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2013 DIGILAW 505 (PAT)

Neeraj Kumar v. State of Bihar

2013-04-15

MIHIR KUMAR JHA

body2013
ORDER Heard counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:– “Commanding the respondent to appoint the petitioner on the post of Grade III as per the recommendation of District Compassionate Appointment Committee vide Memo No. 1810 dated 18.12.1999 and further to declare the appointment of this petitioner on the post of Grade IV, arbitrary and illegal giving all consequential benefits found payable to this petitioner.” 3. Counsel for the petitioner submits that when the District Compassionate Appointment Committee had recommended for appointment of the petitioner on a Class III post vide Annexure 1 dated 18.12.1999 the respondents ought to have not appointed the petitioner on a Class IV post vide order dated 28.1.2002, as contained in Annexure 2 to the writ application. He has also submitted that the petitioner has thereafter kept on representing his case for his appointment on Class III post but such request has not made any headway. In this regard reliance has been placed by him on an order of this Court dated 24.11.2011 in C.W.J.C.No. 15261/2008 (Alok Kumar Vs. the State of Bihar & ors.) with an emphasis that the case of the petitioner is squarely covered by the aforementioned order. He has also drawn attention of this Court that from Annexure 6, a communication dated 10.2.2012, it would transpire that there are still vacancies on Class III post and the petitioner can be accommodated on any one of them. 4. In this case a counter affidavit has been filed by the respondents wherein it has been stated that when the petitioner was offered his appointment on compassionate ground on a Class IV post on 28.1.2002 he had accepted the same without any demur or protest. It has also been explained that the Government resolution dated 5.10.1991 clearly lays down that after appointment has already been made on compassionate ground the cadre cannot be changed nor one can seek appointment against higher post. 5. In the considered opinion of this Court this writ application must fail on the ground of delay alone. Whatever had happened in the case of the petitioner was in the year 1999 when the Compassionate Appointment Committee had recommended the petitioner for appointment on a Class III post. 5. In the considered opinion of this Court this writ application must fail on the ground of delay alone. Whatever had happened in the case of the petitioner was in the year 1999 when the Compassionate Appointment Committee had recommended the petitioner for appointment on a Class III post. The petitioner’s appointment thereafter was made in the year 2002, way back in the month of January, 2002 on a Class IV post and it is not in doubt that the petitioner had accepted such assignment and had started working against Class IV post. Thus, after more than eleven years of his working against a Class IV post, which he had accepted without demur or protest, this Court is now not inclined to entertain the belated plea of the petitioner that he ought to have been appointed on a Class III post in 2002. 6. That apart the Apex Court in the case of State of Rajasthan Vs. Umrao Singh reported in (1994) 6 SCC 560 has laid down the law once a person is offered an appointment on lower post and accepts the same he cannot thereafter claim to be appointed on higher post inasmuch as there can be no "endless compassion" because on being appointed on the lower post the claim will be extinguished for once and ever. 7. The aspect that the recommendation made by the District Compassionate Appointment Committee is not binding on the appointing authority has already been settled by the Full Bench of this Court in the case of the State of Bihar & Ors vs Rajeev Ran Vijay Kumar, reported in 2010(3) PLJR 294 . 8. The plea of availability of vacant post as sought to be projected by the petitioner also does not seem to be factually correct because the report dated 10.2.2012 would itself bear it out that the vacancies as on date are on the post of Head Assistant, Head Clerk, Accounts Clerk and Steno-typist and there is no vacancy on the basic post of Correspondence Clerk and L.D.C. It has to be kept in mind that out of these four Class III posts in which again two of them, namely, Head Assistant and Head Clerk are filled up by promotion and the rest two posts, namely, Accounts Clerk and Steno-typist need special qualification. The petitioner does not claim that he had/has qualification of either of the post and therefore, the vacancies available on Class III post as on date will also be of no help to the petitioner. In fact it was on account of absence on vacant post that the petitioner was offered a Class IV post in 2002 and he had also accepted the same. 9. Thus, reliance placed on an order of this Court in the case of Alok Kumar (supra) must be held to be wholly misplaced, inasmuch as in that case the issue of pick and choose was made the basis for issuing a direction. Here in this case there is no averment that any pick and choose was made in 2002 and in fact the petitioner being the solitary candidate in his department having been though recommended on Class III post was appointed against the vacant Class IV post due to want of a suitable vacancy. 10. In that view of the matter, this Court does not find any error in either appointing the petitioner against Class IV post. His belated challenge after eleven years of cause of action therefore must be held to be wholly misconceived both on fact and in law. 11. This application is, accordingly, dismissed.