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2002 DIGILAW 1164 (PAT)

Lakshmi Bhatt v. State Of Bihar

2002-10-30

CHANDRAMAULI KR.PRASAD

body2002
Judgment 1. This application has been filed for issuance of a writ in the nature of certiorari for quashing the order dated 27.12.2001 (Annexure-1) whereby the prayer of the petitioner for grant of appointment on compassionate ground has been rejected. 2. Bereft of unnecessary details, the facts giving rise to the present application, are that the husband of the petitioner, namely, Bhupendra Bhatt was a Class IV employee in the department of Mines and Minerals of the Government of Bihar. He died, .while in service, on 15.5.2000. Petitioner applied for appointment on compassionate ground on 22.7.2000. She claims that she has passed Class VII Examination. Her prayer for appointment on compassionate ground was considered in the meeting of the District Compassionate Committee held on 7.2.2001 but she was declined appointment on the ground that she does not possess the requisite qualification. Accordingly, by communication dated 12th of April, 2001 (Annexure-6) she was informed about the decision and told that her application has been rejected on the ground that she did not possess the requisite qualification. 3. Aggrieved by the same, petitioner preferred a writ application before this Court which was registered as C.W.J.C. No. 13634 of 2001 (Lakshmi Bhatt V/s. State of Bihar & Ors.) and a learned Single Judge of this Court, by order dated 11.10.2001, set aside the aforesaid order and directed respondent no. 3 of the said writ application to reconsider the matter. While allowing the writ application, this Court referred to the submission made by the petitioner that in case of ladies, the qualification can be relaxed and the candidate is only required to be a literate. Same reads as follows : "It is submitted by learned counsel appearing on behalf of the petitioner that as per Clause 6 of the Government Circular dealing with the appointment on compassionate ground, a lady candidate is required to be literate and therefore, the petitioner was not required to be Class VIII passed. The Circular of the Government has been brought on record, marked as Annexure 5 to the writ application. Clause 6 of the Circular states that the qualification in cases of female candidate can be relaxed and the candidate is only required to be literate." 4. The Circular of the Government has been brought on record, marked as Annexure 5 to the writ application. Clause 6 of the Circular states that the qualification in cases of female candidate can be relaxed and the candidate is only required to be literate." 4. In the light of the order of this Court, the case of the petitioner was again considered and by the impugned order, her prayer for appointment on compassionate ground has been rejected. While rejecting the prayer of the petitioner, respondent no. 4 had taken into consideration Resolution No. 3577 dated 25.4.1997 which has, inter alia, provided the minimum qualification for appointment to the post of Class IV employee. 5. It is the stand of the petitioner that Resolution No. 13293 dated 5.10.1991 provides for appointment on compassionate ground and it has not laid down minimum qualification for appointment on compassionate ground. It has also been pointed out that by Resolution No. 9178 dated 31.8.1987, in the case of a lady, seeking employment on compassionate ground, the educational qualification has been waived and such a candidate is required to acquire knowledge of reading and writing within two years. It has also been pointed out that the requirement of knowledge of cycling has also been waived in the case of ladies. 6. Counter affidavit has been filed on behalf of the respondents in which it has been stated that the petitioner does not possess qualification prescribed for appointment on a Class IV post as provided in the Circular of the State Government dated 25th of April, 1987 (Annexure-8) and the said Circular does not indicate for relaxation of qualification. The prayer of the petitioner for appointment on compassionate ground has been rejected as she does not possess the educational qualification in terms of the said Circular. 7. Mr. Tara Nath Jha, learned counsel appearing on behalf of the petitioner submits that Resolution No. 13293 dated 5.10.1991 of the State Government providing for appointment on compassionate ground, has not prescribed any qualification for appointment on compassionate ground, the qualification prescribed earlier shall govern the field. He points out that by Resolution No. 9178 dated 31.8.1987, the qualification prescribed for appointment on compassionate ground is to be relaxed in case of a lady and the only rider is that such a candidate has to acquire proficiency in reading and writing within two years of her appointment. He points out that by Resolution No. 9178 dated 31.8.1987, the qualification prescribed for appointment on compassionate ground is to be relaxed in case of a lady and the only rider is that such a candidate has to acquire proficiency in reading and writing within two years of her appointment. I do not find any substance in the submission of the learned counsel. 8. It is relevant here to state that in the Circular dated 5.10.1991, it has been specifically stated that such candidate shall not be appointed who does not possess the requisite qualification and the only relaxation which has been made in the case of ladies is that she may not possess the art of cycling. Resolution dated 5.10.1991 has specifically rescinded all other Circulars issued earlier by the Personnel and Administrative Department in relation to appointment on compassionate ground. Resolution dated 31.8.1987, on the basis of which the petitioner claims to be possessing the qualification in view of the specific decision of the State Government in its Resolution dated 5.10.1991, stands rescinded and as such, petitioner cannot be held to be eligible in terms of the said Resolution. 9. It is also relevant here to state that the case of appointment of the petitioner on compassionate ground arose after the decision of the State Government dated 25th of April, 1997. The said Circular, inter alia, provides for qualification of passing Vlllth Class examination as also knowledge of cycling. However, the knowledge of cycling for the ladies seeking appointment on compassionate ground, has been relaxed. It is not the claim of the petitioner that she had passed the Vlllth class examination. In fact, her claim is that she has passed only Vllth class examination. 