Md. Danish Eqbal vs State of Jharkhand

Heard Mr. Ashrafuzzaman Khan, learned counsel for the petitioner, as well as Mr. Dhananjay Kumar Dubey, learned Sr.S.C.I appearing for the

Respondent-State.

In this writ application, the petitioner has sought for issuance of appropriate writ upon the concerned respondents to appoint petitioner on the

appropriate post in lieu of death of his father who died in harness on 25.02.1999 and thereafter petitioner was appointed as Child Police on 8.7.2000

and worked continuously up to 2006 and further prayed for direction upon the respondents to give alternate suitable post in the official work by

considering his services as continued right from the date of initial appointment i.e. from 8.7.2000 with all consequential benefits.

Shorn of unnecessary details, the facts, as has been disclosed in the writ application, are that the father of the petitioner was appointed on

15.12.1983 on the post of Constable having Police No. 3711 and he died in harness on 25.2.1999 leaving behind 2 minor sons and 2 minor daughters

without any other alternate source of income. The mother of the petitioner has also died and at present, there is no one to look after them except his

maternal grandfather, who is also a retired Government servant, who after death of his son-in-law made an application before the authorities, inter alia,

pleaded therein for benefit of compassionate appointment to this petitioner, who happens to be the eldest son of the deceased and as per natural Rule

entire liabilities lies upon his shoulder and pursuant thereto, vide letter dated 25.04.2000, petitioner was appointed on the post of “Child Police†and

was given posting at Jamshedpur. Pursuant to the aforesaid letter of appointment, petitioner joined on 8.7.2000 and allotted child police no. 248 and his

service book was opened on 11.8.2001 after completion of all formalities like medical check up on 8.6.2000 and height measurement on 12.5.2000.

The respondents authorities asked the petitioner to bring the eye medical fitness certificate than petitioner approached before the Doctor’s of

railway hospital than the doctor at the said time asked the petitioner to bring the certificate of doctor from outside than applicant got the test of his eye

from the outsider doctor on 16.5.2000 and submitted on 17.5.2000 due to absence of doctor, the further checkup of eye was completed on 8.6.2000

and since the date of appointment petitioner was regularly getting his consolidated amount as salary up to year 2006 without any break in duty, but

suddenly his salary has been stopped and he has been orally removed from his duties without assigning any reason. The petitioner repeatedly visited

before the authorities for his appointment but no action was initiated by the respondents. Vide letter dated 17.1.2011, the respondents authorities have

asked the present petitioner to appear before the Rail Police Centre for eye test on 27.1.2011 and pursuant thereto, the petitioner reported for his eye

test and on 28.1.2011 alongwith Inspector of Ranchi Rail Police, but test was not conducted and thereafter no communication came from the

respondents that when the eye test shall be conducted. It has been further averred that after much wait and watch petitioner also invoked the Right of

Information Act, 2005 on 8.10.2012 seeking information about the next date of eye test and cause of nonconduction of the test on the fixed date when

petitioner was present alongwith Ranchi Railway police personnel at RIIMS, Ranchi, but till date no reply has come from the respondents. Left with

no alternative and efficacious remedy, the petitioner has been constrained to approach this Court under Article 226 of the Constitution of India for

redressal of his grievancesÂ

Learned counsel for the petitioner has vehemently submitted that the petitioner has already been appointed right in the year 8.7.2000 and he

continued to work up to 2006 without any break but without any reason he has been stopped from working and now at this juncture he is major and he

is able to work in any alternate post and is also ready to undergo eyetest for his job. Learned counsel further submits that the petitioner is facing acute

financial crisis and all burden is lying on his shoulder for carrying out the basic need of his family and if appointment shall not be continued as regular

service from last initial appointment, then the petitioner shall suffer irreparable loss and injury and it shall frustrate the aim and object of the

compassionate appointment.

 In support of his submissions, learned counsel for the petitioner has referred to the following citations: -

(i) 2011 (4) JCR 281 (Jhr), Anil Kumar Das & Ors.-vs.-the Union of India and others;

(ii) 1991 (1) PLJR 67, Sakhichand Yadav-vs.-The State of Bihar & others andÂ

(iii) 2010 (1) JCR 50 (Jhr), Ram Kishun Ram-vs.-Central Coal Fields Ltd. & others

Controverting the averments made in the writ application, a counter affidavit has been filed by the respondents, wherein, it has been submitted that

the petitioner was paid his salary regularly up to month of November, 2006 and during the month of November, he was found absent from his duty as

well as in the barrack in course of routine checking by the DayHavildar. On being asked orally by the Day Havildar, the petitioner did not advance any

excuse about his misconduct pertaining to absence from the duty without information, failing which the matter was reported to the disciplinary

authority (Superintendent of Railway Police). Consequently, his salary was withheld on 20.11.2006 vide district order no. 998/2006 and the delinquent

was directed to appear in orderly room for hearing but he never appeared before the disciplinary authority of his being absconder since long. It has

been further averred that in compliance of the order of the Police Headquarter, Ranchi, the petitioner was called for vide letter dated 17.01.2011. The

petitioner appeared before the Superintendent of Railway Police, Jamshedpur on 27.01.2011 and submitted an application mentioning his inability to

perform Police duties as he had lost the vision in his right eye and further prayed for appointment in the rank of a Clerk or other post. It has been

further stated that when the petitioner was about to be regularized as a Constable, the medical Superintendent of M.G.M. Hospital, Jamshedpur was

requested vide letter dated 16.01.2007 to get the petitioner examined by the eye specialist Doctor and in the examination report of the required test

conducted on 18.01.2007, the Doctor had opined the various eye disorders and lastly referred the patient to the higher centre for other specific

investigation. It has been further averred that the petitioner as advised by the Doctor of M.G.M. Jamshedpur, was sent to RIMS (Ranchi) along with

