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1997 DIGILAW 758 (PAT)

Mahto Paswan v. State Of Bihar

1997-10-22

RADHA MOHAN PRASAD

body1997
Judgment Radha Mohan Prasad, J. 1. The petitioner in this writ petition has prayed for quashing of the order contained in Memo No.14/mu dated 31-12-96 as contained in Annexure 6, whereby and whereunder, the claim of the petitioner for appointment as chaukidar has been rejected and the claim for appointment of respondent no.6 in place of his deceased father muni Lal Paswan has been accepted in the light of the provisions contained in home (Police) letter No.10129 dated 6-11-91. 2. It appears that one Muni Lal paswan was Chaukidar in Circle No.2/3, bariarpur P. S. in the district of Munghyr due to illness of Muni Lal Paswan, the petitioner started working in his place in leave vacancy. It is claimed that subsequently on 14th March, 1991 the petitioner was appointed as Chaukidar on regular basis in the said circle and was paid till December, 1992. However, when from January, 1993 the payment of his salary was not made, he filed cwjc No.5502 of 94 seeking direction to the respondents to pay his up-to-date salary. This Court, by judgment and order dated 9th March, 95, contained in annexure-3 held that the petitioner had not been provided with any order of appointment to the post of Chaukidar till date. However, the Court held that as the respondents were taking work from the petitioner the said post cannot be treated as vacant and the order of appointment in favour of respondent No.6 (Annexure-8 to the counter-affidavit of respondent No.6 filed in the said case) was wholly illegal. However, the court directed that the petitioner be paid salary from January, 93 till date and to fill up the post in accordance with law after considering cases of both the petitioner as well as respondent No.6. The Court also directed that respondent No.6 be not given any weightage on the ground of compassionate appointment. Regular appointment was directed to be made immediately and must be within three months and further that till such regular appointment is made, the petitioner would continue to function as Chaukidar and receive salary upto such period. 3. On 3-7-95, vide letter No.633 (vide Annexure-4) petitioners service was thereafter terminated and the service of respondent No.6 was confirmed. The validity of the said order was also challenged by the petitioner in cwjc No.4817 of 95, which was finally disposed of on 26-7-96 (Annexure-5 ). 3. On 3-7-95, vide letter No.633 (vide Annexure-4) petitioners service was thereafter terminated and the service of respondent No.6 was confirmed. The validity of the said order was also challenged by the petitioner in cwjc No.4817 of 95, which was finally disposed of on 26-7-96 (Annexure-5 ). During the pendency of this writ petition Annexure-A to the counter- affidavit was filed in the said case, wnereby the District Magistrate cancelled the appointment of respondent no.6. Therefore, the prayer of the petitioner for quashing that part of the impugned order became infructuous. However, this Court directed the authority to allow the petitioner to continue against the post of Chaukidar until regular appointment is made, and further to show that the matter relating to appointment of the petitioner be considered strictly in accordance with law. Thereafter, the present impugned order contained in Annexure-6 was passed. 4. It is contended by the learned counsel for the petitioner that the impugned order has been passed in gross violation of the direction of this Court, inasmuch as the respondent-authorities have completely ignored the decision of this Court in CWJC No.5502/94 (Annexure-3 wherein this Court directed for not giving any weightage to the respondent No.6 on the ground of compassionate appointment. In this regard, while referring to subsequent order passed in CWJC No.4371/95, learned counsel for the petitioner contended that the Court repeatedly did not allow the appointment of respondent No.6 on compassionate ground to continue, yet respondents authorities have passed the impugned order ignoring all rules and norms including Articles 14 and 16 (1) of the Constitution of India. 5. Learned Counsel for the State contended that this Court never held that no appointment on compassionate should be made, even if rule permits. On the contrary, in both the orders this court directed for making appointment in accordance with law after consideration of cases of both the petitioner as well as respondent No.6. As such, the respondents authorities considered the case of both and accepted the claim of respondent No.6 for appointment in place of his deceased father Muni Lal paswan in the light of the provision contained in Home (Police) letter No.10129 dated 6-11-91 (Annexure-7), whereby the general provision relating to appointment on compassionate ground has been relaxed in the case of appointment of Chaukidar and said appointment is to be made by a committee headed by the District Magistrate. 6. 6. I find substance in the submis sion of the learned Counsel for the state. This Court in its earlier direction never restrained the respondents authorities from making appointment on the post in question on the compassionate ground. The Court directed to filling of the vacant post in accordance with law on consideration of the cases of the petitioner as well as respondent no 6 within a fixed time The only rider, which the Court put was that no weightage should be given to respondent No 6 of his appointment on compassionate ground 7. The impugned order itself mentions that it has been issued in the light of the provision contained in the aforementioned government decision learned Counsel for the petitioner has failed to point out any rule by virtue of which the impugned order appointing respondent No 6 as Chaukidar on compassionate ground after the death of his father, can be held to be bad and not permissible It was however, contended by the learned Counsel for the petitioner that the principle regarding appointment on compassionate ground was evolved only to meet the immediate need of the family members of the deceased govt servant after their death and not to allow such appointments to be made after lapse of long period. 8. 8. In this regard he also referred to various decisions of this Court as well as of the Apex Court, which, in the facts and circumstances of this case, are of no avail to the petitioner There cannot be any dispute that the appointment on compassionate ground are given in order to meet the hardship faced by the family members of the deceased government servant dying m harness But at the same time, it cannot be disputed that the State Government has the power to relax the existing provision introducing new scheme for giving such appointment keeping in view the compassion of a family which has to face after the death of Us employee, who rendered long dedicated service In the instant case the State Government, vide home (Police) letter No 10129 dated 6-11-91 made certain relaxation in the general provision relating to appointment on compassionate ground and respondent No 6 has been given appointment in the light of the said provision, in which I do not find any infirmity In absence of any bar on the power of the State Government making general relaxation relating to such compassionate appointment, m my opinion, the validity of the impugned order cannot be assailed Thus, I do not find any merit in the writ petition which is dismissed petition Dismissed.