10. The question as to whether a person claiming appointment on compassionate ground is required to possess the qualification as prescribed by the State Government in its Circular No. 3577 dated 25.4.1997, came up for consideration before a Division Bench of this Court in the case of Laxmi Choudhary V/s. The State of Bihar and others reported in 2002 (1) PLJR 79 in which it has been held that the candidate claiming appointment on compassionate ground is to fulfill the requisite qualification prescribed for the post. Paragraph no. Paragraph no. 4 of the judgment which is relevant for the purpose, reads as follows : "The very object of appointment on compassionate ground is to mitigate the hardship caused to the family due to untimely death of the bread-earner. The law is well-settled that even for appointment on compassionate ground, the dependent has to fulfil the requisite qualification prescribed for the post. In the other words, the only concession shown to the dependent of the deceased employee is that out of turn appointment is given without following the procedure consistent with the requirements of Articles 14 and 16 of the Constitution of India. The compassionate appointment cannot be claimed as a matter of right irrespective of the fact that minimum qualification prescribed for the post is not fulfilled by the candidate concerned. The law is equally well-settled that it is for the State Government to fix a qualification for a particular post depending upon the need of the service for which the appointment is to be made. The court cannot lay down a policy prescribing qualification for a particular post. The court will interfere only when it is found that the prescribed qualification is either arbitrary or violative of Articles 14 and 16 of the Constitution. In other words, if the qualification has no nexus with the nature of service for which the appointment has to be made, the court may in the given case strike down the provision." 11. In view of the aforesaid, I have no hesitation in holding that the petitioner does not possess the requisite qualification for appointment on compassionate ground. 12. Mr. Jha then contends that persons having similar qualification as that of the petitioner, have been appointed on compassionate ground. In this connection, he has drawn my attention to the Resolution of the District Compassionate Committee (Annexure-9) in which many persons who are either illiterate or have passed the Vllth class examination, have been appointed. Mr. Jha high-lights that the action of the respondents in denying the petitioner the appointment on compassionate ground, when persons similarly situated have been so appointed, is discriminatory and hence, she is also entitled to be appointed on compassionate ground. Mr. Jha high-lights that the action of the respondents in denying the petitioner the appointment on compassionate ground, when persons similarly situated have been so appointed, is discriminatory and hence, she is also entitled to be appointed on compassionate ground. From the Resolution of the District Compassionate Committee referred to above, it is evident that the persons who had passed Vllth class examination as also illiterate persons have been appointed on compassionate ground but, in my opinion, this itself shall not entitle the petitioner for being appointed on compassionate ground. In case, the respondents have granted appointment on compassionate ground to persons not eligible in terms of the qualification laid down by the State Government, their appointment can be faulted but that itself, shall not give any right to the petitioner for appointment on compassionate ground. As it is well settled that an illegal favour shown to an individual, shall not entitle every individual to seek that favour. In sum and substance, the direction sought for by the petitioner for appointment on compassionate ground on the plea of equality although not possessing the minimum educational qualification, would amount to giving a direction to the respondents to commit another illegality. This Court would not like to do that as any direction to commit another illegality to negative the challenge of discrimination, would be destructive to the rule of law. 13. Mr. Jha then appeals to the court to treat the petitioner with sympathy. He points out that the petitioner is a widow and has to look-after a large family and to mitigate her hardship this Court should exercise its prerogative and direct for appointment of the petitioner on compassionate ground. I am conscious of the miseries of the petitioner and her family as also the principle that justice should be blended with sympathy. Admittedly, the petitioner does not possess the requisite qualification and as such, the decision not to appoint her cannot be faulted and the mandamus sought for can not be granted. 14. However, in my opinion, the petitioner should not lose heart. The resolution of the State Government dated 5.10.1991 which has provided for appointment on compassionate ground, as amended by Resolution No. 2822 dated 27.4.1995, contemplates of filing application for appoint- ment on compassionate ground within five years from the date of death of the Government servant. 14. However, in my opinion, the petitioner should not lose heart. The resolution of the State Government dated 5.10.1991 which has provided for appointment on compassionate ground, as amended by Resolution No. 2822 dated 27.4.1995, contemplates of filing application for appoint- ment on compassionate ground within five years from the date of death of the Government servant. It is not in dispute that the petitioners husband died on 15.5.2000 and as such, the petitioner is permitted in law to lay claim till 14th of May 2005. Petitioner, if so advised, may, in the meanwhile, pursue her studies and pass the Vlllth class examination and then lay claim for appointment on compassionate ground within the period referred to above. In case, the petitioner passes the examination and files application before the expiry of the period referred to above, respondents shall consider her case afresh in accordance with law and shall not reject the same on the ground that her prayer for grant of appointment on compassionate ground was rejected earlier. 15. In the result, the writ application is dismissed with the observation aforesaid. No costs.