IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.325 of 2007 THE STATE OF BIHAR & ORS Versus NESSAR AHMAD ----------- For the appellants : Mr. Shyam Kishore Sharma G.A.V with Mr. S.S.Mishra, J.C to GA v For the respondent : Mr.Shivendra Kumar Sinha O R D E R 3. 7.5.2008. Respondents-appellants, aggrieved by the order dated 29.1.2007 passed by a learned Single Judge in C.W.J.C.No.11376 of 2005 allowing the writ application, has preferred this appeal under Clause X of the Letters Patent. Short facts, giving rise to the present appeal, are that writ petitioner-respondent’s father was working as Chainman in the Land Acquisition Department, Siwan. He died in harness on 7th of July, 1999. Writ-petitioner applied for appointment on compassionate ground. By order as contained in memo dated 19.9.2003, he was appointed on compassionate ground to a Class IV post. Later on, by order dated 30.7.2005 passed by the Director, Land Acquisition and Rehabilitation, his appointed has been cancelled on the ground that he did not possess requisite qualification of having passed VIIIth examination necessary for appointment to a Class IV post. Writ petitioner-respondent challenged the same before this Court. A learned Single Judge of this 2 court, by the impugned order, quashed the aforesaid order, inter alia, observing that petitioner’s appointment is not an appointment on merit, but appointment on compassionate ground and the criteria of merit appointment, i.e. passing of VIII examination shall not apply in case of appointment on compassionate ground. G.A.V appearing on behalf of the appellants submits that Circular No.35l77 dated 25.4.1997 lays down minimum qualification of VIIIth pass for appointment on a Class IV post in the Government Service. According to him, as the writ petitioner- respondent did not possess the said qualification, his appointment on compassionate ground was illegal and therefore, rightly cancelled. In support of his submission he has placed reliance on a Division Bench judgement of this Court in the case of Laxmi Choudhary Vs. The State of Bihar & ors 2002 (1) PLJR 79. Mr. Shivendra Kumar Sinha, appearing on behalf of the writ petitioner-respondent, however, contends that the writ petitioner did not conceal any fact and once his appointment has been made, later on, it ought not to have been cancelled on the ground that he has not passed the Class VIII examination. Having appreciated the rival submission, we find substance in the submission of the Government Advocate and the authority relied on squarely covers 3 the point. Circular No.3577 dated 25.4.1997 lays down qualification of passing VIIIth examination for appointment to a Class IV post. For appointment on compassionate ground, the employer can lay down reasonable qualification and in case such reasonable qualification is laid, the person claiming appointment on compassionate ground has to satisfy that. The qualification for such appointment is passing of Class VIIIth examination. Writ petitioner- respondent, having not passed the said examination, his appointment was absolutely illegal and nothing prevented the authority to cancel the same. In view of the judgment of Division Bench of this Court in the case of Laxmi Choudhary (supra), no other view is possible. In the said case, it has been held as follows : “2.- The facts of this case lie in a narrow compass. The father of the appellant, namely, Hajari Choudhry, was a Government employee and he died in harness on 5.1.1997. The appellant applied for his compassionate appointment and his claim was rejected on the ground that he did not possess the minimum requisite qualification i.e. VIIIth pass as provided by Circular no.3577 dated 25.4.1997 laying down minimum qualification for appointment on a Class IV post in the Government service. 4.- The very object of appointment on compassionate ground is to mitigate the hardship caused to the family due to untimely death of the bread-earner. The law is well-settled that even appointment on compassionate ground, the dependent has to fulfil the requisite qualification prescribed for the post. In the other words, the only concession shown to the dependent of the deceased employee is that out of turn appointment is given without following the procedure consistent with the requirements of Articles 14 and 16 of the 4 Constitution of India. The compassionate appointment cannot be claimed as a matter of right irrespective of the fact that minimum qualification prescribed for the post is not fulfilled by the candidate concerned. The law is equally well-settled that it is for the State Government to fix a qualification for a particular post depending upon the need of the service for which the appointment is to be made. The court cannot lay down a policy prescribing qualification for a particular post. The court will interfere only when it is found that the prescribed qualification is either arbitrary or violative of Articles 14 and 16 of the Constitution. In other words, if the qualification has no nexus with the nature of service for which the appointment has to be made, the court may in the given case strike down the provision.” (underlining ours) In view of the judgment of the Division Bench in the case of Laxmi Choudhary, the view taken by the learned Single judge that qualification required for merit appointment shall not apply in the case of compassionate appointment is erroneous. Unfortunately this judgment was not brought to the notice of the learned Judge, who has passed the impugned judgment. Accordingly, the appeal is allowed, the order of the learned Single Judge is set aside and the writ application filed by the writ petitioner stands dismissed. (C.K.Prasad, ACJ) (J.N. Singh) ahk