Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1819 of 2013 ====================================================== Kundan Kumar, son of late Naresh Pandit, resident of Mohalla Purani Bazar Sangatpar, P.O. + P.S. Bakhtiarpur, District Patna Versus 1. The State Of Bihar through the Principal Secretary, Rural Development .... .... Petitioner Department, Govt. of Bihar, Patna 2. The Central Compassionate Committee, through its Chairman cum the Principal Secretary, Department of General Administration, Govt. of Bihar, Patna 3. The Joint Secretary, Rural Development Deptt., Govt. of Bihar, Patna 4. The Additional Secretary, Rural Development Deptt., Govt. of Bihar, Patna .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Purushottam Kumar Jha, Advocate For the Respondent/s : Mr. Dinbandhu Singh GP-9 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 30-01-2013 Heard learned counsel for the parties. 2. In this writ application, the petitioner has prayed for the following relief:- “1(i) For issuance of an order, direction or a writ in the nature of Certiorari for quashing of so called “Speaking Order” contained in Memo No. 133574 Patna, dated 26.12.2012 (Annexure-11), passed by the Secretary, Rural Development Department, Government of Bihar, Patna, whereby representation so filed by the Petitioner for his appointment on Group “GA” Post (Class-III Post) instead of Group “GHA” Post (Class-IV Post) in the light of order dated 14.09.2012 passed in C.W.J.C. No. 13016 of 2012 (Annexure-9), is rejected in most mechanical, casual, illegal, arbitrary and discriminatory manner; (ii) For issuance of an order, direction or a writ in the Patna High Court CWJC No.1819 of 2013 (2) dt.30-01-2013 2 nature of Certiorari for quashing of the recommendation of the Central Compassionate Committee dated 06.06.2012 (Annexure-7), so far it relates to the Petitioner, whereby the Committee has decided not to amend/modify the earlier recommendation of the Committee to appoint the Petitioner on a Group “GHA” Post (Class-IV Post) instead of Group “GA” Post (Class-III Post) and directed the Administrative Department to direct the Petitioner to join on the recommended Post within a month; consequent upon that (iii) For issuance of an order, direction or a writ in the nature of Mandamus commanding and directing the Respondent No.2 i.e. the Central Compassionate Committee to reconsider the case of the Petitioner afresh in commensurate to his qualification and to recommend his name for appointment in Group “GA” Post (Class-III Post) as has been done in the case of others similarly situated persons.”
Legal Reasoning
3. Mr. Purushottam Kumar Jha, learned counsel for the petitioner in support of the aforementioned prayer, has submitted that the appointment of the petitioner on compassionate ground on a Class-IV post is bad both on fact and in law. In this regard, he has submitted that the Central Compassionate Appointment Committee has failed to consider the case of the petitioner objectively. According to him, such decision of the Central Compassionate Appointment Committee to reiterate its earlier decision for appointment of the petitioner on Class-IV post Patna High Court CWJC No.1819 of 2013 (2) dt.30-01-2013 3 is also discriminatory in nature, inasmuch as in cases of other persons similarly situated alike the petitioner, namely, Sujit Kumar and Anupam Kumar, the Central Compassionate Appointment Committee had taken a different view while recommending them for their appointment against Class-III post. 4. Learned counsel for the State, on the other hand, has submitted that the appointment on compassionate ground is a one time exercise and after a person is appointed on compassionate ground, he cannot keep on seeking appointment on a higher post. He has also explained that the cases of Sujit Kumar and Anupam Kumar are altogether different on facts. 