ig9A9? HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (S) No. 4701 of 2008 Petitioner Dines Kumar Garg Versus Respondents State of Chattisgarh 85 others h h Writ Petition (S) No. 4702 of 2008 Petitioner Sunil Das Manikpuri Versus Respondents State of Chhattisgarh r, others 8 Writ Petition (S) No. 4703 of 2008 Petitioner Umesh umar Netam Versus Respondents State of Chhatsgarh 8 others ti 6 K Writ Petition (S) No. 4704 of 2008 Petitioner Kesav am Baghel Vsus Respondents State of Chhattisgarh 85 others Writ Petition (S) No. 4707 of 2008 Petioner Kamleshwar Prasad Nag Versus Respondent State f Chhattisga 85 others s o rh ti Writ Petition (S) No. 4708 of 2008 Petition Narendra Kumar Kurram Versus Respondents State of Chhattisgarh 85 others Post for Judgment 8s rder on §gday of July, 2009. Nx \ Sd/- Satish K. Agnihotri Judge {g h R er er O Q ; ‘1 HIGH COURT OF CHHATTISGARH : BILASPUR W.P. (S) No. 4701 of 2008 Petitioner Dinesh Kumar Garg, S/o Late Shri Dwaraka Prasad Garg, aged about 23 years, R/o Vill. & PO. Bishrampur, Keshkal, Dist. Bastar (C.G.) Versus Respondents 1. State of Chhattisgarh, through Principal Secretary, General Administration Department, Mantralaya, D.K’S. Bhawan, Raipur (C.G.) 2. The Secretary, Ministry of Tribal Welfare Department, D.K.S. Bhawan, Raipur (C.G.) 3. Asst. Commissioner, Tribal Welfare . Department, Jagdalpur (C.G.) 4. Collector, Dist. Bastar. District Education Officer, Bastar, Dist. Jagdalpur (C.G.) 6. Chief Executive Officer, Janpath Panchayat, Baderajpur, Dist’ Bastar (C.G.) w.P. (sy No. 4702 or zoos Petitioner Sunil Das Manikpuri, S/o Late Shri Ghana Das Manikpuri, aged about 3O years, R/o Vill Parond, Post Lihagaon, Tahsil Keshkal, Baderajpur, Dist. Bastar (C.G.) Versus Versus Respondents 1. State of Chhattisgarh, through Principal Secretary, General Administration Department, Mantralaya, D.K.S. Bhawan, Raipur (C.G.) 2. The Secretary, Ministry of Tribal Welfare Department, D.K.S. Bhawan, Raipur (C.G.) Respondents 1. State of Chhattisgarh, through Principal Secretary, General Administration Department, Mantralaya, D.K.S. Bhawan, Raipur (C.G.) 2. The Secretary, Ministry of Tribal Welfare Department, D.K.S. Bhawan, Raipur (C.G.) 3. Asst. Commissioner, Tribal Welfare Department, Jagdalpur (C.G.) 4. Collector, Dist. Bastar. 5. District Education Officer, Bastar, Dist. Jagdalpur (C.G.) 6. Chief Executive Officer, Janpath Panchayat, Baderajpur, Dist. Bastar (C.G.) W.P. (S) No. 4703 of 2008 Petitioner Umesh Kumar Netam, S/o Late Shri Sukhdhar Netam, aged about 24 years, R/o Vill Amadih, _ Post Vishrarnpur, Tahsil Keshkal, Distt. Bastar (C.G.) ir Pettione Keshav Ram Baghel, S/o Late Shri Mukund Ram Baghel, aged about 35 years, R/o Vill Lihagaon, Tahsil Vishrampur, Distt. Bastar (C.G.) 1. State of Chhattisgarh, through Principal Respondents ; vx “LP. (Si No. 4704 of 2008 Versus Petitioner Secretary, General Administration Department, Mantralaya, D.K.S. Bhawan, Raipur (C.G.) ' The Secretary, Ministry of Tribal Welfare Department, D.K.S. Bhawan, Raipur (C.G.) 3. Asst. Commissioner, Tribal Welfare Department, Jagdalpur (C.G.) 4. Collector, Dist. Bastar. District Education Officer, Bastar, Dist. Jagdalpur (C.G.) 6. Chief Executive Officer, Janpath Panchayat, ‘ Baderajpur, Vishrampuri, Dist. Bastar (C.G.) W.P. (SI No. 4707 of 2008 Kamleshwar Prasad Nag, S/o Late Shri Heera Singh Nag, a—ged about 22 years, R/o Vill Vishrampur, Tahsil Keshkal, Dist. Bastar (C.G.) Versus Respondents Petitioner Narendra Kumar Kurram, S/o Late Shri Binde Singh Kurram, aged about 3O years, R/ o Vill. Post Mainpur, tahsil Charama, Dist. Kanker (C.G.) Versus Asst. Commissioner, Tribal Welfare ‘ Department, Jagdalpur (C.G.) Collector, Dist. Bastar. District Education Officer, Bastar, Dist. ' Jagdalpur (C.G.) Chief Executive Officer, Janpath Panchayat, Vishrampuri, Baderajpur, Dist. Bastar (C.G.) 1. State ‘of Chhattisgarh, through Principal Secretary, General Administration Department, Mantralaya, D.K.S. Bhawan, Raipur (C.G.) 2. The Secretary, Ministry of Tribal Welfare Department, D.K.S. Bhawan, Raipur (C.G.) 3. Asst. Commissioner, Tribal Welfare Department, Jagdalpur (C.G.) 4. Collector, Dist. Bastar. 