IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.54 of 2008 AWANISH KUMAR, son of late Gauri Shankar Prasad Singh, resident of village Phulelpur, P.O. Phulelpur, P.S. Athmalgola, District Patna, presently posted as Daftari in the office of Executive Engineer, Road Division, Road Construction Department, Patna West … Petitioner Versus 1. THE STATE OF BIHAR through the District Magistrate, Patna 2. The Chief Engineer (Mechanical), Road Construction Department, Patna 3. The Superintending Engineer, Central Circle, Road Construction Department, Patna 4. The Executive Engineer, New Rajdhani Road Division, Road Construction Department, Patna 5. Smt. Pushpa Devi, Corresponding Clerk, Road and Construction Department, Magadh Anchal, Gaya … Respondents ----------- 2. 15.4.2011 Heard counsel for the petitioner and the counsel for the State. The prayer of the petitioner when this writ application was filed on 2.1.2008 read as follows: “I) For issuance of an appropriate writ, order or direction in the nature of mandamus commanding and directing the concern respondents to appoint the petitioner on Class III post which has been vacant with effect from 1.12.2007 on account of retirement of Sri Ramji Ram, Correspondence Clerk in the office of New Capital Road Division, Road Construction Department, Patna because the petitioner was 2 recommended to be appointed on Class III post by the Chairman of District Appointment Committee, Patna bearing Memo No. 2466 dated 31.7.2007 and in view of application filed by the petitioner dated 6.9.2007 before the respondent no.1 by which the petitioner prayed to wait till 30.11.2007 for his appointment on Class III post. II) For issuance of an appropriate writ, order or direction to the concern respondents to cancel official order bearing Memo No. 3645 dated 30.11.2007 by which the respondent no.5 has been posted till further order by virtue of his transfer as a Correspondence Clerk i.e. Class III post from Magadh Circle, Gaya Road Construction Department.” Counsel for the petitioner in fact would submit that when the District Compassionate Appointment Committee in its meeting held on 27.7.2007 had recommended for appointment of the petitioner on compassionate ground either against Class III or Class IV post, the respondents should have appointed the petitioner against Class III post only as a vacancy was going to take 3 place on 30.11.2007 on account of superannuation of one, a Correspondence Clerk, namely, Ramji Ram. Counsel for the State having filed the counter affidavit has explained that there was no vacancy altogether against a Class III post, the date on which either the Compassionate Appointment Committee had made a recommendation in favour of the petitioner or the date on which such appointment of the petitioner was made against a Class IV post. He has further submitted that after the petitioner was already appointed on 3.10.2007, a vacancy did arise on 1.12.2007 after superannuation of the Correspondence Clerk in the office of the Superintending Engineer, Central Circle of Road Construction Department, but then this vacancy was not sought to be filled up by making a fresh appointment on the post of Correspondence Clerk but only by way of transfer of a working employee who was already holding the post of lower division clerk in Road Construction Department at Patna City. Counsel for the petitioner in reply 4 would submit that apart from the illegality committed by the respondents in ignoring the petitioner to be appointed against the vacancy of retiring Correspondence Clerk and filling the said post by transfer the existing incumbent, there were other instances wherein initially a person was appointed on compassionate ground against a Class IV post but was later on absorbed against Class III post. For this purpose he would refer to an office order dated 18.6.2009, as contained in Annexure 6, showing appointment of one Ruchi Sinha on the post of Peon and her being subsequently transferred to the post of Correspondence Clerk by an order dated 30.11.2009 (Annexure 7). Since the rejoinder affidavit, brining altogether new fact about Ruchi Sinha which was not mentioned earlier in the writ application, has been filed today, the respondents have got no readymade answer. The issue still remains as to whether the petitioner has a right to be appointed against a Class III post? The recommendation of the Committee was to appoint him on any 5 post either of Class III or Class IV and the respondents had accordingly appointed him on a Class IV post on 3.10.2007 which had brought to an end to the misery being faced by the petitioner and other dependent family members of the deceased employee, who had died on 6.12.2002. If the petitioner was not interested in getting employment against Class IV post he ought to have refused but his plea that after he had joined the Class- IV post, he had filed an application that he was to ready wait till emergence of a vacancy on Class III post, would go to show that the petitioner was actually not aspiring for appointment on compassionate ground rather he was claiming a reservation in Government service on the ground that his father was a government servant who had died in active service and was to be replaced by the petitioner. Such is however not the concept of appointment on compassionate ground and in fact this aspect of the matter has been settled by the Apex Court in the case of State of Rajasthan Vs. Umrao Singh reported in (1994) 6 S.C.C. 560 wherein it has been held that there can not be endless 6 compassion and the claim stands extinguished once a post of appointment on compassionate ground is offered and accepted. Reference in this connection may be also made to the order of this Court in C.W.J.C.No. 13399/2001 (Bimlesh Kumar Jha vs. State of Bihar & ors.) which has also been affirmed by dismissal of an appeal, L.P.A.No. 87/2002, wherein it has been held that “appointment on compassionate ground is not a mode of appointment and no person can claim to be appointed on a higher post as a matter of right.” Therefore, this Court would safely hold that once the petitioner was appointed against a Class IV post and he had also joined that post his right of getting compassionate appointment had come to an end and he cannot be permitted to raise any further claim for now being adjusted or absorbed against Class III post inasmuch as that is not the scheme of appointment on compassionate ground. The other aspect, that the respondents subsequently in case of one Ruchi Sinha had deviated from this principle 7 in fact also cannot be gone into in this writ application in absence of Ruchi Sinha being made party of this writ application. More over from Annexure 7 it does not appear that Ruchi Sinha has been either promoted or absorbed against Class III post and her being assigned the job of a Class III post despite her appointment being made on Class IV post would require some sort of enquiry by the concerned Chief Engineer who will examine as to whether the appointment of Ruchi Sinha on class IV post was sought to be upgraded by way of her absorption against Class III post. The respondents, therefore, while examining the case of Ruchi Sinha would take into account that if her recommendation for compassionate ground had ultimately led to her appointment against Class IV post the same could not have been converted into a Class III post. This Court, however, must hasten to add that if it is only a working arrangement without upgrading or absorbing Ruchi Sinha on Class III post that will not be disturbed by the authorities, inasmuch as it is well open to the controlling authority to utilize the 8 services of even a Class IV employee against a Class III post if there be such pressing requirement for getting the work of post of Class III done by a working employee instead of making fresh appointment. As a matter of fact the petitioner also claims that he too has been asked to discharge the work of Correspondence Clerk and therefore, it may be that Ruchi Sinha could have been similarly assigned only the work of Class III post without upgrading or absorbing her on a Class III post. In such cases either Ruchi Sinha or the petitioner would at best be entitled for 20% of the additional pay, subject to a sum of Rs. 250/- per month and nothing more than that much less the pay scale or pay of a Class III employee. Be that as it may, this Court does not find any merit in the claim of the petitioner for being reappointed on compassionate ground against a Class III post and accordingly this application is dismissed. (Mihir Kumar Jha,J.) Surendra/ 9