5. In the considered opinion of this Court, there is no flaw in the impugned decision of the Central Compassionate Appointment Committee. Admittedly, the father of the petitioner died on 31.7.2009 while working as an Upper Division Clerk in the Rural Development Department of the Government of Bihar, Patna. It is the case of the petitioner himself in paragraph no.6 of the writ application that he had filed his application for appointment on compassionate ground on 15.3.2011. In the application which was filed by him, his qualification shown was Matriculation and, therefore, the Central Compassionate Appointment Committee in the meeting held on 28.9.2011 had Patna High Court CWJC No.1819 of 2013 (2) dt.30-01-2013 4 recommended him for appointment against a Group-D post with grade pay of Rs. 1800/-. From the proceedings of the Central Compassionate Appointment Committee, it would appear that not only the petitioner but Smt. Kamini Kumari also being only Matriculation were recommended for appointment against Group- D post. The Committee in fact had adopted the common yardstick for appointment of all the Matriculate against Group-D post. 6. The plea of discrimination as with regard to the recommendation of Sujit Kumar is totally misconceived, inasmuch as, from the proceedings of the Central Compassionate Appointment Committee dated 28.9.2011, it would be found that his qualification as on the date of application i.e. 5.7.2011 was not only Matriculation but also Diploma in Computer Application. In view of the fact that on 15.3.2011, when the petitioner had filed his application, he himself had claimed his qualification to be Matriculation, he cannot equate his case with the aforementioned Sujit Kumar. 7. The plea of discrimination of the petitioner against Anupam Kumar Pandey is equally misconceived in the background of the fact that the father of Anupam Kumar Pandey was an employee of the Police Department, being Sub-Inspector of Police in the Special Branch of the Home Department and the Patna High Court CWJC No.1819 of 2013 (2) dt.30-01-2013 5 vacancy reported by the parent department of the Home Department of the father of Anupam Kumar Pandey, namely, the Home Police Department was with regard to the availability of the post of Constables. The post of Constable, the lowest rank post in the Police Department on the basis of the pay structure is a Grade- C post and, therefore, such recommendation in his case was made as per the availability of the post. It has to be kept in mind that the appointment on the post of Constable even on compassionate ground can be made only on fulfillment of tough physical standard including the height and measurement of chart which is a condition precedent for appointment on the post of Constable as per the Bihar Police Manual. Thus, the petitioner, being the son of an employee whose father was a Clerk in the Rural Development Department, he could not have been appointed on the post of Constable. 8. Mr. Jha, learned Counsel for the petitioner, however, had pointed out that the petitioner also in the meantime had passed Advance Diploma in Computer Application but the
Decision
certificate which has been enclosed in the writ petition in support of this fact would itself go to show that the same was issued on 5.4.2011 whereas the application filed by the petitioner on 15.3.2011 was taken into consideration by the Central Patna High Court CWJC No.1819 of 2013 (2) dt.30-01-2013 6 Compassionate Appointment Committee. Thus the subsequent certificate of Advance Diploma in Computer Application, therefore, being not part of the application filed by the petitioner on 15.3.2011, this Court does not find any flaw in the decision taken by the Central Compassionate Appointment Committee in recommending the case of the petitioner for appointment on Group-D post. In fact, such certificate would itself go to show that the petitioner was still undergoing the training programme of the course of Advance Diploma of Computer Application till 31.3.2011 and, therefore, when he had filed his application on 15.3.2011, he cannot claim to have completed the said Advance Diploma in Computer Application course. 