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2011 DIGILAW 561 (PAT)

Marchchiya Devi v. State of Bihar

2011-04-05

MIHIR KUMAR JHA

body2011
Order Heard counsel for the petitioner and the counsel for Bihar Renewable Energy Development Agency (BREDA). 2. The prayer of the petitioner in this writ application seeking direction for his (sic-her?) appointment on compassionate ground has been sought to be justified by the learned counsel for the petitioner by referring to paragraphs 7 and 12 of the counter affidavit which reads as follows:- "7. That in reply to statement made in paragraphs no. 8, 9 and 13, it is stated that the petitioner's application for appointment on compassionate ground was put up before the Compassionate Committee in its meeting held on 27.8.2005. The Committee recommended that the petitioner did not possess the due eligibility criterian of educational qualification of 8th pass as laid down by the State Government for appointment against Class-IV post as the petitioner was 7th pass. Bihar Renewable Energy Development Agency (hereinafter it would be referred as BREDA) follows the State Government rules in such matters. The Committee also considered that there was only one vacant post of the peon in BREDA on which the appointment of one Shrimati Lalwati Devi, wife of late Laldeo Rai, Steno, Typist, BREDA has been recommended in view of her claim being serially first and also in view of the judgment and order passed in C.W.J.C. No. 13653 of 2001 for appointment on Class-IV post. The Compassionate Committee held the view that the question of appointment of the petitioner will be considered when vacancy arises considering waiving her qualification. 12. That, there is no post vacant in either Class-III or Class-IV post in BREDA." 3. Counsel for the petitioner, however, could not satisfy this Court that as on the date of consideration of the case of the petitioner she did possess the requisite qualification for Class-IV post. Once this aspect becomes admitted that the petitioner was not eligible in view of lack of educational qualification, there would be no question of being appointed on compassionate ground, inasmuch as the Government policy adopted by the BREDA clearly lays down that the person concerned seeking appointment on com pas, sionate ground must possess the requisite qualification for the post. 4. 4. Counsel's reference to a circular dated 18.12.2008 seems to be absolutely without substance, inasmuch as this circular cannot be made applicable in the case of the petitioner, inasmuch as the husband of the petitioner had died on 18.11.2002 and an application by the petitioner for appointment on compassionate ground was filed on 12.12.2003 and the Committee of the BREDA had considered her case on 27.8.2005. The circular of the State Government dated 18.12.2008 being only prospective in nature cannot be made applicable in the case of appointment of the petitioner. 5. Counsel would finally submit that as there has been an assurance recorded in paragraph 7 of the counter affidavit that the case of the petitioner will be considered whenever vacancy arises in future after waiving her qualification, direction should be issued by this Court for waiving the qualification and appointing the petitioner. 6. There are two difficulties in this regard, namely, first of all there is no power of relaxation given in respect of waiving qualification though the Government policy talks of waiving of age limit in appropriate cases. Secondly, when the respondents have clearly stated that there was no vacant post of Class-III and Class-IV in BREDA there can be no perpetual right of consideration of the case of the petitioner. Need for compassionate appointment is immediately after the death of the employee and if there be no vacancy at that point of time, such appointment cannot be claimed as a matter of right or by way of reservation. 7. Considering all these aspects this Court would not find any merit in this application and the same is, accordingly, dismissed.