Ram Awadhesh Singh vs The State of Bihar and Others

Mihir Kumar Jha, J.—Heard learned counsel for the parties.

The prayer of the petitioner in this writ application reads as follows:-

That, this is an application for issuance of an appropriate writ order or direction including a writ in the nature in the nature of Mandamus for direction to the concerned respondents to appoint the petitioner as Government servant in regular pay scale at the post of clerk on the basis of compensate ground in the light of the recommendation of the Headmaster of Jawaharlal Nehru High School Sevapuri Fakarabad to the compensate committee Kamur and thereafter cancel the employment of the petitioner from post of Prakhand Teacher,.

Learned counsel for the petitioner has submitted that though the petitioner after the death of his father on 06.02.2010 who was working as Peon in Jawaharlal Nehru High School Sevapuri Fakarabad in the district of Kaimur was appointed on compassionate ground on the post of Prakhand Teacher by order dated 20.08.2011 and is still continuing against the said post but he would be entitled for fresh consideration of his appointment against the post of clerk in the prescribed pay scale because of the recommendation of the Headmaster of the high School where his father was employed, the petitioner should be appointed against a class-III post. Learned counsel for the petitioner in this regard has also relied on a judgment of this Court passed in L.P.A. No. 600 of 2011 (the State of Bihar vs. Saket Suman & Anr.) disposed of on 09.08.2012.

Learned counsel for the State on the other hand has submitted that once the petitioner was already appointed on the post of Prakhand Teacher and that too after obtaining his prior consent, he cannot be permitted to raise a claim for fresh consideration against a class-III post. In this regard, he has also submitted that there is statutory Rule which prescribes that the dependent of a teaching/non teaching employee in a Government High School could be appointed only against the post of a Prakhand Teacher, if he had the requisite qualification for the same.

In the considered opinion of this Court, the petitioner has no right to be appointed on compassionate ground against a particular post. The petitioner was offered the post of Prakhand Teacher and he had accepted the same which lead to his appointment on 20.08.2011 i.e., within one and a half years of the death of his father on 06.02.2010 working against the post of a Peon in a nationalized high School, the claim of the petitioner for appointment on compassionate ground had come to an end. Law in this regard is well settled by the Apex Court in the case of State of Rajasthan Vs. Umrao Singh, , wherein, it has been laid down that after a person is afforded appointment on compassionate ground and he accepts it, he is precluded from again asking for reconsideration for appointment on compassionate ground against a higher post, inasmuch as, there is no concept of ''endless compassion''.

Thus, in view of the judgment of the Apex court in the case of Umrao Singh (supra), this Court will have no difficulty in rejecting the case of the petitioner for compassionate appointment against the post of a clerk.

As a matter of fact, this Court also finds merit in the submission of learned counsel for the State that it is the requirement of the statutory Rules that the dependent of a teaching/non teaching employee of a high School shall be considered for appointment on compassionate ground only against the post of a Prakhand Teacher and the reliance placed by him on Rule-10 of Bihar Panchayat Prarambhik Shikshak (Niyojan avam Sewa Sart) Niyamawali-2006, is apt and appropriate which reads as follows:-

Admittedly, the father of the petitioner had died in the year 2010 when these rules have already come into force and thus these statutory Rules will govern the fate as with regard to consideration of the case of the petitioner for appointment on compassionate ground.

The reliance placed by learned counsel for the petitioner on a Division Bench judgment of this Court dated 09.08.2012 passed in L.P.A. No. 600 of 2011, is wholly misplaced, inasmuch as, from the narration of the facts of the case, it would be clear that the petitioners in those cases were dependents of Government teachers who had died in the year 2004-2005. Thus at the point of time in the year 2004-2005 when these statutory Rules were not in force something could be said for consideration of their cases against class-III post in terms of the Government policy dated 05.10.1991 but then after enforcement of the 2006 Rules as on 01.07.2006, the dependent of a teaching/non-teaching employee cannot claim his appointment on the basis of the policy dated 05.10.1991, but for him the statutory Rules will have to be followed. By now it is well settled that compassionate appointment is a matter of policy and the Courts will not direct for making appointment in violation of the policy. Here, is the policy of Rule-10 of 2006 Rules and that should be the end of the matter.

As a matter of fact, the clear and distinguishing feature between the present case and the case decided by the Division Bench in the case of Saket Suman (supra) is also apparent on the face of record, inasmuch as, in their cases as per the policy decision dated 05.10.1991 after the death of their father the matter was placed before the District Compassionate Appointment Committee as was the requirement of that policy and recommendation for their appointment was made by the Committee for appointment on class-III post. In the present case after the death of the father of the petitioner, the matter relating to compassionate appointment of the petitioner was neither sent nor required to be sent before the District Compassionate Appointment Committee. A clear instruction was issued by the State Government vide letter No. 3354 dated 09.09.2008 that the cases of dependent of the teaching/non-teaching employees were no longer required to be sent to the District Compassionate Appointment Committee and a decision was to be taken by the employing unit for appointment on the post of Prakhand Teacher.

Thus, there is complete dissimilarity in the facts of the present case and the case of Saket Suman (supra) which essentially has lead to this similar result.

Before parting with it has to be always kept in mind that what has been rightly said by the Apex court and this Court in relation to compassionate appointment that law of compassionate appointment is in violation of Article- 14 and 16 of the Constitution of India but its validity has been upheld only on account that it is for the purpose of providing solace to the family of the deceased employee. The Courts have held time and again that no applicant has a right to a particular post and appointment offered to an applicant can be either accepted or denied. As a matter of fact, issuing mandamus in the matter of compassionate appointment which is a matter of discretion and circumscribed by the policy would be rare and in fact few and far between.

That being so, this application is wholly misconceived and is, accordingly, dismissed.