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2016 DIGILAW 1478 (JHR)

Prashant Kumar Mallick v. State of Jharkhand

2016-10-21

S.N.PATHAK

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JUDGMENT : S.N. PATHAK, J. 1. In the instant writ application, the petitioner has inter-alia, prayed for quashing the order dated 30.03.2011, in pursuance of memo No. 432 issued under the signature of Deputy Commissioner, Dhanbad whereby and whereunder the application of the petitioner to reconsider his case for compassionate appointment in grade-III post instead of grade IV has been rejected though he possesses the required qualification. 2. The factual exposition, as has been delineated in the writ application is that father of the petitioner died on 29.01.2005 during his service period and soon after the death of his father the petitioner applied for compassionate appointment before the concerned authority. It is also stated that the petitioner had passed matriculation examination in the year 1994 in the IIIrd Division and thereafter he passed intermediate in the year 1997. As it transpires from memo No. 124 dated 22.02.2006 a meeting of District Compassionate Appointment Committee was held under the Chairmanship of Deputy Commissioner, Dhanbad and 17 applications were taken into consideration for compassionate appointment. The petitioner's case was considered and vide memo No. 1144 dated 03.07.2006 he was issued an appointment letter/joining letter under the signature of District Education Officer, Dhanbad for joining to the post of Adeshpal in Azad Hind High School, Gomoh. In pursuance to the letter of joining the petitioner joined on grade IV post in Azad Hind High School, Gomoh and is still working. It has also been stated that the petitioner later on came to know that persons having lesser qualification were appointed on class III post by the Establishment committee and as such he filed a representation before the respondent to appoint him from grade-IV to grade-III. When the representation of the petitioner was not considered, he filed a writ petition before this Hon'ble Court as W.P. (S) No. 4235/2010 with a prayer to appoint him on class-III post. 3. The Hon'ble Court vide order dated 17.09.2010 disposed of the writ application with the following observations:- “Considering the above facts and circumstances this application is disposed of with a liberty to the petitioner to file a fresh representation staking his claim as raised in the present writ application, annexing thereto all the requisite documents in support of his claim and within two months from the date of receipt of such representation, the concerned authorities of the respondents, particularly respondent no. 2 namely, Education Director, Jharkhand at Ranchi, shall consider the same and take an appropriate decision on the same by passing a reasoned and speaking order and communicate such decision effectively to the petitioner within the aforesaid stipulated period.” 4. Being aggrieved by non-consideration of his case by the respondents, the present writ application has been preferred by the petitioner for the aforesaid relief. 5. Learned Counsel appearing on behalf of the petitioner submits that the petitioner possesses the required qualification for appointment on class III post and as such in view of the direction of this Hon'ble Court in W.P. (S) No. 4235/2010 his case should have been considered for appointment on class III post and also in view of the fact that persons having lesser qualification have been appointment on class III post. 6. On the other hand, Mr. Praveen Kumar Rana, JC to SC-IV vehemently opposes the contention of the learned Counsel for the petitioner and submits that the representation of the petitioner has been rightly considered by the respondent-authority and in view of the earlier order of this Hon'ble Court passed in W.P. (S) No. 4235/2010 the Director, Secondary Education vide his order dated 08.01.2011 passed an order to consider his application and was of the view that the petitioner has himself accepted the appointment letter for class-IV post and given his joining without any compulsion. The petitioner made a representation only after joining the post on class-IV and not before joining and as such if the petitioner would have made a representation protesting his appointment on class-IV post before joining the respondent-authority District Education Officer may have considered it and passed appropriate order but once the appointment has been accepted, joining has been made second order of compassionate appointment is not permissible in the eyes of law but in view of the direction of the Hon'ble High Court the petitioner was asked to represent before the District Education Officer for consideration of his case on class-III post if vacancies are available. In view of the observation and directions of the Director, Secondary Education, District Education Officer referred the matter to the District Establishment Committee headed by the Deputy Commissioner, Dhanbad and the District Establishment Committee considering every aspect of the matter rejected the case of the petitioner. Taking into consideration the circular/letter of the Personnel Department letter no. In view of the observation and directions of the Director, Secondary Education, District Education Officer referred the matter to the District Establishment Committee headed by the Deputy Commissioner, Dhanbad and the District Establishment Committee considering every aspect of the matter rejected the case of the petitioner. Taking into consideration the circular/letter of the Personnel Department letter no. 13293 dated 05.10.1991 where it find mentioned that if a person has been appointed on a post by way of compassion he cannot get the benefit of second compassionate appointment and his grade cannot be change” and as such in view of the aforesaid letter the case of the petitioner is hereby rejected. 7. Considering rival submissions of the parties and in view of the settled principles of law and taking into consideration the circulars/guideline of the State Government the case of the petitioner is rejected on the following grounds:- (i) The petitioner has himself accepted the appointment on class IV post and has also joined. (ii) The application of the petitioner was duly considered and referred to the District Establishment Committee for consideration only on the ground that if there are vacancies on class-III post. The District Establishment Committee has duly considered the representation of the petitioner as well as the recommendation of Director, Secondary Education and after considering the circulars/guidelines of the State Government, rightly rejected the case of the petitioner. (iii) It is settled principle of law that if a person has been appointed on a post by way of compassion he cannot get the benefit of Second Compassionate Appointment and his grade cannot change. 8. As cumulative effect of the aforesaid facts, guidelines rules and judicial pronouncements the impugned order requires no interference and as a result writ petition is dismissed.