5. District Education Offlcer, Bastar, Dist. Jagdalpur (C.G.) 6. Chief Executive Officer, Janpath Panchayat, Baderajpur, Vishrampuri, Dist. Bastar (C.G.) W.P. [SI No. 4708 of 2008 a)? Respondents 1. State of Chhattisgarh, through Principal Secretary, General Administration Department, Mantralaya, D.K.S. Bhawan, Raipur (C.G.) The Secretary, Ministry of Tribal Welfare Department, D.K.S. Bhawan, Raipur (C.G.) Asst. Commissioner, Tribal Welfare Department, Jagdalpur (C.G.) Collector, Dist. Bastar. District Education Officer, Bastar, Dist. Jagdalpur (C.G.) Chief Executive Officer, Janpath Panchayat, Baderajpur, Vishrampuri, Dist. Bastar (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA (SB: Hon’ble Shri Satish K. Agnihotri J.) Shri Parag Kotecha and Shri Anand Shukla, Advocates for the petitioners. Shri Yashwant Singh Thakur, Deputy Advocate General for the respondents No. 1 to 5. Shri-'Pankaj Shrivastava, Advocate for the respondent No.6. JUDGMENT 8r. ORDER (Passed on this _§_*‘day of July, 2009) 1. The petitioners, Who were appointed on compassionate basis on ' the post of Shiksha Karmi Grade—III, have filed these writ petitions, seeking a direction to the respondents/authorities to appoint them on regular class—III posts, according to their qualification, With effect from the date of their appointment on the post of Shiksha Karmi Grade-III and to grant them all consequential benefits. The petitioners further seek a direction to the respondents to delete the word ‘Shiksha Karmi’ from paragraph 3 of the circular dated 10.6.2003 and 4.1 1.2006 (Annexure P/ 1). 2. The indisputable facts, in nutshell, are that in Writ Petition (S) No. 4701/2008, the father of the petitioner (Dinesh Kumar Garg) was ;/f> working as P.T.I. in High School Salna, District Jagdalpur, under the Tribal Welfare Department, who died in harness on 8.6.2003. After death of his father, the petitioner applied for grant of compassionate appointment on' 5.6.2004. By order dated 31.10.2005 (Annexure P/4) the petitioner was appointed on the post of Shiksha Karmi Grade-III in the Government Higher Secondary School, Bishrampuri. In Writ Petition (S) No. 4702/2008, the father of the petitioner (Sunil Das Manikpuri) was working as Assistant Teacher in Primary School Khujrawad, District Bastar, under the Tribal Welfare Department, who died in harness on 28.4.2001. After death of his father, the petitioner applied for grant of compassionate appointment. By order dated 31.10.2005 (Annexure P/3) the petitioner Was appointed on the post of Shiksha Karmi Grade—III in the Government Higher Secondary School, Bhascot, Baderajpur, District Bastar. In Writ Petition (S) No. 4703/2008, the father of the petitioner (Umesh Kumar Netam) was working as Assistant Teacher under the Tribal Welfare Department, who died while in service. After death of his father, the petitioner applied for grant of compassionate appointment. By order dated 21.6.2006 (Annexure P/3), the petitioner was appointed on the post of Shiksha Karmi Grade-III in Primary School, Budra, Distt. Bastar. In Writ Petition (S) No. 4704/2008, the father of the petitioner (Keshav Ram Baghel) was working as Assistant Teacher under the Tribal Welfare Department, who died while in service. After death of his father, the petitioner applied for grant of compassionate appointment. By order dated 21.10.2005 (Annexure P/3), the \Q ' ‘.”z”( petitioner was appointed on the post of Shiksha Karmi Grade—III in Primary School, Salna. In Writ Petition (S) No. 4707/2008, the father of the petitioner (Kamleshwar Prasad Nag) was working as Assistant Teacher in Primary School Vishrampuri, District Bastar, under the Tribal Welfare Department, Who died in harness on 2.11.2001. After death of his father, the petitioner applied for grant of compassionate appointment. By order dated 21.10.2005 (Annexure P/3) the petitioner was appointed on the post of Shiksha Karmi Grade-III in Primary School, Khallari. In Writ Petition (S) No. 4708/2008, the father of the petitioner (Narendra Kumar Kurram) was working as Assistant Teacher in High