9. The plea of petitioner's subsequent acquiring qualification of Advance Diploma in Computer Application after submission of his application on 15.3.2011 to the application filed before Joint Secretary of the Rural Development Department on 1.6.2011 would in no way vitiate the decision taken by the General Administration Department through the Central Compassionate Appointment Committee because once the Rural Development department had already sent the application of the petitioner dated 15.3.2011 with a recommendation and a check slip for appointment on a Group-'D' post to the General Administration Patna High Court CWJC No.1819 of 2013 (2) dt.30-01-2013 7 Department which was dealing with the issue of placing the matter before the Central Compassionate Appointment Committee as clearly recorded in the impugned order passed by the Principal Secretary to Rural Development Department. 10. This Court even otherwise is not inclined to reject the recording of reasons made by the Central Compassionate Appointment Committee as with regard to the qualification of the petitioner being only Matriculate because all other entries including the date of application of the petitioner dated 15.3.2011 is as per the averments made by the petitioner himself in this writ application. Thus in the first transaction, the Central Compassionate Appointment Committee in the meeting held on 28.9.2011 did not commit any error in recommending the case of the petitioner against a Group-D post. 11. It is, however, significant to note here that after the petitioner was recommended for appointment against a Group- D post, he had filed series of representations either by himself or through his mother and the case of the petitioner was accordingly once again placed before the Central Compassionate Appointment Committee, wherein, the Committee, even after taking into consideration the qualification of Advance Diploma in Computer Application, had rejected to review its decision and had directed Patna High Court CWJC No.1819 of 2013 (2) dt.30-01-2013 8 the Rural Development Department to appoint the petitioner on Group-D post. This Court also does not find any error in such decision of the Central Compassionate Appointment Committee, inasmuch as, the Apex Court in the case of State of Rajasthan Vs. Umrao Singh reported in 1994(6)SCC 560 has held that there is no right of a person of being appointed against a particular post and there is no concept of endless compassion. Such claim according to the Apex Court gets extinguished once a decision is taken for offering even a lower post. 12. A division bench of this Court in the case of Taj Mohammad Vs, State of Bihar in its order dated 8.8.2003 in L.P.A. No. 693 of 2003 had also held as follows:- "Instead of being grateful that the State government gave a job to the petitioner on his father's death on a Class-IV post, the petitioner- appellant now desires that he should be retained on a Class-III post. This Court has already observed and there are decisions of the Supreme Court that appointments on the rule of harness or as compassionate appointments are made so that the family of a government servant can tide over immediate financial crisis. There is a policy of the government on it. There is no law on which any one can claim such an appointment as of right. The latest government's order/circular permits Patna High Court CWJC No.1819 of 2013 (2) dt.30-01-2013 9 that an appointment on compassionate ground to be made only on a Class-IV post. Merely because the petitioner-appellant may have been put on a Class-III post is no ground that he has a right to hold it. Even in the letters patent appeal the issue is accepted that there was an objection whether the petitioner-appellant can hold on a Class-III post. It appears that the petitioner- appellant has no dignity of labour. He may be grateful that he was provided a job otherwise there are millions of unemployed who are waiting outside claiming the same job. On that the court has no answer. The Court does not find any error in the order of the learned judge. Thus, the appeal is misconceived. Dismissed." 