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2011 DIGILAW 2340 (PAT)

Uttam Kumar v. State of Bihar

2011-11-24

MIHIR KUMAR JHA

body2011
ORDER Mihir Kumar Jha, J. Heard learned counsel for the petitioner and counsel for the State. 2. The petitioner in this writ application has made a prayer for reconsideration of his case for being appointed on a Class-III post by way of compassionate appointment. Learned counsel for the petitioner would submit that the petitioner had already passed Intermediate Examination in the year 1994 and as such when the father of the petitioner had died on 25.2.2003 in harness while working as an Assistant Teacher in Rajkiya Kirit Uchaya Vidyalaya, Pauthu, Aurangabad(Bihar), he ought to have been recommended by the District Education Establishment Committee for being appointed on a Class-III post instead of Class-IV post. Learned counsel for the petitioner has also submitted that the subsequent appointment given to the petitioner on Class-IV post on 31.5.2004, though accepted by the petitioner, could not have bound him to continue on such Class-IV post, inasmuch as, others having Intermediate were given the benefit of both recommended and appointed on Class-III post. 3. Counsel for the State, on the other hand, would submit that when the father of the petitioner had died on 25.2.2003, the case of the petitioner was placed before the District Compassionate Appointment Committee headed by the Collector of the district, which had recommended the petitioner against a Class-IV post and in terms of the said recommendation, the appointment of the petitioner was also made on a vacant Class-IV post of Peon. He would, accordingly, submit that after three and half years of the petitioner having continued in service against a Class-IV post, he could not have raised a dispute as with regard to his being appointed by way of recommendation against a Class-III post. 4. In reply, counsel for the petitioner would place reliance on an order of the learned single Judge dated 22.3.2005 in CWJC No. 3389 of 2004 wherein an observation was made in the case of Sanyukta Kumari for reconsidering her recommendation on a Class-III post. 5. In the considered opinion of this Court, the petitioner will be stopped from asking a relief of recommendation of his case for appointment on compassionate ground, inasmuch as, it was the mother of the petitioner who had filed an application for immediate appointment of the petitioner on a vacant sanctioned post. 5. In the considered opinion of this Court, the petitioner will be stopped from asking a relief of recommendation of his case for appointment on compassionate ground, inasmuch as, it was the mother of the petitioner who had filed an application for immediate appointment of the petitioner on a vacant sanctioned post. The same would be evident from the following wordings of the order of appointment of the petitioner dated 31.5.2004:- <span class="Hfont">^^dk;kZy; ftyk f’k{kk inkf/kdkjh] vkSjaxkckn vkns’k eks0 jk/kk nsoh iRuh& Lo0 lquhy dqekj] f’k{kd xkze&iks0 vbZ;kjk Fkkuk&djih ftyk&vjoy ¼fcgkj½ ds vH;kosnu fnukad& 25&5&2004 ij fopkj djrs gq, bl dk;kZy; ds Kkikad& 302 fnukad 28&2&2004 dh dafMdk&5 dks vkaf’kd :i ls la’kksf/kr djrs gq, Jh mRre dqekj firk& Lo0 lquhy dqekj] xzke&iks0 vbZ;kjk Fkkuk djih ftyk& vjoy ¼fcgkj½ dks jktdh;d`r mPp fon~;ky;] iksFk ¼vkSjaxkckn½ esa vkns’kiky ds fjDr in ij prqFkZ oxhZ; ds osrueku& 2550&55&2660&60&3200 esa ,oa le; le; ij ljdkj n~okjk Lohd`r thou ;kiu HkRrs ,oa vU; HkRrksa ds lkFk muds ;ksxnku dh frfFk ls inLFkkfir fd;k tkrk gSA vU; ‘krsZa iwoZor jgsaxhA g0@& dkSys’k jtd ftyk f’k{kk inkf/kdkjh vkSjaxkcknA Kkikad 690 vkSjaxkckn] fnukad 31-5-04** 6. As would be evident, the mother of the deceased employee, the father of the petitioner, was a person who was affected on account of the death of bread earner and therefore, if the petitioner, being the dependent of the said deceased employee, was recommended by the District Compassionate Appointment Committee for being appointed against a Class-IV post and if the appointing authority, namely, the District Education Officer, Aurangabad had found a vacant Class-IV post available for appointment of the petitioner, nothing can be said against such prompt conduct of the respondents, who were to only require to rehabilitate the family of the deceased employee as early as possible. 7. The very fact that an offer of appointment on compassionate ground to the petitioner was given in a period of one year and the same was also unconditionally accepted by the petitioner would make him disentitled to raise any question as with regard to his being entitled for appointment on a Class-III post. Compassionate appointment is not given on the basis of merit so that a person can claim a higher post only because he was very meritorious. Compassionate appointment is not given on the basis of merit so that a person can claim a higher post only because he was very meritorious. Such appointment on the basis of merit in a regular appointment can be claimed only by the person if someone being less qualified or placed below in the merit list gets appointed. There would be no endless compassion as was also held by the Apex Court in the case of State of Rajasthan Vs. Umrao Singh reported in 1994(6) SCC 560 . That apart, this Court would find that the case of Sanyukta Kumari (supra) was wholly justifiable, inasmuch as, Sanyukta Kumari had never been appointed against a Class-IV post. She had moved this Court for a direction for appointment and at that point of time, she was noticed that a recommendation was made for her appointment on Class-IV post and this Court, accordingly, had made a request to the appropriate Compassionate Appointment Committee to consider her case for being recommended against a Class-III post. Such order of this Court would not be a binding precedent specially when the facts of the case of the petitioner are completely distinguishable. 8. At this stage, learned counsel for the petitioner has raised a plea of discrimination and in this regard as referred to paragraph no.6 and 11 of the writ application, which reads as follows:- “6. That the Compassionate Appointment Committee headed by the District Magistrate, Aurangabad in its meeting dated 29.12.2003 have recommended the name of the petitioner for appointment on IV grade post, arbitrarily and illegally, ignoring the educational qualification, Govt. Resolution contained in letter no. 1078 dated 01.07.2006. 11. That the District Compassioante Appointment Committee, Aurangabad (Bihar) headed by the District Magistrate, Aurangabad in its meeting have recommended the name of several dependent candidates for to be appointed on III grade post, however, whose appointment was made earlier on IV grade post, by the compassionate Appointment Committee.” 9. As noted above, neither of the two paragraphs would give any inkling as with regard to any specific plea of discrimination, inasmuch as, not a single person has been named therein. Faced with this situation, learned counsel for the petitioner would submit that he has filed a supplementary affidavit yesterday. As noted above, neither of the two paragraphs would give any inkling as with regard to any specific plea of discrimination, inasmuch as, not a single person has been named therein. Faced with this situation, learned counsel for the petitioner would submit that he has filed a supplementary affidavit yesterday. In the record, which has been placed today before this Court, there is no such supplementary affidavit of the petitioner and in any event, such a belated supplementary affidavit filed at the stage of final hearing of the case cannot be entertained. If such a process is allowed to be encouraged, no writ application can be ever disposed of. 10. In that view of the matter, this Court does not find any merit in this writ application and the same is, accordingly, dismissed.