School, Chichadi, District Jagdalpur, under the Tribal Welfare Department, who died in harness on 20.6.1984. After death of his father, the petitioner‘ applied for grant of compassionate appointment. By order dated 22.8.1998 (Annexure P/3), the petitioner was appointed on the post of Shiksha Karmi Grade—III in Primary School, Nokabeda (Tatipara) and on 19.6.2006 the petitioner was promoted on the post of Shiksha Karmi Grade-II in Middle School Umarpara. The aforementioned six writ petitions involve common question of VI. facts and law therefore they are being considered and disposed of by this common judgment and order. 'Shri Parag Kotecha and Shri Anand Shukla, learned counsel ppearing for the petitioners would submit that the petitioners are 3 i ‘ having requisite qualifications to be appointed on a regular J class—III post i.e. Assistant Teacher or Assistant Grade—III. The petitioners made several representations to the concerned y m ....4 a é (1% authorities, which have gone unheard. The petitioners have been discriminated by the respondents as other similarly placed persons have been appointed on regular class III posts by order dated 20.10.2005 (Annexure P/7 in W.P.S No. 4701/2008). Learned counsel would further submit that the circular dated 10.6.2003 and 4.11.2006 provide for grant of compassionate appointment on lowest regular vacant post by direct recruitment in class-III and class—IV category i.e. Assistant Grade~III, Shiksha Karmi, Ward Boy, Forest Guard etc. and Peon or other equivalent post of Class IV. The inclusionrof post of ‘Shiksha Karmi’ in the above circulars are not sustainable, as the recruitment and conditions of services of a Shiksha Karmi is always governed by the Chhattisgarh Panchayat Shiksha Karmis (Recruitment and Conditions of Service) Rules, 1997 or the Chhattisgarh Municipality Siksha Karmi (Recruitment and Condition of Service) Rules 1998, as the case may be. A Shiksha Karmi is not a government servant. The appointment of Shiksha Karmi is made by local bodies. Thus, the appointment of the petitioners should have been on regular class—III posts. Per contra, Shri Yashwant Singh Thakur, learned Deputy Advocate General would submit that the order, appointing the petitioners, on compassionate ground, on the post of Shiksha Karmi, was in accordance with Rule 6 of the Chhattisgarh Panchayat Shiksha Karmi (Recruitment 86 Condition of _Service) Rules, 1997, which provides for compassionate appointment only on the post of Shiksha Karmi Grade-III. By circular dated 9.12.1998 (Annexure R/2 in W.P. No. 3412/2004 Rajesh Kumar Tiwari Vs. State of Chhattisgarh), issued by the Education Department, it was made ' 7 /?® clear to all the Collectors that the compassionate appointment cannot be made on any other post, except on the post of Shiksha Karmi Grade-III. He further submits that the petitioners were appointed in the year 2005 and they have filed these writ petitions in the year 2008 with delay of almost three years. Such a stale prayer may not be considered. Having heard learned counsel appearing. for the parties and having perused the pleadings and documents appended thereto, it is clear that the appointment of the petitioners was not through any proper selection process or in accordance with the constitutional scheme of employment. It has been held that the appointment on cOmpassionate basis is not a proper appointment but it is a back door entry; The law on compassionate appointment is well settled. It is Well settled principle of .law that any circular or direction providing for appointment of a person Without selection process is Violative of Articles 14 and 16 of the Constitution of India. The contention of learned counsel appearing for the petitioners that the inclusion of the post of ‘Shiksha Karmi’ in the above circulars is not sustainable, is without any basis, as the circular derives its power from Rule 6 of the Chhattisgarh Panchayat Shiksha Karmis- (Recruitment and Conditions of Service) Rules, 1997, Where it has been made clear that the persons eligible for employment on compassionate ground may be appointed under any rule or