Inspector of Railway Police for the desired eye test on 28.01.2011 and for this purpose the Superintendent of RIMS was requested vide letter dated

18.05.2007, but, the test was not conducted on that date and thereafter keeping his unwillingness to perform police duties, in view the then

Superintendent of Railway Police (Sri Krisna Vijay Singh) postponed the proposed eye test and as a result, no intimation for the said purpose was sent

to the petitioner. The then Superintendent of Railway Police had sent a letter vide memo dated 07.02.2011 enclosing the copy of petitioner’s

application to the Inspector General of Police (Headquarter) Jharkhand, Ranchi for seeking instruction to decide the point of appointment in other rank

as desired by the petitioner. It is not correct to say that the petitioner was stopped from working without any reason, rather, the petitioner himself

absconded from his duty without any permission or intimation to the competent authority and, therefore, his salary was stopped, as it was essential in

disciplinary view point. After attaining the age of eighteen and above, he reported back and requested for his appointment in other ranks of Police

Department in lieu of the post of a Constable, which clearly shows that he doesn’t possess the required fitness of a Constable. However the

Police Headquarter, Jharkhand, Ranchi was requested to expedite the case of re-appointment of the petitioner with the compassionate view.

Repudiating the contentions made in the writ application, a counter affidavit has been filed by the respondent no. 2. In the counter affidavit, it has

been, inter alia submitted that the present writ petition has been filed to appoint the petitioner on the appropriate post in lieu of death of his father who

died in harness on 25.02.1999 and thereafter petitioner was appointed as Child Police on 8.7.2000 and worked continuously up to 2006 but suddenly

stopped from his duties without any alternate appointment. The then DGP and IG Bihar, Patna passed a Police Order dated 11.08.1988 for the safety

of the children of the police, who died in encounter or in course of duty and further ordered that in every District, two posts should be reserved for the

appointment of the children. In the said Police order, apartfrom other terms and conditions, it has been ordered that after attending of majority age, if

the Child desire to work as Police, then he will be appointed for the same, but the required physical fitness and educational qualification must be

fulfilled. It has been further averred that there is no provision to directly appoint the Child Police as the Constable and there is no provision of

necessary examination or training.     Â

Learned counsel for the Respondents-State apartfrom reiterating the submissions made in the counter affidavit, has submitted that it is not correct

to say that the petitioner was stopped from working without any reason, rather, the petitioner himself absconded from his duty without any permission

or intimation to the competent authority and, therefore, his salary was stopped, as it was essential from the disciplinary point of view. Learned counsel

further submits that after attaining the age of eighteen and above, he reported back and requested for his appointment in other ranks of Police

Department in lieu of the post of a Constable, which clearly shows that he doesn’t possess the required fitness of a Constable

After hearing the learned counsel for the respective parties and on perusal of the records, this Court is inclined to accede to the prayer of the

petitioner due to the following facts and reasons : -

(i) The petitioner was appointed right in the year 2000 and he continued to work up to 2006 without any break.

(ii) The petitioner is facing acute financial crisis and all burden is lying on his shoulder for carrying out the basic need of his family and if appointment

shall not be continued as regular service from last initial appointment, then the petitioner shall suffer irreparable loss and injury and it shall frustrate the

aim and object of the compassionate appointment

(iii) Law has been fairly well-settled that once a person is appointed in accordance with law, he acquires a substantive right on the post and his

services cannot be terminated except on the grounds and in accordance with the procedure laid down in law, as also without compliance with the

principle of natural justice.

(iv) The view of the C ourt gets fortified by the decision of the Hon’ble Apex Court reported in (1994) 4 SCC 460, Narendra Kumar Chandla-vs.-

State of Haryana & Others, wherein the Hon’ble Apex Court in paragraph 7 has held : -

 “7. Article 21 protects the right to livelihood as an integral facet of right to life. When an employee is afflicted with unfortunate disease due to

which, when he is unable to perform the duties of the posts he was holding, the employer must make every endeavor to adjust him in a post in which

the employee would be suitable to discharge the duties.â€​

 Similar view has been expressed by the Hon’ble Apex Court in the decision reported in (1996) 10 SCC 570, Jaswant Singh and another-vs.-

State of Punjab.      Â

In view of the discussions made in the foregoing paragraphs coupled with the consistent legal position, since, admittedly, the petitioner’s prayer

for compassionate appointment was considered and he was offered appointment, such appointment cannot be withdrawn on the ground of the

petitioner suffering from physical deformity. The respondents authorities are, therefore, directed to consider the employment of the petitioner in any

other job which he could render even with his physical disability or deformity pointed out by the Medical Board. The decision on the petitioner’s

prayer in this regard be taken and effectively communicated to the petitioner within a period of two months from the date of receipt/communication of

this order.

With the aforesaid observations, this writ petition stands disposed of.      Â