\o O, RE P Neg/5 5200 Xr c I x I i I I x J § I l PR é ‘ (Si Matr) ervce te ‘. I ETITIONE Jd d ltenra Kumar Sahu age bout 25 years, S/o Late Sr CL Sahu, Ro Village inhari,‘ Post — Singh’ari aanur Bilasur (C.G.r §R$J V$ }) Sate o atsgar, throuh, e PrInCIpaI Secretary Department of General mlnlstranon antralaya, K S Bhawan Raiur C G e Secrear, Scoo EducationiDepartmen Mantralaya, D K S Bhawan i Ralpur (CyG) istric Education Officer anker District — Bilaspur C G ( ) The Collector Bilaspur District — Bilaspur (C G ) iA‘axa,w a M mbawmmwmewaawwW‘ Mm. ¢ RIIT PETITION UNDER ARTICLE ’226 1227 OF i '. : l ‘ ; THEICONSTITUTION OF INDIA FORI ISSUNCE OF :5 APPROPRIATE i WRITS I ORDERS AND l DIRECTION i a» i L ii 1. iParticulars of the Petitioner - ‘r A. 1 As stated in the cause title above. ‘i ¥ 21' I 2. ‘Particulars of the Respondents: - ‘ {As stated in the cause title. x P l. ‘ i p LN...” fie» a? ‘ 3 ; i :"' 1&4: m} l' v“: ,J w; i z t. s. / IN 1wHE HIGH COURT OF JUDICATU AT BILASPUR w 74 a hl / Sg ,. Rtp, p )r t f Chhtih g th / Ad M D p ( ) 2) Th ty hl t Dt K 4) { W ' . i E i i I \. HIGH COURT OF CHHATTISGARH AT BILASPUR . ' (Hon. Mr. Justice Pritinker Diwaker) Writ Petition No. 31 75 of 2004 Writ Petition N0. 2099 of 2004 A Writ Petition No. 21 64 of 2004 _ Writ Petition No. 2732 of 200V Writ Petition No. 3428 of 2004. Writ Petition No. 3849 of 2004 ' Writ Petition No. 3899 of 2004 Writ Petition No. 3902 of 2004 Writ Petition No. 4244 of 2004 Writ Petitibnno. 1966 ofzao4 Post for pronouncement of order on g .10.2010 sai- ‘Pritinker Diwaker , Judge kwi?i ~ * J it} /\‘ ‘\‘ HIH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition No. 31 75 of 2004 Rekharam Nidhi and others PETITIONERS VERSUS RESPONDENTS State of Chhattisgarh 'and others Writ Petition No. 2099 of 2004 PETITIONERS Manish Tiwari and others VERSUS RESPONDENTS State of Chhattisgarh and others Writ Petition No. 21 64 of 2004 PETITIONER ' J itendra Kumar Sahu VERSUS RESPONDENTS State of Chhattisgarh and others Writ Petition No. 2732 of 2004 PETITIONERS Bhuwanehwar Patel and others VERSUS RESPONDENTS State of'Chhattisgarh and others Writ Petition No. 3428 of 2004 PETITIONERS Smtg Dhaneshwari Verma and others ‘VERsus State ofiChhattisgarh and others RESPONDENTS i \ \ Writ Petition No. 3849 ofizoo4 i: Madhav :Das Sahu PETITIONER i . i i i i G _2_ QR VERSUS State of Chhattisgarh and others Writ Petition No. 3899 of 2004 Baiamani Nayak VERSUS . state of Chhattisgarh and others Writ Petition No. 3902 of 2004 Writ Petition No. 4244 of 2004 Tabara‘k Hussain and others VERSUS State of Chhattisgarh and others Writ Petition N0. 1966 of 2004 Sanjayw Raktate VERSUS State of Chhattisgarh and others Shri Sandeep Dubey, counsel for the petitioners. - Shri Pravin Das, Dy. GA for the respondents/State. WRIT PETITION UNDER ARETICLE 226 OF THE CONSTITUTION OF INDIA RESPONDENTS PETITIONER RESPONDENTS PETITIONERS RESPONDENTS PETITIONER RESPONDENTS PETITIONERS Bandish Kumar Nampandey VERSUS RESPONDENTS State of Chhattisgarh and others _§__ ORDER ( 8.10.2010) é9 In all the aforesaid petitions the law. point raised by the petitioners is that though they are entitied to be appointed as Assistant Teacher on Compassionate ground, they have been illegally appointed as Shiksha Karmi Grade ill and therefore they have prayed for issuance of directions that they may be appointed as Assistant Teacher in place of Shiksha Karmi Grade lll The other law pornt Involved in all these cases Is that havmg accepted the apporntment as Shiksha Karmi on compassronate ground and worked on the said post for sufficient time, can they subsequently claim for their appointment on a superior post. Thus the point to be decided being common, all these i petitions are disposed of by this common order. 2. Facts, in brief, of all the cases run thus: 3. ln. W.P. No. 3175/2004 there are total O4 petitioners namely‘ Rekharam Nidhi, Dinesh Kumar Patel, Yashwant Kumar Shandilya and ‘ Jhumar Lal Kashyap. Father of petitioner No.1 namely late Shri Jhansketan Nidhi died on 22.3.1998 while working as head master of_ primary school, Nava Gaon, Raipur and after his death the petitioner No.1 was appointed as Shiksha Karmi Grade lll vide Annexure P-1. Father of Dinesh Kumar Patel - petitioner No.2 herein, namely late Shri Daitari Ram Patel who was working as headmaster in Primary School, Guruii Bhata, Raipur died on 16.1.1983 and after his death the petitioner No.2 was appointed as