instructions, issued by the Government. Thus, the submission of learned counsel that the State policy is without authority of law, has no merit. The principle of law on the compassionate appointment is well settled. The compassionate appointment 1s granted only in the /z? event, if an empioyee dies in harness ’and on account of sudden death the dependent famlly has become penunous on sudden demlse of the bread earner of the famlly The compassmnate appomtment 1tself 1s a backdoor entry. It 1's a departure from the general rule of employment, as provided under the provisions of Article 14 and 16 of the Constitution of India. The appointment on compassionate basis is not in accordance with the constitutional scheme of employment but in order to sub-serve the above stated purpose. (See State ofJ & K and others vs. Sajad Ahmed Mir1) It is also well settled that the appointment on compassionate ground is not a method of recruitment, but, is a facility to provide for immediate rehabilitation of the family in distress for relieving the dependent family members of the deceased employee from destitution. In other words, the object of compassionate ppointment is to enable penurious family to tide over the sudden financial crisis and is not to provide employment. In the present case, the petitioners are still working on the post of Shiksha Karmi Grade-III and Grade-II. 16. So far as grant of compassionate appointment to other similarly situated persons on regular class—III posts is concerned, it is for the State and its authorities to grant compassionate appointment to a seeker, looking to the facts and circumstances of the individual and availability of vacant posts. 17. This Court in Writ Petition (S) No. 44 of 2009 ( Ajit Kumar Nair Vs. The State of Chhattisgarh & others) wherein the petitioner was granted compassionate appointment on the post of Shiksha Karmi Grade-III onaccount of death of his mother, in harness, had a gW prayed that he should be granted regular appointment on the post of Assistant Grade-III, this Court held as under : - “7) Applying the well settled principles of law to the facts of the case on hand wherein after the death of the mother of the petitioner, the petitioner was granted compassionate appointment on the post of Shiksha Karmi Grade-III and he has no right to claim that on a particular post he should be given compassionate appointment. Thus, the petitioner does not deserve any relief. The petition is being devoid of merit and sans any substance.” As Aobserved, the compassionate appointment is a backdoor entry, not through proper selection and not in accordance with the constitutional scheme of appointment. Similarly situated eligible candidates have not been afforded opportunity to participate in the process of selection for appointment on the post of Shiksha Karmi. It has been held by a catena of decisions that appointment, de hors the constitutional scheme of appointment, is not legal and no right accrues in favour of the employee to claim reinstatement, “a a continuation or regularization in service. Thus, the petitioner r having been appointed as Shiksha Karmi on compassionate basis, has no right to regular appointment on Class-III posts. The Supreme Court in Ashok Kumar Sonkar Vs. Union of India and othersl , observed as under: “34. It is not a case where appointment was irregular. If an appointment is irregular, the same can be regularized. The court may not take serious note- of an irregularity within the meaning of the provisions of the Act. ’But if an appointment is illegal, it is non est in the eye of law, which renders the appointment to be a nullity.” ‘ (2007) 4 scc 54 10 The Supreme Court in Official Liquidator Vs. Dayanand and othersz has made it clear that the provisions of Article 14 of the Constitution would not be applicable to the cases of regularization of ad hoc, temporary, daily—wagers, casual employees and employees appointed on contract basis, as their appointment itself is illegal. 21. For the reasons mentioned herein above, the petitions are dismissed. No order asto costs. ,‘Satish K. Agnihotri Judge Thakur i Sd/-