Ka. 13293, dated 5th October, 1991. In the matter of compassionate appointment, on the death of a person, killed by terrorist/extremist or during communal violence or during election violence etc., the definition of 'dependent ' and other things of general compassionate appointment are to be followed; the period of limitation will be the same Le. five years from the date of death and their cases are also to be considered through the Compassionate Appointment Committee. Further of the petitioner Shiv Karmpal Sahu, namely, duli Sahu, having been killed by the MCC extremist on 19th may, 2000 and the petitioner having applied within the PERIOD OF LIMITION I.e. IN November, 2000 itself, the respondents cannot refuse to consider his case on the ground that the death took place prior to issuance of Circular No. 1972, dated 9th August, 2000, circulated vide Memo No. 56, dated 4th September, 2000. The respondents are, accordingly, directed to consider the case of the petitioner for compassionate appointment against an appropriate Class TV post and communicate the decision to the petitioner within a period of three months from the date of receipt/production of a copy of this order. So far as petitioner Mamta Kumari of the present writ petition is concerned, her husband, namely, late Dhanu Prasad Jaiswal, according to her, was killed by the extremist group i.e. People War Group (PWG) on 6th June, 2003 at Village -Tendar. An FIR being Ghaghra P.S. Case No. 27 of 2003 was lodged in this regard for the offence under Secs. 147, 148, 149, 302 /34 and 120 -B of the Indian Penal Code and Sec.17 of the criminal Law Amendment act, a copy of which has been enclosed as Annexure 1 to the writ petition. Her grievance is that while the respondents have given compassionate appointments to the dependents of others, who have been killed by the extremists, in spite of representation, made by her on 22nd November, 2003 (Annexure 2) to the writ petition), the Deputy Commissioner, Gumla, has not considered her case for compassionate appointment nor has granted any compensation amount, She has prayed for a direction on the respondents to consider her case for compassionate appointment and to pay her the compensation as per the Government 'sdecision. The 3rd respondent, Secretary, Home Department, Government of Jharkhand, Ranchi, while admitting that the husband of the petitioner Dhanu Prasad Jaiswal was killed by the extremists on 6th June, 2003 and Ghaghra P.S. Case No. 27 of 2003, dated 6th June, 2003 for the offence under Secs. 147, 148, 149, 302/34 and 120 -B of the Indian Penal Code as also under Sec.17 of the C.L.A. Act was instituted, has taken that the Superintendent of Police, Gumla, vide Letter No. 2036, dated 19th October, 2003 has informed that the deceased Dhanu Prasad Jaiswal was him self a member of an extremist organization i.e. S.J.M.M. and was charge -sheeted in Ghaghra P.S. Case No. 46 of 2002, dated 21st June, 2002 for the offence under Sections 341, 323, 324, 307, 436, 435, 364, 387, 120 -B and 302/34 of the Indian Penal Code and 27 of the Arms Act. He was also suspect accused in Ramakant Jaiswal 'smurder case. The petitioner in her rejoinder has enclosed a copy of the judgment dated 21st April, 2003, passed by the learned Additional District and Sessions Judge, Fast Track Court No. 1, Gumla, in Sessions Trial No. 3 of 2002, arising out of Ghaghra P.S. Case No. 46 of 2002, corresponding to G.R. No. 360 of 2002; wherein, Dhanu Jaiswal, accused No. 1, was charged under Sections 320/34, 201, 307 and 120 -B of the Indian Penal Code and 27 of the Arms Act. The said case was decided prior to the death of Dhanu Prasad Jaiswal and all the accused, including Dhanu Jaiswal, were acquitted of all the charges, the prosecution having miserably failed to prove the charges against the accused persons. Therefore, it cannot be held that merely because one FIR was lodged, late Dhanu Jaiswal should be treated as terrorist/extremist and/or a listed criminal. So far the allegation against Dhanu Jaiswal being a suspected accused in Ramakant Jaiswal 'smurder case is concerned, the respondents have not given the details or reference so as to enable the petitioner to file an effective reply. On the basis of some vague allegation one cannot be labeled as an extremist. In view of the fact that late Dhanu Jaiswal was acquitted in Session Trial No. 3 of 2003 and the respondents have not brought any cogent material on record so as to conclude that said late Dhanu Jaiswal was a terrorist/extremist or a listed criminal, the petitioner cannot be denied consideration/benefit of the scheme on such vague ground, pleaded in the counter affidavit. The respondents should consider the case of the petitioner afresh for her compassionate appointment and for payment of compensation, in accordance with the Government 'scirculars/scheme, as referred to above. The case is, accordingly, remitted to the Deputy Commissioner, Gumla, to consider the ease of the petitioner, as ordered above, and to pass reasoned order within a period of four months from the date of receipt/production of a copy of this order. If the respondent/concerned authority rejects the claim for any valid reason, he will communicate the ground (s) to the petitioner Mamta Kumari. According to this petitioner Santosh Prasad, his brother Ramesh Sao was killed by the extremists, for which Ranka P.S. Case No, 54 of 2002, dated 4th August, 2002 was registered for the offence under Secs. 147/148/149/323/324 and 302 of the Indian Penal Code and under Sec.17 of the C.L. A. Act. His grievance is that though he applied for compassionate appointment, his case has not yet been considered by the respondents. The respondents, in their counter affidavit, have admitted that Ramesh Sao was murdered by the MCC extremists but have taken plea that Ramesh Sao was involved in terrorist/extremist activities. Initially, he was an active member of the MCC but later on, he switched over himself and joined People War Group (PWG). It was because of such rivalry between the MCC and PWG, Ramesh Sao was killed by the MCC extremists. The respondents have referred the circular, contained in Letter No. 1972/C, dated 9th August, 2002, circulated vide Memo No. 56, dated 4th September, 2000 and have taken plea the definition of 'dependent, ' as mentioned in the circular for compassionate appointment, while includes widow of the deceased/dependent husband of the deceased/dependent son/dependent unmarried daughter and dependent widow daughter -in - law (wife of son), 'brother ' of a deceased does not come within the definition of dependent. ' In view of the said provision, no relief can be granted to the petitioner Santosh Prasad. There being no merit, this writ application is hereby dismissed.