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2012 DIGILAW 7 (PAT)

Devanand Sharma v. State of Bihar

2012-01-03

SHIVAJI PANDEY

body2012
JUDGMENT Shivaji Pandey, J.-Heard learned counsel for the petitioners is present and no one appears on behalf of the State. 2. In this case, the petitioners have filed this writ petition for quashing the order dated 29.6.1999 contained in MEMO No. 4120 issued under signature of Joint Registrar, Headquarters by which the petitioners claim for appointment on the Class-III post has been rejected. 3. The petitioners in this writ petition have claimed that though they have been appointed as Class-IV post on compassionate appointment as they possesses requisite qualification and the post are vacant and as such they should be accommodated in Class III post and also claimed that their cases are fully covered by a judgment of this Court passed in C.W.J.C.10699/1996. 4. The father of the petitioner No. 1 late Arjun Sharma was functioning as Cooperative Extension Officer died on 29.12.1985, while in service. After the death of his father petitioner No.1, namely, Deva Nand Sharma applied for compassionate appointment in the year 1986. 5. Similarly Sri Ratnesh Jha, petitioner No.2 applied for compassionate appointment on the death of his father late Sukh Chandra Jha who died on 31.12.1980. The large number of the persons have applied on compassionate ground. The Departmental Compassionate Appointment Committee considered the cases of the petitioners in their meeting dated 8.12.1988 and on 8.2.1990. The Compassionate Appointment Committee subsequently again held its meeting on 12.6.1990 and approved the earlier recommendation of the Committee and thereby recommended the names of the petitioners for appointment against Class-III post vide Annexure-3. 6. The Co-operative Department vide letter dated 28th September, 1992 appointed the petitioner on Class-IV post sought an affidavit to show that they agreeable for being appointed to the Class-IV post. If they would find agreement with the aforesaid order they were required to file affidavit of their option for Class-IV post within 30 days, otherwise it would be deemed that the petitioner and others were not interested for the service and their appointments would be deemed to have been withdrawn. It appears that the petitioners in pursuance of the said direction have filed an affidavit and accordingly they were appointed to the Class-IV post. 7. It appears that the petitioners in pursuance of the said direction have filed an affidavit and accordingly they were appointed to the Class-IV post. 7. The writ-petitioners have tiled this present writ application stating that they were in need of service, under the compulsion, they were compelled to give an affidavit but there was a recommendation for Class-III post having the qualification they ought to have been appointed to Class-III post instead of Class-IV. The counsel for the petitioners has also drawn my attention to letter No. 104 dated 13.4.1994 thereby to show that there was a vacancy for Class-III post and further to substantiate his contention, relied on the documents filed in the supplementary affidavit to show that there was a vacancy in the Class-III post. 8. The counsel for the petitioners has also submitted that in the similar facts and circumstances other one Manoj Kumar Mishra had filed a writ petition C.W.J.C. No. 10699/1996 in which this Hon'ble Court had given a positive direction to appoint the petitioner of that case to the Class-III post and on the direction, as aforesaid, he was appointed in Class-III post and as such the petitioners are entitled to same relief as has been given by this Court in CWJC No. 10699/1996. The counsel for the State disputed the claim of petition. It has been submitted that the petitioner cannot claim as a right to particular post. Compassionate appointment is an exception to general with a sole motive to tide over financial crisis. Once the petitioner accepted appointment, petitioners cannot turn round claim next higher post on the ground of having qualification and existence of vacancy. 9. Before deciding the issues of this case it will be apt to examine the law on compassionate ground which has inconsistently been followed the principle has been adumbrated from time to time by the Apex Court as well as this Court. 10. 9. Before deciding the issues of this case it will be apt to examine the law on compassionate ground which has inconsistently been followed the principle has been adumbrated from time to time by the Apex Court as well as this Court. 10. In the principle laid down by the Supreme Court it has been clearly stated that the Government and a public employment is a national wealth and only in such circumstances exception has been accepted when appointment is made on a compassionate ground and it should be kept in mind the idea being, Government and other public service should be opened to all the eligible candidates and all candidates should be given opportunity of employment, in consonance with the mandate of Articles 14 and 16 of the Constitution of India. General rule can be departed when compelling circumstances demand and on such circumstances, if the death of the sole bread-earner of the family has taken place. However, the appointment on compassionate ground required Rule and regulation or scheme, instruction framed in this regard. 11. It has further been laid down that the grant of compassionate appointment is not a right vested any person. It is beneficial scheme not identified as the normal mode of recruitment and, therefore, it is to be granted strictly in accordance with the scheme or policy formulative in this regard. 12. The Hon'ble Apex Court has further considered the case of compassionate appointment in the case of Umesh Kumar Nagpal vs. State of Haryana and Others, (1994)4 SCC 138 , the Supreme Court had held that the claim of a person concerned for appointment on compassionate ground is based on the premises that he was dependant on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Articles 14 or 16 of the Constitution. