Mithilesh Kumar Ray v. The State Of Bihar

Patna High Court CWJC No.4427 of 2010 (5) dt.12-03-2012 2 Mr. Suman Kumar Verma For the Respondent/s : Mr. (Sc15) ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 5 12-03-2012 Heard counsel for the parties. In these two writ applications the petitioners having been already offered appointment on the post of Panchayat Teacher on compassionate ground as also after acceptance and continued working on the posts of Prakhand Teacher/ Panchayat Teacher have still raised the issue relating to their earlier compassionate appointment on a plea that since the District Compassionate Appointment Committee had made a recommendation for their appointment against Class III post, they ought to have been appointed on a Class III post and not on the post of Panchayat/ Prakhand Teacher. Learned counsel for the petitioners in this regard has also stated that similarly situated persons, namely, Arshad Karim, Ajit Kumar and Rajesh Kumar though recommended in the same transaction with the petitioners for Class III post were not appointed on the post of Prakhand/ Panchayat Teacher and they were ultimately taken on Class III post in Agriculture Department as Field Assistant (Prakshetra Sahayak). Learned counsel for the State, on the other hand, Patna High Court CWJC No.4427 of 2010 (5) dt.12-03-2012 3 has submitted recommendation of the District Compassionate Appointment Committee is not binding on the appointing authority and in this regard he has referred to the judgment of the Full Bench of this Court in the case of State of Bihar Vs. Rajeev Ranvijay Kumar, reported in 2010(3) PLJR 294. He has further submitted that as a matter of fact the case of the petitioner Mithilesh Kumar Ray is distinguishable on facts, inasmuch as after the District Compassionate Appointment Committee on the basis of his earlier qualification of being a matriculate had recommended for his appointment as per the proceeding of the meeting held on 24.4.2007, the petitioner Mithilesh Kumar Ray had continued to pursue ongoing Intermediate course and thereafter he had himself filed his own application to the District Superintendent of Education with a request that in view of his qualification of being intermediate his appointment should be made on the post of Panchayat Teacher. He would, accordingly, explain that once the petitioner himself had voluntarily opted for appointment on the post of Prakhand Teacher he cannot later on wriggle out by raising the plea of legitimate expectation and/ or choosing to assail the appointment of others on the ground of discrimination. In this regard in the supplementary counter affidavit filed by the official respondents it has also been Patna High Court CWJC No.4427 of 2010 (5) dt.12-03-2012 4 explained that as per the Government statutory rules, namely, Bihar Panchayat Prarambhik Shikshak (Employment and Service Condition) Rule, 2006 there is a specific provision under Rule 10 that a dependent of teacher/ non-teaching staff can be appointed on compassionate ground as a Panchayat/ Prakhand Shikshak. He has further referred to the aspect that after the petitioner had given in writing opting his own appointment on the post of Prakhand Shikshak in the Middle School, Bhalui, Rajapakar, Vide Annexure 4, the petitioner was offered such appointment on 20.5.2010, whereas the three others about whom the plea of discrimination has been raised were appointed on 19.7.2011 it has been explained that they had never opted for being appointed on a post of Panchayat/ Prakhand Teacher. In the considered opinion of this Court petitioners had a very limited right at the time of consideration fo their case for appointment on compassionate ground as per the policy framed by the State Government. Such policy was/is capable of being changed from time to time. As a matter of fact when the cases of a large number of dependents of school teachers dying in harness became the subject matter of issue, the State Government in view of changed scenario of handing over almost all the post of teachers in Primary and Middle Schools had taken a Patna High Court CWJC No.4427 of 2010 (5) dt.12-03-2012 5 conscious decision to appoint the dependents of the teachers on the post of Prakhand/ Panchayat Teacher subject to their fulfilling the minimum qualification. In fact a statutory Rule was brought to this effect and under Rule 10 of 2006 Rules a specific provision was made for such appointment on compassionate ground. In that view of the matter, this Court does not find any error in appointment of the petitioners on the post of Panchayat/ Prakhand Teacher. As with regard to plea of there being no intelligible differentia between the case of the petitioners and those three others, namely, Arshad Karim, Ajit Kumar and Rajesh Kumar this Court has to note that the three named persons never claimed that they had improved their qualification during the pendency of their consideration of case nor they alike the petitioners had voluntarily given in writing for accepting appointment on the post of Panchayat/ Prakhand Teacher. The plea of discrimination whenever raised has to be seen in its entirety. The two persons competing for appointment on compassionate ground under different circumstances cannot claim equality if one voluntarily goes to accept a post by giving in writing that he is interested only for that particular post. In that view of the matter, this Court does not find any merit in the submission since the petitioners were Patna High Court CWJC No.4427 of 2010 (5) dt.12-03-2012 6 appointed in the year 2010 and the three other persons were appointed after one year in 2011 they had stood discriminated in the matter of their appointment. The appointment of the petitioners infact having been made earlier if they had already accepted the same, they cannot later on ask this Court to change their post from the post of Panchayat Teacher to any other Class-III post. The petitioners must keep in their mind that they had not been selected on merit and/or had secured better position in comparison to three other persons seeking compassionate appointment, This Court therefore will have no hesitation in holding that the case of the petitioners having been considered once they had already given appointment on their choice post of Prakhand/ Panchayat Teacher, no further compassion was to be shown to them. There can be no endless compassion in such appointment as has been held by the Apex Court in the case of State of Rajasthan Vs. Umrao Singh reported in (1994) 6 SCC 560 where it has been explained that the claim for compassionate appointment would stand extinguished once a post applied for is offered and accepted. That being so, this Court does not find any merit in these two writ petitions and they are, accordingly dismissed. (Mihir Kumar Jha, J) surendra/-