13. As a matter of fact, from the materials on record, it would also transpire that on the day the Central Compassionate Appointment Committee had considered the application of the petitioner for appointment on compassionate ground dated 15.3.2011 and had recommended for appointment of the petitioner against a Group-D post, the Rural Development Department had only reported availability of Group-D. This becomes clear from the representation of the mother of the petitioner dated 1.12.2011 wherein she had stated as follows:- ^^&&&& ;g Hkh mYys[kuh; gS fd fnukad 28-09-2011 Patna High Court CWJC No.1819 of 2013 (2) dt.30-01-2013 10 dks dsUnzh; vuqdaik lfefr dh cSBd esa dqy 19 ekeys esa fu.kZ; fy;k x;k] fltesa vU; foHkkx@ea=ky; ds vH;FkhZ dh fu;qfDr vf/kdka”k ekeys esa U;wure “kSf{kd vgZrk eSfV~d gksrs gq, Hkh lewg ^x* ds fy, vuq”kalk fd;k x;kA tcfd bl foHkkx esa lewg ^x* ds fy, ,d lhV fjDr Fkh] ijUrq rduhdh dkj.kksa ls og fjDr in …lewg ^x*‰ dsUnzh; vuqdaik lfefr dks Hksts x;s fooj.kksa esa Li’V rjhds ls n”kkZ;k ugha x;k&&&&** 14. It is well settled that an aspirant for compassionate appointment cannot insist for appointment to a particular post particularly when the post insisted upon is not available. Reference in this connection may be made be usefully made to the judgment of the Apex Court in the case of Director of Education (Secondary) & Anr. Vs. Pushpendra Kumar & Ors. reported in 1998(5)SCC 192. 15. In this regard, this Court has also noted a communication dated 24.11.2011 as contained in Annexure-8 by way of information gathered by one Satish Prasad, an advocate's clerk to Sri Ajay Mukherjee an advocate of the Patna High Court. In the said information dated 24.11.2011 which was given in response to the application filed on 30.9.2011, it has been mentioned that there was one vacancy on the post of Lower Division Clerk (LDC). This information given on 24.11.2011 will therefore be also of no avail as with regard to the decision already taken by Central Compassionate Appointment Committee in the Patna High Court CWJC No.1819 of 2013 (2) dt.30-01-2013 11 meeting held on 28.9.2011. The petitioner has not brought on record the vacancy position intimated by the Rural Development Department to the General Administration Department as with regard to the availability of a Group-C post with the application filed by the petitioner on 15.3.2011 and the check slip submitted. Even otherwise, the qualification for Lower Division Clerk, being not Matriculation as on 28.9.2011 and the requirement being that of a Graduation for the Secretariat and its attached offices, the petitioner could not have been recommended by the Central Committee for the post of Lower Division Clerk. Thus, this Court even on this ground does not find any error in the recommendation of the Central Compassionate Appointment Committee for appointment of the petitioner on the post of Group-D post. 16. Learned counsel for the petitioner has also submitted that the recent impugned order dated 26.12.2012 passed by the Secretary to the Rural Development Department denying the appointment of the petitioner on a Group-C post is also wholly illegal. In this regard, this Court would find that it is the petitioner, who has filed his representation before the Secretary to the Rural Development Department, who, in fact, has no say at all in making appointment on compassionate ground, inasmuch as, under the government policy it is the Central Compassionate Appointment Patna High Court CWJC No.1819 of 2013 (2) dt.30-01-2013 12 Committee consisting of high officials, namely Principal Secretary of the General Administration Department, Joint