IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13698 of 2005 ASHOK KUMAR PANDEY Versus THE STATE OF BIHAR & ORS --- For the Petitioner: Mr. Janardan Prasad Singh For the State: Mr. Abhinay Raj, J.C. to G.P.IX --- 8. 26.11.2008 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner No.1, now the sole petitioner in the writ petition, seeks a direction upon the respondents to appoint him in Clerical Cadre on compassionate ground. The father of the petitioner died while in Government service on 12.6.2004 and thereafter the petitioner filed an application for appointment on compassionate ground within time. The same was considered by the District Compassionate Committee in its meeting dated 4.3.2005 ( Annexure-1) and it recommended the case of the petitioner for his appointment in the Clerical Cadre in the office of the Regional Deputy Director of Education, Patna Division, Patna. Upon the R.D.D.E., Patna reporting the non-availability of any vacancy in the Clerical Cadre under him, the District Compassionate Committee again considered the matter on 8.6.2005 and recommended for the appointment of the petitioner in the Clerical Cadre against the future vacancies. Thereafter, it appears that consent was sought from the petitioner for his appointment on the post of Panchayat/ Prakhand teacher which carries fixed salary and the petitioner having given the consent, his case was recommended by the District Establishment Committee in its meeting dated 22.8.2006 for appointment on the said 2 post of Prakhand/Panchayat teacher. Accordingly, the petitioner was appointed and he is working since 13.2.2007 on the post of Prakhand/Panchayat teacher in upgraded Middle School, Betari. Subsequently, the petitioner learnt that several candidates, whose names were also recommended for appointment by the District Compassionate Committee, Kaimur had been appointed on class- III post of Clerical Cadre in the regular Cadre, two of whom having been mentioned in the writ petition, namely, Sri Pyare Lal and Sri Arun Kumar, who have been appointed as Clerk in the office of the District Education Officer, Kaimur. The stand of the State respondents is that the petitioner had himself consented to his appointment on the post of Prakhand/Panchayat teacher and, therefore, he was given appointment on the said post which he has already joined and it is not open to the petitioner to now turn around and challenge the said appointment. It is submitted that once the petitioner has accepted the appointment on the post of Panchayat/Prakhand teacher, his claim for compassionate appointment comes to an end and he is not entitled to any further up- graded post. With respect to the other two persons, it is contended that their cases were recommended in a subsequent meeting of the District Compassionate Committee and since there were vacancies on class-III post existing at that time, they were given appointment on the said post. However, in the counter affidavit filed on behalf of Respondent No.6, Regional Deputy Director of Education, it is stated that there were two vacancies existing in the District of Kaimur 3 according to letter No. 424 dated 21.9.2008 sent by the District Education Officer on class-III posts and there is no vacancy available in the post of Grade-III of the Clerical Cadre in Patna Division. Learned counsel for the petitioner submits that the post of Panchayat Shikshak is not a post under the Government and, as such, the very recommendation for the appointment of the petitioner on compassionate ground to the said post is misconceived and has led to the anomalous situation that similarly situated persons have been appointed to a post under the Panchayat which carries a fixed pay which is lower than the class-III post in the regular pay scale in the Government to which other similarly situated persons have been appointed. In the said circumstances, it is submitted by learned counsel that the petitioner is entitled to be considered for his appointment on a regular class-III post under the State Government instead of the present appointment which in compelling circumstances, the petitioner was forced to join and which is not an appointment under the State Government. In support of the said stand, the petitioner has brought on record a Circular bearing No.6905 dated 17.10.2008 ( Annexure-4) in which it is stated that the recommendations which are being made by the District Compassionate Committee on the post of Panchayat Shikshak/ Prakhand Shikshak/ Nagar Shikshak are beyond the jurisdiction of such Committee since the said posts are not the posts under the Government and accordingly, it has been directed that no such recommendation ought to be made and if any such recommendation has been made by the District Compassionate Committee, it should be reconsidered and 4 recommendation made in accordance with the Circular issued by the Personnel and Administrative Reforms Department. In view of the aforesaid circumstances and considering the stand of the Government in the aforesaid Circular dated 17.10.2008, it is evident that the District Compassionate Committee had fallen into error in recommending the name of the petitioner for appointment on compassionate ground on the post of Prakhand Shikshak which the petitioner in view of compelling circumstances had no option but to accept. The said recommendation and the consequential appointment cannot be considered as compassionate appointment granted in terms of the policy decision taken by the Government of Bihar on a post in the Government. The writ application is, accordingly, allowed and the case of the petitioner is remitted back to the District Compassionate Committee, Kaimur to reconsider the matter and make appropriate recommendations in favour of the petitioner within a period of six weeks from the date of receipt/ production of a copy of this order. It is made clear that once the said recommendation is made by the District Compassionate Committee then the petitioner’s position among the candidates to be appointed on compassionate ground shall take its place in accordance with the seniority rule followed by the State government according to the date of death of the deceased employee. VPS ( Ramesh Kumar Datta,J.)