Shiksha Karmi Grade Ill on compassionate ground on 30.7.1999 vide Annexure P-1. Father of Yashwant Kumar Shandilya. - petitioner No.3 herein, namely, late Shri Dhaneshwar Singh Shandilya died on 28.8.1993 while working as head master in Middle School Barbahali District Raipur and after his death i the petitioner No3 was appornted as Shiksha Karmi Grade lll on f ’ l 6 7 1998 vrde Annexure P-2 Father of Jhumar Lal Kashyap —- i petitioner No4 herein namely late Shri Dukhuram Kashyap died on 1 2 1998 while working as head master in Primary School Nawagaon A _4_ District Raipur and after his death the petitioner No. 4 was appointed as Shiksha Karmi Grade Ill on 3.8.1998 vide Annexure P-3. 4. ln W.P. N6. 1966/2004 father of Sanjay Raktate — the petitioner herein, namely late Pancri Rao died on 19.11.1997 while working as Assistant Teacher in Primary School, Mathiya Nawagaon, District Kanker and after his death the petitioner was appointed as Assistant Teacher on 21.4.1998 vide Annexure P-1. However, on 23.5.1998 a fresh order was issued in favour of this petitioner along with other candidates and he was then appointed as Shiksha Karmi Grade Ill vi Annexure P-2. 5. In W.P. No. 2099/2004 father of Manish Tiwari — the petitioner No.1 herein, namely late Ram Awadh Tiwari died on 26.6.1997 while working as Assistant Teacher in Primary School, Raipur and after his death the petitioner No.1 was appointed as Shiksha Karmi Grade Ill on 29.6.1999 vide Annexure P-1. Father of Sudhir Singh Thakur - the petitioner N02 herein namely late Sagar Singh Thakur died on 24 3 1995 while working as Assrstant Teacher in Primary School Raipur and after his death the petitioner No2 was appomted as Shiksha Karmi Grade Ill on 19 11 1999 Vide Annexure P—2 6. In W P No 2164/2004 father of Jitendra Kumar — the petitioner herein namely late Shri C L Sahu died on 18 9 1987 while working as ASSistant Teacher in Primary School, Rani Gaon District Bilaspur and after his death the petitioner was appointed as Shiksha Karmi Grade lll on 7.1.1999 vide Annexure P-2. '7.‘ ln W.P. No. 2732/2004 father of Bhuvaneshwar Patel - the petitioner No.1 herein, namely late Shri Chain Kumar Patel died on 1.3.1993 while working as Assistant Teacher in Primary School, Raigarh District and after his death the petitioner‘No 1 was appointed as Shiksha Karmi Grade lll on 23 12 1999 Vide Annexure P-1 Father of Kuni Bihari Patel the petitioner No 2 herein namely late Shri T R Patel died on 97 1999 while working as Head Master in Middle School Raigarh District and after his death the petitioner No2 was de a , / Q3 ‘5.— appointed as Shiksha Karmi Grade Ill on 27.10.1999 vide Annexure P- 2. 8. In WP No 3428/2004 father of Smt Dhaneshwan — the petitioner No1 herein namely late lshwan Prasad Verma died on 18.4.1997 while working as ASSIstant Teacher In Primary School, Ralpur District and after his death the petitioner No.1 was appointed as Shiksha Karmi Grade Ill on 1.7.1998 vide Annexure P-1. Father of Laxmi Narayan Sahu — the petitioner No.2 herein, namely late M.L. Sahu died on 19.8.1998 while working as Assistant Teacher, in Raipur District and after his death the petitioner No.2 was appointed as‘ Shiksha Karmi Grade lll on 25.12.1999 vide annexure P-2. 9. ln W.P. No. 3849/2004 father of Madhav Das Sahu — the petitioner herein, namely late Bishau Das Sahu died on 10.12.1998 while working as Head Master in Primary School, Tilai District .‘ Rajnandgaon and after his death the petitioner was appointed as ~ Shiksha Karmi Grade lil on 9.1 1 .1999 vide annexure P-1. 10. ln W.P. No. 3899/2004 father of Balamani Nayak -- the petitioner herein 'namely late Badri Prasad Nayak died on 1 1O 1998 while working as Assrstant Teacher in Primary School Basna District Mahasamund and after his death the petitioner was appomted as Shiksha Karmi Grade ill on 28.10.1999 Vide Annexure P-1. 11. In W.P. No. 3902/2004 father of Bandish Kumar Nampandey —‘ the petitioner herein, namely late Kalicharan Nampandey died on 2.6.1983 while working as Assistant Teacher in, Middle School, Ramtola District Rajnandgaon and after his death the petitioner was appointed as Shiksha Karmi Grade lll on 2.12.1999 vide Annexure P-1. 