IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7225 of 2010 1. Raj Kumar Tati S/O Late Ram Tahal Tati R/O Vill.- Chanadih, P.O.+P.S.- Katihar, Distt.- Katihar Versus 1. The State Of Bihar 2. The District Magistrate, Katihar 3. District Compassionate Committee, Katihar Through Its Chairman District Magistrate, Katihar 4. Lokaukt Bihar, Patna Through Its Deputy Secretary, Office Of Lokaukt, 4, Kotilya Marg, Patna-1 ----------- 3. 22.09.2011 I.A. No. 6431 of 2011 on behalf of the petitioner is stated to have been filed on 16.9.2011 and which is not on record. Copy has been served upon the respondents. The Court requested counsel for the petitioner to make available his copy so as not to hold up the proceedings on that ground. Let a Xerox copy placed by the counsel for the petitioner be kept on record. Learned counsel for the petitioner submits that the original petitioner has been deceased on 27.7.2011 and his wife desires to be substituted in his place to pursue the claim for compassionate appointment. The Court is not satisfied that the I.A. application deserves to be allowed for reasons to be discussed hereinafter. The writ application has become infructuous. The original petitioner (hereinafter referred to as the deceased) was the elder brother of one Ashok Kumar who died in harness on 10.10.1995. 2 The deceased filed Title Suit No. 33 of 1999 before the Munsif at Katihar seeking the relief for compassionate appointment as the only legal heir contending that his request had wrongly been rejected. The petitioner was stated to be dependent on his younger brother and they were living together. The defendants were debarred from filing written statement. The suit was decreed on 20.9.2000 holding entitlement for compassionate appointment. The State preferred Title Appeal No. 3 of 2001 before the District Judge at Katihar. The Appeal therefore came to be rejected on 28.11.2006. The appointment remaining elusive, the present application has been filed. The Court desists from technicalities, that if the deceased had obtained a decree for appointment on compassionate grounds it was for him to levy execution proceeding in his life time. A writ petition under Article 226 of the Constitution cannot be substitute for a regular proceeding in execution under the Code of Civil Procedure. But the writ application raises larger issues and considering the myraid possibilities of the two judgments being cited as precedents to lay claims for compassionate appointment in similar 3 manner, the Court considers it proper to deal with them on merits. The principle has been extracted in 91996) 7 SCC 444 (G.M. Telephones Vs. V. G. Desai) holding:- “15.……….But since the possibility of the impugned judgment being used as a precedent in future, cannot be ignored we feel that the impugned judgment of the Tribunal dated 27-4- 1992 cannot be allowed to stand and the matter calls for interference of this Court under Article 136 of the Constitution. We are not inclined to agree with the submission of Shri Shetye that since substantial justice has been rendered this Court should not interfere with the impugned judgment of the Tribunal. In our opinion under the impugned judgment the Tribunal has extended pensionary benefits to the respondent which were not available to him in law.” A compassionate appointment is an exception to the rule of every appointment in Government service to be made in accordance with Article 14 by open advertisement and competitive merit selection. Each time a compassionate appointment is made, Articles 14 and 16 of the Constitution stands violated. While Article 14 mandates equal opportunity for participation in context of employment, every time that a compassionate 4 appointment is made another is discriminated under Article 16 because he did not have the benefit of being the descendant of a deceased. It has therefore been held that any claim for compassionate appointment can be only and strictly in accordance with the Policy regulating the same. If the Policy provided that only the younger brother of a Government servant deceased in harness was eligible to be considered, it certainly has a social justification. The presumption is that the younger brother was dependent for his livelihood on the elder brother. If the policy did not provide for the elder brother to be considered for appointment on the death of the younger brother, no Court could have given a direction for consideration and/or appointment contrary to the policy. There was no challenge to the policy before the Courts below. There is no discussion either in the order of the Munsif or the appellate Court of the principles for compassionate appointment, the limitations thereof etc. Merely because the deceased may have obtained an order from the Court virtually ex parte with no written statement even having been filed, there is no occasion for the Court to uphold its validity. The limitations of such claim having to be 5 confined to the policy has been noticed in (2008) 13 SCC 730 (V. Sivamurthy vs. State of Andhra Pradesh):- “18. (c) Compassionate appointment can neither be claimed, nor be granted, unless the rules governing the service permit such appointments. Such appointments shall be strictly in accordance with the scheme governing such appointments and against existing vacancies.” Exercising its power of superintendence under Article 227 of the Constitution of India to prevent flagrant misinterpretation of the law which may persuade citizens to opine that they had such a claim where none really exists, it is necessary for the Court to hold that the judgments under consideration do not lay down the correct law and are therefore fit to be set aside. The duty of this Court under Article 227 with regard to orders of the present nature has been explained in 1954 SCR 565 (Waryam Singh Vs. Amarnath) as follows:- “12. This power of superintendence conferred by Article 227 is, as pointed out by Harries C.J., in Dalmia Jain Airways Ltd. V. Sukumar Mukherjee, to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors……” 6 The claim for compassionate appointment by the deceased was a personal cause of action. On the death of the deceased it lapsed as infructous. The wife of the deceased as the sister-in-law of the Government servant who died in harness dose not have any claim for compassionate appointment either under the policy nor she can lay such claim in pursuance of a death which took place as far back as 10.10.1995. The writ application is dismissed. P. Kumar ( Navin Sinha, J.)