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Patna High CourtCWJC/1705/2011allowed

Baijnath Kumar v. The State Of Bihar And ORS

2016-01-25Mr. Justice Rakesh Kumar7 pages

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.1705 of 2011 ====================================================== Baijnath Kumar, son of Late Satyedra Prasad Singh, resident of MohallaMalahchak Pani Tanki , Police Station-Jehanabad, District- Jehanabad .... .... Petitioner

Versus

1. The State of Bihar

2. The Principal Secretary, Human Resources Development Department, Govt. Of Bihar, Patna

3. The Director, Primary Education, Govt of Bihar, Patna

4. The Director (Administration)-cum Joint Secretary, Human Resources Development Department, Govt of Bihar, Patna

5. The Commissioner, Magadh Division, Gaya

6. The Regional Deputy Director of Education, Magadh Division, Gaya

7. The Collector, Jehanabad, District- Jehanabad

8. The Deputy Development Commissioner, Jehanabad, District- Jehanabad

9. The District Education Officer, Jehanabad, district- Jehanabad

10. The District Superintendent of Education, Jehanabad, DistrictJehanabad .... .... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr. Bindeshwar Kumar, Adv. For the Respondent/s : Mr. AC to AAG-14 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER 25-01-2016 Heard Sri Bindeshwar Kumar, learned counsel for the petitioner and learned AC to AAG-14.

The petitioner, invoking writ jurisdiction of this Court under Article-226 of the Constitution of India, has prayed for issuance of writ of Mandamus directing the Respondents to appoint him against Class-III post on compassionate ground on the basis of recommendation made by the District Level Compassionate Selection Committee (hereinafter referred to as "the Compassionate Committee") in its meeting dated 21.02.2006.

2/7 Short fact of the case is that the petitioner's father, who was an Assistant Teacher in Primary School, Rasulpur (Shakurabad) in the district of Jehanabad, died in harness on 14.11.2005. Since due to death of bread earner of the family, financial difficulty arose, the widow of the deceased employee recommended his eldest son for being appointed on Class-III Post on compassionate ground. It is case of the petitioner that the Compassionate Committee considered the case of the petitioner along with others and the Committee found the petitioner eligible for being appointed on compassionate ground against Class-III Post and, accordingly, recommendation was made. In the said recommendation of the Compassionate Committee, along with the petitioner names of other 23 persons were recommended.

However, it has been claimed that the petitioner was not appointed whereas the person, whose name finds place at Serial no.11 of the recommendation, was appointed on compassionate ground. Though the petitioner's name is at Sl. No.10 in the recommendation list, he was denied for appointment. Thereafter, the petitioner was constrained to approach this Court by filing the present writ petition. In the writ petition, a specific plea has been taken that the person, whose name finds place at Sl. No.

3/7 petitioner. This Court by order dated 03.11.2015 had asked the Addl. Advocate General no.14 to get specific instruction and clarify the position as to (i) whether on the date of recommendation, there were only two vacancies available and (ii) whether the person, who was below the petitioner in the list of the recommendation made by the Compassionate Appointment Committee, has been appointed or not. If appointed, give the detail of such person.

Pursuant to the direction of this Court, a counter affidavit has been filed on behalf of Respondent no.9 on 11.12.2015 and in paragraph nos. 6 and 7, the Respondent no.9 has clarified the position on both queries, which were put by this Court vide order dated 03.11.2015 . The Court proposes to incorporate paragraph nos. 6 and 7 of the counter affidavit of Respondent no.9, which are as follows:

6. That regarding 1st point, it is humbly stated and submitted that according to letter no.2433 dated 23.11.2011 of the then District Education Officer, Jehanabad (Annexrure-A to the counter affidavit filed on 29.10.2015) there were only two posts vacant on which two persons mentioned in paragraph-7 of the writ petition have been appointed in 2007 and after that no post was available for appointment of the petitioner.

7. That regarding 2nd point of the order, it is

4/7 humbly stated and submitted here that two persons have been appointed from the list of recommendation of the Compassionate Appointment Committee of dated 21.02.2006 (Annexure-1 of the writ petition) in which Sri Kauslendra Kumar was just below on Sl. No.11 to the petitioner on Sl. No.10."

On perusal of the stand of Respondent no.9, it is evident that the petitioner was denied appointment on the plea that at the relevant time, there were only two posts vacant and two persons were accommodated. Regarding second query, a vague stand has been taken that the name in the list of recommendation made by the Compassionate Committee does not mean that the person, who has been appointed was junior to the petitioner. However, no plausible explanation has been given as to under what circumstances, even though the person, whose name finds place at Sl. No.11 was accommodated ignoring the case of the petitioner, whereas petitioner's name finds place at Sl. No.10. At the time of argument, learned counsel for the petitioner has placed reliance on Government Circular, contained in letter no. 3R.1178/03-Karmik 2271 dated 02.07.2007.He submits that even as per circular of the Government, if there is no any vacancy in particular department, it is duty on the part of the Government to adjust such person claiming compassionate appointment in any

5/7 other department, where the vacancy was available. Learned counsel for the petitioner has further placed reliance on a recent Judgment of the Hon'ble Apex Court, reported in 2015(3) PLJR (SC) 197(Canara Bank & Anr Vs. M. Mahesh Kumar & Ors.). He has specifically placed reliance on paragraph-7 of the said Judgment and submits that the Hon'ble Apex Court has held that in case of appointment on compassionate ground, if there is no other hurdle, the appointment on the ground of non-availability of vacancy may not be denied, whereas in such cases supernumerary post is to be created for adjusting such person. On the aforesaid ground, he has made a prayer for directing the Respondents to consider the case of the petitioner for being appointed on compassionate ground as recommended by the Compassionate Committee.

Learned State Counsel has opposed the prayer of the petitioner and he reiterates the submission made in paragraph nos. 6 and 7 of the counter affidavit, which was filed on 11.12.2015 and submits that it is not a case that any person junior to the petitioner has been accommodated.

Besides hearing learned counsel for the parties, I have also perused the materials available on record. Fact remains that one may not claim for appointment on compassionate ground as a

6/7 matter of right. Normally, the appointment on compassionate ground is exception of Articles 14 and 16 of the Constitution of India. However, once the recommendation was made by the Compassionate Committee, there was no reason to deny the appointment of the petitioner on compassionate ground on a vague ground of non-availability of the vacancy. I have perused the recommendation of the Compassionate Committee, kept at Annexure-1 to the writ petition, which categorically indicates that the person, whose name finds place at Sl. No.11, has been given appointment, whereas the case of the petitioner, whose name appears at Sl. No.10 has been ignored. Of course, a stand has been taken that the name in the recommendation list made by the Compassionate Committee does not mean that the person, whose name finds place at Sl. No.

11, was junior than the petitioner, no plausible explanation has been given as to under what circumstances, the petitioner's case, whose name finds place at Sl. No.10 has been ignored. Meaning thereby that no justification has been given by the Government for ignoring the case of the petitioner.

7/7 in other department in absence of any vacancy in particular department. In view of government circular, contained in letter dated 02.07.2007(Annexure-R3 to the rejoinder filed by the petitioner dated 11th January,2016) the Court is of the opinion that it is a fit case for directing the Respondents to reconsider the case of the petitioner in accordance with recommendation made by the Compassionate Committee, as contained in Annexure-1 to the writ petition and provide employment in accordance with law. All formalities must be completed within a period of eight weeks from the date of receipt/production of a copy of this order. The writ petition stands allowed.

(Rakesh Kumar, J) NKS/- U