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and died while in service. Strictly this claim cannot be upheld on the touchstone of Articles 14 or 16 of the Constitution. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and died while in service. The Court has further held that the appointment on compassionate ground is not another source of recruitment but merely is exception to the aforesaid requirement taking into consideration the fact that death of the employee occurred while in service living his family without means of livelihood and under such circumstances the family is unable to get over the sudden financial crisis on such appointment on compassionate ground is to be made in accordance with the Rule and regulation or taking into consideration the financial condition of the family. 13. The Hon'ble Supreme Court in the case of Haryana Electricity Board and Another vs. Hakim Singh, (1997)8 SCC 85 , the Apex Court has expressed view that grant of compassionate appointment is to give succour to the family which has been suddenly plunged into penury due to untimely death of the sale bread-winner. Their Lordships have opined that the same cannot be treated or regarded as an alternative mode of appointment. The principle of appointment on compassionate ground is to over come the financial crisis resulting due to the death of the bread-earner which has rendered the family starving. It was only a compassionate treatment having regard to the fact that unless there is some source of livelihood family would not be able to survive. 14. This matter of compassionate appointment has come up for consideration before the Full Bench of this Court in State of Bihar vs. Rajeev Ran Vijay, 2010(3) PLJR 294 . In that case, the father of the petitioners was a teacher and had died-in-harness hence their claim was that as their father was a Government servant and as such they should be appointed to the Government post not on the post of Panchayat/Prakhand/Nagar Shikshak as they cannot be recommended to be appointed on the aforesaid post. In that case, the father of the petitioners was a teacher and had died-in-harness hence their claim was that as their father was a Government servant and as such they should be appointed to the Government post not on the post of Panchayat/Prakhand/Nagar Shikshak as they cannot be recommended to be appointed on the aforesaid post. While considering this aspects of the matter, this Court has approved the circular on the touchstone of the law laid down by the Hon'ble Supreme Court that the person claiming compassionate appointment cannot claim that they should be given a particular post to the principle kept in mind that due to death of the bread-earner, the family should not be suffered and they should be compensated so that hey can over come the financial crisis and the court has approved the circular issued by the Government for compassionate appointment of the ward of the teachers. 15. The matter of compassionate appointment again came for consideration before the Hon'ble Supreme Court in the case of State Bank of India vs. Raj Kumar reported in 2010(2) BBCJ 535(SC). In that case also in the Bank there was a scheme of giving compassionate appointment to the dependant of the employees but the scheme of compassionate appointment was substituted with the scheme to provide financial assistance in place of employment to the dependant of breadearner. The Court had considered law on compassionate appointment and the Court has held as follows:- "A supplementary affidavit was filed on behalf of the respondent-writ petitioner by way of rejoinder contending, inter alia, that the authorities have not acted in accordance with the recommendation made by the Committee inasmuch as they had offered the post of Prakhand Teacher. A reference has been made to letter no. 3/Anu/17/2005 Ka 6905 dated 17th October, 2008 issued by the Deputy Secretary, Personnel & Administrative Reforms Department, Government of Bihar that the employment as Panchayat Shikshak or Prakhand Shikshak was not a post under the Government and, therefore, no appointment could be given on compassionate ground. It has been asserted in the affidavit that this Court has already decided the issue in CWJC No. 13944/2005 (Md. It has been asserted in the affidavit that this Court has already decided the issue in CWJC No. 13944/2005 (Md. Sadare Alam vs. The State of Bihar & Ors.) with CWJC No. 4179/ 2007 (Anil Kumar Jha vs. The State of Bihar & Ors.), disposed of on 4.12.2008 that the posts of Panchayat Shikshak/Prakhand Shikshak are not posts under the State Government and no recommendation can be made on such posts. It was also pleaded therein that the respondent-writ petitioner was forced to accept the appointment as Prakhand Teacher. It was put forth that he was entitled to be appointed on a Class-III post in the Government Department." 16. In view of the law laid down by the Supreme Court in latest judgment, have examined the present case. Though the name of the petitioners was recommended for being appointed as a Class-III employee by the Committee but the department offered the petitioner Class-IV post and he was asked to give an affidavit within 30 days and he filed the affidavit without any delay within that period and accordingly the petitioner was appointed on Class-IV post. Now the petitioner has crossed the financial crisis while working in Class-IV post and the financial crisis by the span of time is no longer in existence, as such, he cannot claim Class-III post. The petitioners have accepted Class-IV post without any demur, now, they cannot turn round and make claim of Class-III post and they are estopped to lay their claim. 17. In the facts and circumstances of the case, this writ petition does not survive. Hence, the same is dismissed but without any costs.