IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15917 of 2007 Brajesh Kumar, son of late Vesh Narayan Yadav, resident of Village Akabarpur, P.O. Shamsher Nagar, P.S. Daudnagar, District Aurangabad (Bihar), At present posted as Peon in Rajkiya krit Uchya Vidyalaya, Arai, Aurangabad (Bihar). --------- Petitioner Versus 1. The State of Bihar through the Personnel & Administrative Reforms Department, Govt. of Bihar, Patna. 2. The Secretary, Human Resource Department, Govt. of Bihar, Patna. 3. The Director, Primary Education Department, Govt. of Bihar, Patna. 4. The District Magistrate-cum-Chairman, District Label Compassionate Appointment Committee, Aurangabad (Bihar). 5. The District Education Officer, Aurangabad (Bihar). 6. The District Establishment Deputy Collector, Aurangabad (Bihar). 7. The District Superintendent of Education, Aurangabad, Bihar. 8. The Block Education Extension Officer, Barun, Aurangabad (Bihar). -------- Respondents ----------- 2 11.04.2011 Heard learned counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application is that he should be appointed on compassionate ground against Class-III post by modifying his earlier order of the appointment against a Class-IV post. To that extent, he would rely on the precedent cases of Dhananjay Kumar, Santosh Kumar, Amrendra Kumar Tripathi and Bhopendra Chaudhary, who according to him were also initially recommended and appointed against Class-IV post but, were subsequently 2 appointed against Class-III post in view of the decision taken by the District Compassionate appointment Committee, Aurangabad dated 7.6.2005 (Annexure-8). He would also place reliance on an order of this Court dated 23.7.2010 in CWJC No. 3104 of 2007, wherein, a Bench of this Court, having noticed the aforementioned resolution of the District Compassionate Appointment Committee dated 7.6.2005 in respect of the four aforementioned persons, had also directed the case of the petitioner Shatrughan Kumar Bharti for its being considered afresh for his appointment on a Class-III post. Counsel for the State, on the other hand, would submit that once the petitioner was appointed against the Class-IV post, the District Compassionate Appointment Committee has got no power to review its decision. As with regard to the aforementioned four persons, he has sought to rely on paragraph no.12 of the counter affidavit filed by the respondent nos. 4, 5 & 6 respectively, wherein, it has been stated that as Dhananjay Kumar was B.Sc. Honours in Chemistry, Santosh 3 Kumar was B.A. (Hons.), Amrendra Kumar Tripathi was B.A. as also L.L.B. and, therefore, they had higher qualification whereas the petitioner has a lower qualification. He has also submitted that this aspect of the matter has been settled by this Court in a number of cases wherein it has been held that whenever an appointment to a lower post would be made on compassionate ground and the same is accepted, there would be no question of reconsidering the matter for appointment against the higher post on compassionate ground. To that extent, he placed reliance on an unreported order of this Court dated 4.3.2003 in CWJC No. 1848 of 2003 (Basanti Kumari Vs. State of Bihar & Ors.) as on a reported judgment of this Court in the case of Rupendr Kumar Singh Vs. The State of Bihar & Ors. reported in 1999(1)PLJR 842. In the considered opinion of this Court the submission of learned counsel for the State has to be accepted inasmuch as two things are absolutely clear and in fact admitted. Firstly the case of the petitioner 4 was earlier considered by District Compassionate Appointment Committee which had recommended the appointment of the petitioner on a Class-IV post. On such recommendation, the petitioner was already appointed on 12.4.2007 on the vacant post peon. The petitioner, having accepted such appointment, had subsequently filed an application for his appointment against the post of Teacher and in this context, had placed reliance on an earlier case decided by the District Compassionate Appointment Committee on 7.6.2005. The moment the petitioner had accepted his appointment against Class-IV post, that was the end of the matter and there should not have been any reconsideration on the issue as to whether the petitioner was more qualified so as to become Teacher or holding a Class-III post. To that extent, the principles laid down in the case of Umesh Kumar Nagpal Vs. State of Haryana & Ors. reported in 1994(4)SCC 138 has clearly laid down that the compassionate appointment is to meet immediate financial hardship of the family and once it is offered 5 and accepted, there would be no question of any person to claim appointment on any other post. The aforementioned view taken by the Apex Court in the case of Umesh Kumar Nagpal (supra) has been also followed by the learned single Judge of this Court in the case of Basanti Kumari (supra). Again in the case of Rupendra Kumar Singh (supra), the learned single Judge, after considering the ratio of Umesh Prasad Nagpal (supra), had held as follows:- “11. The main grievance of the petitioner seems to be that he has better academic qualification and as such he should be appointed in Class III post. It is well known that appointment on compassionate ground is not an appointment on merit and here respective merits of the candidates are not considered. In this context the observation made in the Supreme Court judgment in the case of Smt. Phulwati (supra) cannot be construed as the part of the ratio of that judgment. The Supreme Court while directing appointment on compassionate ground observed that appointment on compassionate ground be made commensurate with the educational qualification of 6 the candidate. This direction of the Apex Court was by way of guidelines with facts of that case and cannot be treated as any statement of law. On the other hand from the other decision cited by the learned counsel for