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2006 DIGILAW 171 (PAT)

Suresh Prasad Kuswaha v. State Of Bihar

2006-02-16

BARIN GHOSH

body2006
Judgment 1. Heard. 2. Employment on the ground of descent is barred by Article 16 of the Constitution, and accordingly, the erstwhile practice of giving an employment to the post of Chawkidar on being nominated by the erstwhile Chawkidar to one of his descended has been declared by a Division Bench of this Court to be a wrong and inappropriate precedent wrongly created by the State. Such kind of nomination, until such time the post was not a Government post, could be held to be valid but since from 1st January, 1990 the post of Chawkidar become a Government post, for appointment in such post question of nomination did not arise. It appears that a post of Chawkidar is available. It appears that the petitioner had applied for that post and it also appears that apart from the petitioner, many others had applied for the self same post. While the application of the petitioner has been rejected on the ground that the erstwhile Chawkidar has not nominated in favour of the petitioner, the Respondent No. 7 has been accorded such appointment on the ground that she is the widow of the erstwhile Chawkidar. The appointment in favour of the Respondent No. 7 has not been made on the basis of nomination by the erstwhile Chawkidar. If the appointment in favour of the Respondent No. 7 had been made on the basis of nomination made by the erstwhile Chawkidar, such appointment would have been absolutely bad. However, there is a policy of the Government to grant appointments on compassionate ground and such appointments are available if the Government employee had died-in-harness to a member of the family of the deceased Government employee. In the event, the Respondent No. 7 had been granted an appointment on compassionate ground, of course such appointment could not be interfere with. In order to get an appointment on compassionate ground, the person seeking the appoint- merit must make an application stating that he or she is seeking an appointment on compassionate ground and such appointment can be accorded if the application is within the four corner of the policy and principally when the Government employee has died-in-harness. If such a compassionate appointment has not been granted to the Respondent No. 7, the appointment granted to the Respondent No. 7 is bad and illegal perse. If such a compassionate appointment has not been granted to the Respondent No. 7, the appointment granted to the Respondent No. 7 is bad and illegal perse. It does not appear that the Government employee died in harness and accordingly, the Respondent no. 7 being his widow could not be accorded a compassionate appointment. The Respondent no. 7. therefore, had been appointed solely on the ground that she is a close relative of the earlier Chawkidar. Article 16 of the Constitution does not permit grant of appointment on such basis and accordingly, the said appointment is illegal. To fill-up the vacancy, which has been created by reason of retirement of the erstwhile Chawkidar, it is obligatory on the part of the State to advertise the post and to fill-up the said post by selecting the best amongst all. Let such steps be taken as quickly as possible but not later than three months from today. 3. After I had dictated the order up to this stage, the learned counsel for the Respondent No. 7 appeared and submitted counter affidavit of the Respondent No. 7. He contended that in terms of the provisions contained in Chawkidar Manual, it is permissible to make a nomination by the employee concern for giving an appointment to the post he was occupying to his nominee after he ceases to be an employee. This Chawkidar Manual held the fort until 31st December, 1989 i.e. until such time the post of Chawkidar was not a Government post and did not carry the financial benefits attached to a Government service. With effect from 1st January, 1990 the post of Chawkidar became a Government post. The moment, it became a Government post Article 16 to the Constitution squarely applied to the same and it being a bar under the said Article not to grant an appointment on descent, the same is pet se not available to the post in question. 4. This disposes of the writ petition.