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2002 DIGILAW 304 (PAT)

Indu Srivastava v. State Of Bihar

2002-03-05

R.N.PRASAD

body2002
Judgment 1. The husband of the petitioner who was on class-II post, died in June, 1998 while serving the Government of Bihar as an Artist in the Department of Information and Public Relation. The petitioner filed an application for his appointment on compassionate ground. The case of the petitioner was forwarded for appointment to class-III post. The compassionate committee rejected the claim of the petitioner for appointment on compassionate ground on 13.9.1999 on the ground of over-age. The petitioner challenged the said order in C.W.J.C. No. 6897/2002. The writ petition was disposed of on 4.9.2000, Annexure-2, stating therein that petitioner is aged about 48 years and her husband died in harness, and the case was remitted to the respondent to re-consider her case for appointment on compassionate ground on relaxation of age and communicate to her within a period of three months from the date of receipt/production of copy of the order. The order was not complied with and as such the petitioner filed M.J.C. no. 38/2001 for initiating a competent proceeding. However, during pendency of M.J.C. a letter bearing memo no. 1395 dated 16.3.2001 was issued by the Department of Personnel and Administrative Reforms, Government of Bihar stating, inter-alia, to initiate a proceeding for appointment of the petitioner on class-IV post, Annexure-3. The petitioner has thus filed writ petition for issuance of a writ in the nature of mandamus commanding the respondents not to give effect to the appointment letter going to be issued and to modify it suitably in accordance with law. i.e. instead of class-IV post the appointment letter be issued for class-III post as recommended and also for issue of appointment letter with effect from 13.9.1999, the date of meeting of the Central Compassionate Committee or from the date on which the name of the petitioner was recommended for appointment. 2. The provision for appointment on compassionate ground is exception to the normal rule of appointment. The appointment on compassionate ground is not a vested right. The object of appointment on compassionate ground is to enable the family to get over financial crisis due to death of the sole bread earner. In the case cf Umesh Kumar Nagpal V/s. State of Haryana and others, (1994) 4 S.C.C. 138 , the Apex Court has held that as a rule appointments in public services should be made strictly on the basis of open invitation of applications and merit. In the case cf Umesh Kumar Nagpal V/s. State of Haryana and others, (1994) 4 S.C.C. 138 , the Apex Court has held that as a rule appointments in public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object being to relieve the family of the financial destitution and to help it get over the emergency, the provision of employment in lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. 3. In the case of Director of Education (Secondary) and another V/s. Pushpendra Kumar and others, (1998) 5 S.C.C. 192 similar question was involved. The writ petitions were filed before the High Court for appointment on class-III post. The writ petitions were allowed by the High Court with direction for appointment on class-III post provided the petitioners possessed necessary qualification for such post and that such appointment could be made in the institution in the district and if there was no such vacancy then supernumerary post should be created. The judgment of the High Court was challenged before the Apex Court. The Apex Court held that the object of appointment on compassionate ground is to enable the family of deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. The judgment of the High Court was challenged before the Apex Court. The Apex Court held that the object of appointment on compassionate ground is to enable the family of deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. Appointment on such ground is purely humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions of making appointment by following prescribed procedure. It is in the nature of an exception to the general provisions. An exception cannot subsume the main provision and thereby nullify the main provision by taking away completely the right conferred by the main provision. The appointment on such ground is in the nature of an exception to the general provisions, and it does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependant of a deceased employee. The object underlying the provision for giving employment to a dependant of a person employed on teaching/non-teaching staff dies in harness would be achieved if the said provision in the Regulations is construed to mean that in the matter of appointment of a dependant of a teaching/non-teaching staff in a non-government recognised aided institution dying in harness, if a post in class III is not available in the institution in which the deceased employee was employed or in any other institution in the district, the dependant would be appointed on a class IV post in the institution in which the deceased employee was employed and for that purpose a supernumerary post in class IV may be created. If the Regulations are thus construed, the respondents-applicants could only be appointed on a class IV post and they could not seek a direction for being appointed on a class III post and for creation of supernumerary post in class III for that purpose. If the Regulations are thus construed, the respondents-applicants could only be appointed on a class IV post and they could not seek a direction for being appointed on a class III post and for creation of supernumerary post in class III for that purpose. The direction given by the High Court cannot be upheld whereby the respondents have been directed to be appointed on a class III post if thev possess the requisite qualifications for such a post and in case no class III post is available, then a supernumerary class III post be created for the purpose of such appointment. 4. In the case of Rupendra Kumar Singh V/s. The State of Bihar & Ors., 1999 (1) PLJR 842 in similar situation a Bench of this Court held that this Court is unable to grant any relief to the petitioner by directing the respondent University to appoint the petitioner on class III post on compassionate ground. The stand of the University that just because there are vacancies in class III post, all such vacancies cannot be filed up on compassionate ground is justified. However, it was observed that this Court does not pass any order in favour of the petitioner save and except observing that if there is any open selection for appointment to class III post and if the petitioner applies pursuant to such selection, in that case the petitioners case may be considered on merits and in accordance with law. However, if the petitioner appears in such selection process for recruitment to the post of clerk, in that case his candidature should not be debarred on the ground of age and his age should be suitably relaxed for the period during which he worked on class IV post. 5. Therefore, it is evident that appointment on compassinate ground is not vested right of the person who seeks appointment on the said ground. More-over, appointment on such ground is exception to the general rule to allow immediate financial relief to the family of the deceased. However, learned counsel for the petitioner relied upon a decision in the case of Surya Kant Kadam V/s. State of Karnataka & Ors. 2001 (4) P.L.J.R. 19 (S.C.) wherein it has been held that despite being senior and having necessary qualification, the appellant was not given appointment as Sub-Inspector of Excise, whereas respondent nos. However, learned counsel for the petitioner relied upon a decision in the case of Surya Kant Kadam V/s. State of Karnataka & Ors. 2001 (4) P.L.J.R. 19 (S.C.) wherein it has been held that despite being senior and having necessary qualification, the appellant was not given appointment as Sub-Inspector of Excise, whereas respondent nos. 3 & 4 similarly situated with the appellant were appointed as Sub-Inspector of Excise, such treatment amounts to hostile discrimination and infringes mandate of Article 16 of the Constitution of India. In the instant case no such ground of hostile discrimination has been taken nor any fact has been brought on the record to show that there was any discrimination by the respondents. Thus the aforesaid case is not applicable in the facts and circumstances of the case. 6. Thus on consideration, I find that the petitioner has no right/legal right to claim appointment on class III post as the appointment on compassionate ground is exception to the general rule of appointment and the object is to provide financial assistance to the family of the deceased. 7. Thus on consideration as discussed above, I find no merit in the writ petition. Accordingly, it is dismissed.