Secretary of the General Administration Department, Joint Secretary of the Finance Department, Director of the Land Acquisition and Rehabilitation of the Water Resources Department, Deputy Secretary to the Road Construction Department who being the members of the Committee had taken such a decision for appointing the petitioner on Group-D post. Such decision taken by the high level five members of the Central Compassionate Appointment Committee was not capable of being reversed by the Secretary to the Rural Development Department. As a matter of fact, under the policy of compassionate appointment of the State Government it is this Central Compassionate Appointment Committee which alone is legally authorized to make recommendation and the other departments have only to take the follow-up action in the light of the recommendation made by the Committee. Thus, the impugned order passed by the Secretary of the Rural Development dated 26.12.2012 holding as follows:- ^^Jherh ehuk nsoh ifr Lo0 ujs”k iafMr] mPp oxhZ; fyfid] xzkeh.k fodkl foHkkx] fcgkj] iVuk }kjk fnukad 15-03-11 dks vius iq= Jh dqUnu dqekj dks vuqdEik ds vk/kkj ij fu;qfDr gsrq foHkkx esa vkosnu lefiZr fd;k x;k A 2- mDr vkosnu ds lkFk Jh dqUnu dqekj }kjk lsokjr voLFkk esa e‘r ljdkjh ds vkfJrksa dks ljdkjh lsok esa fu;kstu laca/kh vuq”kalk ds fy, fofgr izi= esa gLrk{kfjr vkosnu ds lkFk&lkFk vU; vfHkys[k foHkkx dks miyC/k djk;s x;s A vkosnu gsrq fu/kkZfjr izi= esa vkosnd Jh Patna High Court CWJC No.1819 of 2013 (2) dt.30-01-2013 13 dqanu dqekj }kjk “kS{kf.kd ;ksX;rk ds laca/k esa vkbZ0 ,l0 lh0 esa v/;;ujr vafdr fy;k x;k Fkk rFkk “kS{kf.kd ;ksX;rk ds fufeRr ek/;fed ijh{kk mRrh.kZ vkSicaf/kd izek.k i= miyC/k djk;k x;k Fkk A 3- lkekU; iz”kklu foHkkx] fcgkj ds i=kad 4188 fnukad 25-10-2010 }kjk fu/kkZfjr fofgr tkWap i= eas vkosnd Jh dqanu dqekj ds laca/k esa vU; visf{kr lwpukvksa ds vfrfjDr “kS{kf.kd ;ksX;rk ds laaca/k esa ek/;fed ijh{kksrh.kZ n”kkZrs gq, vuqdEik ds vk/kkj ij fu;qfDr ij fopkj gsrq vkosnu i=kfn lfgr izLrko dsUnzh; vuqdEik lfefr ds fopkjkFkZ izLrqr fd;k x;k A 4- dsUnzh; vuqdEik lfefr dh fnukad 28-09-11 dks vk;ksftr cSBd esa Jh dqUnu dqekj dks lewg ^?k* …xzsM is :i;s 1800@&‰ esa fjfDr dh miyC/krk ds vuqlkj ;ksX;rk ds vuq:i in ij fu;qfDr ds fy, vuq”kalk dh xbZ A 5- Jherh ehuk dqekjh }kjk iqu% fnukad 05-12-2011 dks vius iq= Jh dqanu dqekj ds “kS{kf.kd ;ksX;rk eSfV~zd ds vfrfjDr fMIyksek bu dEI;wVj ,Iyhds”ku ¼ADCA‰ dk izek.k&i= lkSsairs gq, Jh dqanu dqekj dks lewg ^x* …xzsM is :I;s 1900@&‰ ds in ij fu;qDr djus ds fcUnq ij iqufoZpkj djus gsrq dsUnzh; vuqdEik lfefr dks izLrko Hkstus dk vuqjks/k fd;k x;k A 6- dsUnzh; vuqdEik lfefr dh fnukad 06-06-2012 dks vk;ksftr cSBd esa Jh dqanu dqekj dh fu;qfDr ds izLrko ij iqufoZpkj fd;k x;k A lfefr }kjk fopkjksijkar iwoZ esa dh xbZ vuqa”kalk esa la”kks/ku ugha djus dk fu.kZ; ysrs gq, xzkeh.k fodkl foHkkx dks funsZ”k fn;k x;k gS fd fu;qfDr i= fuxZr djus ds ,d ekg ds vUnj vkosnd dks vuq”kaflr in ij ;ksxnku nsus dk funsZ”k ns A 7- fnukad 06-06-2012 dks vk;ksftr dsUnzh; vuqdEik lfefr dh cSBd esa fy;s x;s fu.kZ; ds vkyksd esa Jh dqanu dqekj dks lewg ^?k* ds vUrxZr dk;kZy; ifjpkjh ds fjDr in ij vLFkk;h :Ik ls fu;qDr vkns”k fuxZr fd;k tk pqdk gS A 8- lkekU; iz”kklu foHkkx ds i=kad 5958 fnukad 25-04-2012 dh dfMdk ^x* esa izko/kkfur gS fd dsUnzh; vuqdEik lfefr }kjk nqckjk fopkj djus ds ckn vuq”kaflr oxZ@ in lewg ij fu;qfDr fd;k tkuk fu;qfDr izkf/kdkj ds fy, vfuok;Z gksxk A lfefr dh vuq”kalk ds izfrdwy fu;qfDr izkf/kdkj }kjk lkekU;r% fu.kZ; ugha fy;k tk ldsxk A 9- mDr of.kZr ifjizs{; esa Jh dqUnu dqekj dks lewg ^x* …xzsM is :I;s 1900@&‰ ds vUrxZr fu;qfDr fd;k tkuk fu;ekuqdwy izrhr ugha gksrk gS A vr,o fopkjksijkar Jh dqanu dqekj firk Lo0 ujs”k iafMr] iqjkuh cktkj] laxrij] iks0 $ Fkkuk & cf[r;kjiqj] ftyk&iVuk ds vH;kosnu fnukad 09-10-12 dks vLohd‘r fd;k tkrk gS A g0@& ljdkj ds lfpo Patna High Court CWJC No.1819 of 2013 (2) dt.30-01-2013 14 Kkikad 133574 iVuk] fnukad 26-12-12 izfrfyfi %& Jh dqanu dqekj firk Lo0 ujs”k iafMr] iqjkuh cktkj laxrij] iks0 $ Fkkuk & cf[r;kjiqj] ftyk & iVuk dks lwpukFkZ izsf’kr A** (underlining for emphasis) does not suffer from any error, inasmuch as, the Secretary to the Rural Development Department in view of the government policy could not have taken any other decision except to abide by the decision of the Central Compassionate Appointment Committee. 