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Judgment
Seeking exception to an order dated 25.02.2016
passed by the Writ Court in C.W.J.C. No. 5231 of 2014, this appeal
has been filed under Clause-X of the Letter Patent.
Petitioner''s father Late Sita Ram Mahto was
working in the establishment of the respondents. He died in harness
and applicant submitted an application seeking appointment in a
Class-III post as well. His application was processed but he was
granted appointment in a Class-IV post on 02.07.2010. He represented
the matter and when the same was not considered, in the year 2014, he
filed the writ petition in question inter alia contending that he was
entitled to appointment on a Class-III post and in appointing him in a
Class-IV post, an illegality has been committed.
The learned Writ Court rejected the writ petition
only on the ground that having accepted the appointment on
02.07.2010, the appellant, under law is prohibited from challenging
the appointment and seeking appointment in a Class-III post after a
period of more than four years. However, on re-examining the matter,
we, on the last date of hearing on 21.03.2017 found that in view of the
peculiar facts and circumstances of the case, the respondents could
indicate as to why the appellant was not appointed in Class-III post
and why similar treatment as granted to various employees indicated
by the appellant, particularly in the case of one Ravindra Kumar is not
being granted to the petitioner. In response to the order passed by us
on 21.03.2017, respondent No. 3 has filed counter affidavit on
13.04.2017 and on a perusal of the averments made in the said counter
affidavit, from para 7 onwards, we find that appellant submitted an
application seeking appointment as a Revenue Karamchari which is a
Class-III post. The matter was placed before the District
Compassionate Appointment Committee and the District
Compassionate Appointment Committee did recommend his case for
appointing him as Revenue Karamchari and in spite of the aforesaid
recommendations, the appellant, for reasons which are not available
on record was appointed in a Class-IV post. However, when a query
was made as to why in spite of recommendations made for
appointment of the appellant as Revenue Karamchari which post the
appellant is even accepting today the appellant has not been appointed
in a Class-III post, learned counsel appearing for the State invited our
attention on a circular issued by the State Government to argue that
once a candidate accepts appointment of a particular post granted on
compassionate basis, he is precluded and prevented from seeking
appointment on a higher post.
Having heard learned counsel for the parties and on
a perusal of the records, we are of the considered view that merely
because the circular so contemplates, the appellant cannot be denied
the right of seeking appointment on compassionate ground in a Class-
III post for the following reasons. (i) available on record is the
recommendation of the District Compassionate Appointment
Committee filed as Annexure-B to the counter affidavit of respondent
No. 3 and the case of the appellant has been considered at Serial No.
22 and on a perusal of the aforesaid recommendation goes to show
that recommendation was made that appellant can be appointed in a
Class-III post. Thereafter, when the appellant was granted
appointment on 10.07.2010, after joining on the post, immediately
within fifteen days the appellant represented to the Department on 28th
July, 2010 vide Annexure-4 seeking appointment on Class-III post.
The matter was referred to the higher authorities and vide Annexure-
5, on 27th September, 2010, a recommendation was made by way of
clarification that appellant can be appointed in a Class-III post in a
particular case. Thereafter the appellant represented into the matter
and even though the matter was referred to the higher authorities,
when no action was taken, the writ petition was filed.
That being so, this is not a case where the appellant
accepted the appointment on the Class-IV post without any objection.
Apart for the fact that appellant, at the very first was available and
raised objection as is indicated hereinabove, it is a case where he was
found to be fit for appointment on a Class-III post. His application for
appointment on a Class-III post as a Revenue Karamchari was
considered and in spite of recommendations made for his appointment
subject to approval by the Department on such post, respondents
appointed him in Class-IV post whereas in the case of certain other
employees like Sri. Ravindra Kumar they were granted appointment
in class-III post.
We are of the considered view that in dismissing
the writ petitioner only on the ground of delay and the appellant
having accepted an appointment on a Class-IV post, learned Writ
Court has committed an error. It was a case where based on the
recommendations made, direction could have been issued for
appointing the appellant on Class-III post.
Keeping in view the aforesaid, we allow this
appeal, direct for appointment of the appellant on a Class-III post and
the appellant, on such appointment, shall be granted benefit of Class-
III post prospectively from the date of his appointment.
With the aforesaid, the appeal stands allowed and
disposed of.