12. ln W.P. No. .4244/2004 father of Tabarak Hussain — 'the _ petitioner No 1 herein namely late Naimun Hussain died on 29 5 1998 V while working as Head Master in Primary School Patrapali Block Saraipali District Mahasamund and after his death the petitioner No 1 ‘was appomted as Shiksha Karmi Grade .lll on 12.12.1998 Vide A / a ....6_ Annexure P-1. Father of Shit. Rupa Choudhary — the» petitioner No.2 herein, namely late Gopal Chandra Ravani djed on 26.4.1995 while working as Assistant Teacher in Primary School, District Mahasamund and after his death the petitioner No.2 was appointed as Shiksha Karmi Grade lll on 14.12.1998 vlde Annexure P-1. 13. Undisputed facts are that subsequently all the petitioners were regularized as Shiksha Karmi Grade lll in the year 2002, 2003 and 2004 and they are still working on the same post 4-5 years after their servtces the petitioners have fled these writ petitions before this Court claiming that they ought to have been appomted as Ass:stant Teacher on compassionate ground and not as Shiksha Karmi Grade lll. Petitioners have raised‘the following points in their writ petitions. (A) As per the government policy dated 10.6.1994 there is no mentiOn of the word as Shiksha Karmi and the compassnonate appomtments can be given only as Patwari Health Worker Forest Guard Constable Asststant Teacher etc and the petitioners have been appomted pursuant to this policy where there is no mention of the word Shiksha Karmi. (B) As per the policy dated 10.6.1994 there can be no imposition of ban. (C) While appointing. the petitioners as Shiksha Karmi Grade lll‘“ some persons have been appointed as Assistant Grade lll vide order dated 27.10.1999 (Annexure P-5). . - V \ (D) Post of Shiksha Karmi is not a State cadre onebut is the post of Panchayat Department under the control of Janpad and Jila Panchayat. \ (E) Post of Assistant Teacher is not a dying cadre as per the document of Annexure D 1 dated 26 5 2009 and Annexure D 2 dated 25 2 2006 >4 ($7 ~7_ (F) That in view of the judgment passed by this Court in W.P. No. 1686/2004 the petitioners are entitled to be appointed as per the scheme prevailing at the relevant time. (G) \ That the petitioners accepted the appointment on the post of l Shiksha Karmi under the impression that the same is a Government job because in some of the cases even the appointment orders have been issued by the Collector and District Education Officer. 14. Replying to the arguments of the counsel for the petitioner, counsel for the respondents/State submits that even if the word Shiksha Karmi has not been mentioned in the policy dated 10.6.1994, it cannot be construed that the petitioners cannot be appointed on the said post because after mentioning certain posts, word “etc." has been used and that includes the word Shiksha Karmi or any other post for that matter. He submits that word Shiksha Karmi came into existence in the year 1997 when the Shiksha Karmi (Recruitment & Conditions of n Service) Rules 1997 were introduced and on 20.1.1998 vide Annexure R-2 a decision was taken by the Government not to directly fill up the posts on compassionate ground or by way of special appointment against the post of Assistant Teacher, Teacher or Lecturer by way of direct recruitment, general appointment or compassionate appointment or special appointment and therefore the petitioners should feel obliged that they were appointed as Shiksha Karmi at least and that their appointment was made much after the appointment made vide Annexure R—2. He submits that the appointment on compassionate ground 'cannot be claimed as a matter of. righLand the petitioners should feel contented and happy for gettinglthe same though as back door entry. He submits that it is nowhere mentioned that the post of Assistant Teacher is a dying cadre post. Appointment of Assistant Teacher is made as per the existing policy and after having joined on the post of Shiksha Karmi and having :been regularized on the said post the petitioners cannot make sudden claim for being appointed as Assistant Teacher. He submits that once the‘petitioners have accepted ‘ the terms of appointment, they are estopped from raising any such overnment for this purpose." (ailried as a matter of right. a 16 As regards the arg thét in the policy dated l ' / ument advanced by counsel Efor the petitioners 10.6.1994 there is no mention liof word “Shiksha G C ha Karmi, it hardly makes any difference whether the word “Shiksha Karmi" is there in the policy or Assistant Teacher, word , it hardly post of Shiksha Karmi is in the up or in the set up of PanChayat department. x “ View bf the document of AnneXure D ofAnnexure D—2 dated 25.2.2006. l be decided is not whether Assista policy and the legal provisions. This Court fun‘her finds no force in the under argument the impress/on that the petitioners that the have same accepted the post of Shiksha Karmi is a government job because in # H —— been appointed on the post of Shiksha Karmi. It is a settled position of law that compassionate appointment cannot be claimed as a matter of right. 