17. Additionally, this Court would find that the Secretary to the Rural Development Department in his recent impugned order dated 26.12.2012 has clearly held that when on 15.3.2011, the mother of the petitioner had submitted the application of the petitioner for appointment on compassionate ground in the prescribed proforma, the qualification of the petitioner was mentioned as student of Intermediate Science and the only certificate enclosed with the application in support of the educational qualification was the provisional certificate of Matriculation examination. The Secretary, therefore, has also correctly held that when the Rural Department had sent the application to the General Administration Department with the check slip, the actual qualification of the petitioner was mentioned as Matriculation. This part of the findings has not been questioned Patna High Court CWJC No.1819 of 2013 (2) dt.30-01-2013 15 by the petitioner in the writ application and, therefore, there would be no difficulty in holding that when the Central Compassionate Appointment Committee had in the meeting held on 28.9.2011 recommended the case of the petitioner for appointment on Group- D post it had rightly taken into consideration the Matriculation qualification of the petitioner. 18. It is significant to note here that this aspect of the matter has been clarified by the State Government in its circular contained in letter no. 5958 dated 25.4.2012, relevant portion whereof reads as follows:- ^^[k- vuqdEik lfefr;ksa }kjk vuqdEik ds vk/kkj ij fu;qfDr ds fy, vuq”kalk mEehnokj dh “kS{kf.kd ;ksX;rk dks /;ku esa j[k dj fd;k tk;sxkA eSfV~d mrh.kZ vkfJrksa dh fu;qfDr gsrq vuq”kalk xzsM is 1800@& ds fy, dh tk,xh vkSj eSfV~d ls mPprj ;ksX;rk/kkjh vkfJrkas dh fu;qfDr gsrq vuq”kalk xzsM is 1900@& ds fy, dh tk,xhA ?k- e‘r ljdkjh lsod ds vkfJrksa dks vuqdEik ds vk/kkj ij fu;qfDr gsrq dsUnzh;@ftyk vuqdEik lfefr dh vuq”kalk ds vkyksd esa fu;qfDr izkf/kdkj }kjk e`r ljdkjh lsod ds iSf=d foHkkx esa miyC/k fjfDr;ksa ds fo:) fu;qDr fd;k tk,xkA vxj vuq”kalk xzsM is 1900@& ds in lewg ds fy, gS rFkk iSf=d foHkkx esa xzsM is 1900@& dk in miyC/k ugha gks rks fu;qfDr inkf/kdkjh }kjk xzsM is 1800@& esa fu;qfDr dh tk,xhA iSf=d foHkkx esa xzsM is 1900@& ,oa xzsM is 1800@& esa fjDr miyC/k ugha gksus dh fLFkfr esa eq[; lfpo ds gLrk{kj ls fuxZr ifji= la0 2271 Patna High Court CWJC No.1819 of 2013 (2) dt.30-01-2013 16 fnukad 02-07-2007 ¼o’kZ 2010 dk foHkkxh; ifji= laxzg [kaM&1 dk i`’B 81&82½ esa fu/kkZfjr izfdz;kuqlkj vU; foHkkxksa esa miyC/k fjfDr ds fo:) fu;qfDr djus dk vuqjks/k iSf=d foHkkx }kjk fd;k tk;sxk rFkk lacaf/kr foHkkx ds fu;qfDr izkf/kdkjksa }kjk mDr fjfDr ds fo:) e‘r ljdkjh lsod ds vkfJr dh vuqdEik lfefr dh vuq”kalk ds vkyksd esa fu;qfDr dh tk,xhA** 19. In view of the aforesaid Government circular dated 25.4.2012 it becomes clear that mere possession of higher qualification above matriculation would not be the sole criteria for appointment on a Group-C post rather the availability of the vacant post would be the determining factor for appointment on compassionate ground. In view of above when the appointment of the petitioner has already been made on a Group-D post as clearly stated in the recent impugned order in paragraph no.7, this Court now would not find any reason to interfere with the same inasmuch as the very object of compassionate appointment has been served by appointing the petitioner on a Group-D post. 20. That being so, there is no merit in this application and the same must be and is hereby dismissed. (Mihir Kumar Jha, J) surendra/-