the respondents in the case of Umesh Kumar Nagpal (supra) it appears from paragraph nos. 4 and 5 that this question came up for consideration before the Supreme Court and the Supreme Court observed that “if the dependent of the deceased employee finds it below his dignity to accept the post offered, he is free not to do so” and the Supreme Court was very much clear that this post is not offered to cater to his status but to see the family through the economic calamity. And the view of the Supreme Court is that appointment on compassionate ground is not on merit but in order to help the family in question which has fallen on bad days. Therefore, the aforesaid observation in the case of Smt. Phoolwati (supra) cannot be construed as part of the ratio of the Supreme Court Judgment in that case. 12. In fact it has been very categorically laid down by the Supreme Court in the case of Madhav Rao Scindia vs. Union of 7 India reported in A.I.R. 1971 S.C. page 530 that it is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment. 13. Therefore, considering all these aspects of the matter, this Court is unable to grant any relief to the petitioner by directing the respondent University to appoint the petitioner on Class III post on compassionate ground. The stand of the University that just because there are vacancies in Class III post, all such vacancies cannot be filled up on compassionate ground is also unjustified.” Judged in this background, this Court would find it difficult to follow the order of the learned single Judge dated 23.7.2010 in the case of Shatrughan Kumar Bharti (supra), which has not noticed the binding precedent of the Apex Court in the case of Umesh Kumar Nagpal (supra) nor the other two judgments in the cases of Basant Kumar (supra) and Rupendra Kumar Singh (supra) therefore, the same has to be held as per 8 incurrium specially when this very aspect was also gone into by the Apex Court again in the case of State of Rajasthan Vs. Umraon Singh reported in 1994(6) SCC 560 ruling out the concept of endless compassion. The submission as with regard to the discrimination of the case of the petitioner has two facets. The appointment of the petitioner was made in the year 2007, whereas, the decision of the District Compassionate Appointment Committee to review those cases was taken in the year 2005, therefore, it was open for the petitioner to refuse such appointment and not to join the Class-IV post of peon. The petitioner did not do so and, in fact, happily joined the post of Peon offered to him and after joining the said post, he had filed this writ application on 6.12.2007 for claiming parity with the aforementioned four persons. To that extent, the petitioner will be bound by the principle of estoppel, inasmuch as, he had already accepted the appointment on Class-IV post and therefore he cannot be allowed to approbate and reprobate in the matter of appointment 9 from Class-IV post to Class-III post. The other aspect, which would really make the case of the petitioner distinguishable, is that the petitioner wanted to be appointed against a Class-III post of Teacher. The post of Teacher in all the schools, whether, primary, middle or secondary have been governed by the statutory Recruitment Rules, which require a person to be trained. The Government executive order of relaxation of training being contrary to the statutory Recruitment Rules, the same cannot be at least made basis for issuing a direction by this Court. In the case of other four persons, they were not seeking appointment on the post of Teacher but on any other Class-III post. How far that decision of review by the Establishment Committee was correct, inasmuch as, those four persons were also already appointed on Class-IV post, is a matter of concern and should be looked into by the competent authority but, that cannot be a ground for perpetuating an illegality by also appointing the petitioner on a Class-III post. Article 14 and 16 to the Constitution 10 of India as with regard to equality and equal opportunity in public employment cannot be enforced in a negative manner. Reference in this connection may be usefully made to the judgment of Apex Court in the case of State of Bihar Vs. Upendra Narayan Singh & Ors. reported in 2009(5)SCC 65, wherein, the Apex Court has held as follows:- “74. The above principles were extended to the judgment of the Court in State of Bihar v. Kameshwar Prasad Singh wherein this Court held as under: (SCC p. 111, para 30) “30. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals, others cannot claim the same illegality or irregularity on the ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits.” Before parting with, this Court must notice the submission of the learned counsel 11 for the petitioner that if the appointment of the petitioner on a Class-III post was not permissible, the case of four persons, who were given favorable treatment of being allowed to take the Class-III post after being appointed on Class-IV post on compassionate ground, should also be reviewed. There is a difficulty for this Court to straightway pass an order against them inasmuch as, none of the four persons have been impleaded party to this writ application but, then, as the case of these four persons may become bad precedent for the State and its functionaries, this Court would direct the Principal Secretary of the Personnel and Administrative Department to look into this aspect of the matter and examine the case of the aforesaid four persons and if it is found that their reappointment on Class-III post after being appointed on Class-IV post was not permissible, he would pass an appropriate order for reverting them to Class-IV post but, of course, after following the principles of natural justice. 12 That being so, this Court does not find any merit in this application and the same is, accordingly, dismissed. Rsh (Mihir Kumar Jha, J.)