17. In the present cases all the petitioners were appointed as Shiksha Karmi in the year 1998 and 1999, their services were later’ reguiarized and for about four years all of them kept quiet and were happy while working as Shiksha Karmi but aii of a sudden in the year 2004 they have fried the present petitions saying that they should have been appointed as Assistant Teacher and not Shiksha Karmi. The petitioners have not even bothered to explain this inordinate delay in tiling the petitions and have merely stated therein that there is no delay in filing the petitions. The present petitions are liable to be dismissed on the ground of unexplained delay and laches also. Furthermore, from the facts and circumstances of the case, it is apparent that the petitioners have exhausted the right of compassionate appointment and now they cannot say that they should have been appointed on the superior post and not as Shiksha Karmi. Ins the matter of State of Rajsthan v. Umrao Sinqh ”reported in (1994) 6 SCC 560 it has been held by the Apex Court as under: 8. Admittedly the respondent's father died in harness while working as Sub-inspector, CID (Special Branch) on 16-3-1988. The respondent tiled an application on 8—4-1988 for his appointment on compassionate ground as Sub-inspector or LDC according to the availability of vaCancy. 0n a consideration of his plea, he was appointed to the post of LDC by order dated 14.12.1989. He accepted the appointment as LDC Therefore the right to be considered for the apporntment on compassionate ground was consummated No further consrderation on compassionate ground would even arise Othenmse it would be a case of “endless compassion". Eligibility to be appointed as Sub-inspector of‘Police‘ is one thing, the process of selection is yet another: thing. Merely because of the so-called eligibility, the learned Single Judge of the High Court was persuaded to the View that direction be issued under prowso to Rule 5 of Ruies which has no application to the facts of this case 9. Since both the Sides relied on Naresh Kumar Balis case we Will now refer to the same We had indicated our mind in that very ruling in paragraph 15 of the said judgment. it reads as under: “Though the respondent claimed that he had applied for the post of a teacher the Subordinate Service Selection Board had not chosen'him for the post of teacher because he did not have the requisite qualification. In fact, the respondent did not object to his appointment as a clerk and his claim for consideration for the post of teacher was one ‘year after his appointment. Thus, the appointment on compassionate ground as per the scheme had been Completed.” Therefore, one the right has consummated as we indicated earlier, any further or second consideration for? a higher post on the ground of compassion would not arise. 18. Almost similar view has been taken by, the Apex Court in the matter of State of Har’yana v. Naresh Kumar Bali reported in (1994) 4 SCC 448. In the matter of LG. (Karmik) and others v. Prahlad Mani Tripathi reported in (2007) SCC 162 it has been held by the Apex Court as under: ’6. An employee of a State enjoys a status. Recruitment of employees of the State is governed by the rules framed under a statute or the proviso appended to Article 309 of the Constitution of India. ln the matter of appointment, the State is obligated to give effect to the constitutional scheme of equality as adumbrated under Articles 14 and 16 of‘ the Constitution of India. All appointments, therefore, must conform to the said constitutional scheme. This Court, howeVer, while laying emphasis on the ‘said proposition carved out an exception in favour of the children or other relatives of the officer who dies or who becomes incapacitated while rendering services in the Police Department. \ 7. Public employment is consideredf to be a wealth. It in terms of the constitutional scheme tcannot be given on descent. When such an exception has been carved out by this Court, the same must be strictly complied