IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.545 of 2010 1. ANIL KUMAR TIWARY S/O LATE LALAN TIWARY R/O VILLAGE BELWASA, P.S. ANDAR, DISTT.- SIWAN Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY DEPARTMENT OF WATER RESOURCES, GOVT. OF BIHAR, PATNA 2. THE SECRETARY DEPARTMENT OF WATER RESOURCES, GOVT. OF BIHAR, PATNA 3. CHIEF ENGINEER DEPARTMENT OF WATER RESOURCES, SIWAN 4. DISTRICT MAGISTRATE SIWAN 5. THE CHAIRMAN DISTRICT COMPASSIONATE APPOINTMENT COMMITTEE, SIWAN ----------- 3/ 27/01/2010 Heard learned counsel for the petitioner and learned counsel for the State. Moulding the relief during the course of submissions, the only ground urged for adjudication by the Court on behalf of the petitioner is that for appointment on compassionate grounds, the respondents cannot insist on an eligibility test as a pure question of law. Learned counsel for the petitioner relies upon a Bench decision of this Court in 2010(1) P.L.J.R. 145 ( Raj Kumar vs. The State of Bihar And Others) to submit that the petitioner cannot be subjected to any such test as there are no rules or circulars providing for the same. 2 Learned counsel for the State, on the other hand, relies upon a Division Bench order of this Court in L.P.A. No.1209/2000 disposed on 28.2.2001. Employment in government service on government posts has been held to be a national wealth. Each appointment on government posts has, therefore, to be provided keeping in mind the twin aspects of not only fairness in appointment, but also availability of quality personnel from amongst the best for their utility. Salary is paid to such persons from the government coffers generated by the tax payers. It is for this reason that the courts have insisted upon appointment in government service to be made only after an advertisement and upon selection based upon competitive merit of those who consider themselves eligible by reading it as a necessary ingredient of Article-14 of the Constitution of India. Compassionate appointment is made of the ward of one who died in government service suddenly leaving the family in penury and 3 destitute without a source of livelihood. This necessarily postulates an untimely death. Perhaps, death a year or two before retirement when cessation of the master-servant relationship was a soon coming foregone conclusion with which the family was bracing to meet as arrangement had to be made any ways thereafter are matters which also may require appropriate consideration. Therefore, while permitting an inroad into appointment by open selection under Article-14 of the Constitution of India, the courts have consistently strictly interpreted issues of compassionate appointment. No fault can be found if, while adhering to the policy, the authorities decide to elicit the best for purposes of their utility even while giving full effect to the policy. An element of compromise on quality may prima facie be evident in a compassionate appointment made contrary to the normal norms of selection on merit of the man eligible. Shall it mean that the Government is bound to bear the compassionate appointee as a burden irrespective of his utility or is the Government at liberty to 4 choose between two or morecompassionate appointees to decide as to which one is more useful to it while bearing the burden of a compassionate appointment? Those claiming compassionate appointment form a class by themselves and if all of them are to be subjected to a test, prima facie, this Court finds no illegality in the same. A piquant situation can easily be visualized where the posts may be limited and compassionate claimants may be more, especially in this State, given the extremely limited private employment opportunities and both the compulsion and desire for government employment. There will certainly be no illegality in such a test as all that is being done is considering the best from amongst a class under a policy decision so that the purpose and intent of the policy decision is properly fulfilled not only with regard to the beneficiary, but also keeping in mind the interest of the person who has to bear the burden. In C.W.J.C. No.4236/99 a Bench of this Court held that the very concept of introducing a 5 competitive examination for compassionate appointment was against the law. A Division Bench in L.P.A. No.1209/2000 disagreed with the view taken by the Single Bench holding that appointment on compassionate ground was not a mode of appointment. There was no right to the post. It was for the appointing authority to consider what is the post to be offered after considering the nature and merit of the candidate concerned. That is the ratio of the Division Bench judgement. Merely because the Division Bench further observed that in any event the candidate had also failed in the test shall not make it the ratio of the judgment to hold that it is distinguishable on its facts. A judgement has to be read as a whole to appreciate what it decides in the context of the facts and circumstances in which it is delivered. It is not permissible to cull out one or two lines of a judgement to distinguish it or to hold that it was those individual lines which were the ratio of the decision. In (2006) 5 S.C.C. 167 (STATE OF HARYANA Versus RANBIR ALIAS RANA) it has 6 been held in the relevant extract at para-12 of the judgement:- “12. …A decision, it is well settled, is an authority for what it decides and not what can logically be deduced therefrom. The distinction between a dicta and obiter is well known. Obiter dicta is more or less presumably unnecessary to the decision. It may be an expression of a viewpoint or sentiments which has no binding effect. See ADM, Jabalpur v. Shivakant Shukla (1976)2 S.C.C. 521) It is also well settled that the statements which are not part of the ratio decidendi constitute obiter dicta and are not authoritative. (See Divisional Controller, KSRTC v. Mahadeva shetty (2003) 7 S.C.C. 197: 2003 SCC (Cri) 1722.” In the case of Raj Kumar (supra) relied upon on behalf of the petitioner, a Bench of this Court has distinguished the judgement of the Division bench holding that in that case the applicant had failed in the test and that the State Government had failed to frame any uniform rules for conduct of tests for compassionate appointees till date. This Court finds itself in respectful disagreement with the same and considers itself bound by the Division Bench decision in L.P.A. No.1209/2000. 7 The objection on behalf of the State that any policy for such test shall necessarily have to take into consideration for its applicability the availability of vacancies, nature of the job etc. are matters to be more appropriately considered by the State when they frame such guidelines. The writ application stands disposed declining relief to the petitioner. KC/ ( Navin Sinha, J.)