with. Appointment on compassionate :ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. When an appointment is made ong compassionate ground, it should be kept confined only to thepurpose it seeks to achieve, the idea being not to provide for endless compassion. I _. l3__ 8. In National Institute of'Technology v. Niraj Kumar Singh this Court has stated the law in the following terms: (SCC p.487, para 16) "16. All public appointments must be in ;consonance with Article 16 of the Constitution of India. Exceptions carved out therefore are the cases where appointments are to be given to the widow or the dependent children of the employee who died in harness. Such an exception is carved out with a view to see that the family of the deceased employee who has died in harness does not'become a destitute. No appointment, therefore, on compassionate ground can be granted to a person other than those for whose benefit the exception has been carved out. Other family members of the deceased employee would not drive any benem thereunder." . ln State of Rajasthan v. Umrao Singh this Court has categorically stated that once the right is consummated, any further or second consideration for higher post on the ground of compassion would not arise. 10. Again in State of Haryana v. Ankur Gupta this C0urt held: (SCC p.707, para 6) ”6. As was observed in State of Haryana v. Rani Devi it need not be pointed out that the claim of the person concerned for appointment o‘n compassionate ground is based on the premise that he was dependent on the deceased employee Strictly, this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of lndra However such claim rs consrdered as reasonable and permrssrble on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service That is why it is necessary for the authorities to frame rules regulations or to Issue such administrative orders which can stand the test of Articles 14 and 16 Apporntment on compassronate ground cannot be claimed as a matter of right Dre In Harness Scheme cannot be made applicable to all types of posts irrespective of the nature of servrce rendered by the deceased employee. In Rani Devi case it was held that the scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. I LIC of India v. Asa Ramchhandra / n h *‘Ié/_ Ambekar it was pointed out that the High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments. lt-was noted in Umesh Kumar Nagpal .v. State of Haryana that as a rule, in public service appointments should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. ln such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased." See also Food Corpn. Of lndia v. Ram Kesh Yadav. 11. The respondent, thus, could be offeredan appointment only to the post for which he was suitable. ' 12. Furthermore; the respondent accepted the said post without any demur whatsoever. He, therefore, upon obtaining appointment in a lower post could not have been permitted to turn round and contend that he was entitled for a higher post although not eligible therefore. A person cannot be appointed. unless he fumls the eligibility criteria. Physical fitness being an essential eligibility criteria, the Superintendent of Police could not have made any recommendation in violation of the rules. Nothing has been shown before us that even the petitioner came within the purview of any provisions containing grant of relaxation of such qualification. Whenever, a person invokes such a provision, it would be for him to show (‘ that the authority is vested with such’a power. 19. Time and again it has been reiterated by the Apex Court that th compassionate appointment. is a back door enitry and therefore the. petitioners should feel satisfied for getting the posit of Shiksha Karmi on compassionate ground. Even this Court in WE (S) No.4701/2008 ‘ (Dinesh Kumar Garg v. State of Chhattisgarh ahd others) and other identical matters, has‘already decided this point as to whether Shiksha . l i l n e .- Karmis appointed on compassionate groun can- seek the appointmen on higher post and ultimately dismissed the petitioners’ ciaim for the Same. o t t l 20. In view f the facts discussed above and he setled lega position wh respect to the cpassionate appointment, this Court is of the considered opinin that the present petitions assailing th action of the respondnts in giving compassionate appointment to the petitidners on the post of Shiksha Kami, do not have any meri and