IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10606 of 2006 Phool Kumari Rani, widow of Late Ram Dayalu Singh, resident of village- Chhotaki Ladha, P.O.- Pindaruchha, P.S.- Kamtaul, District- Darbhanga. At present resident of Mohalla- Azam Nagar, Ward No.-5, P.S. Sadar Mabbi, District- Darbhanga ……………. Petitioner Versus 1. The Bharat Sanchar Nigam Ltd.through its Chairman-cum- Managing Director, BSNL, Statesman House, Barakhambha Road, New Delhi 2. The Chairman-cum-Managing Director, BSNL, Statesman House, Barakhambha Road, New Delhi 3. The Chief General Manager, BSNL, Bihar Circle, Patna 4. The General Manager, BSNL, Telecom District- Darbhanga 5. The Divisional Engineer (Administration), office of GMTD, Darbhanga …………………… Respondents. ----------- For the petitioner: M/S Prem Kumar Jha& Arun Kumar Jha, Advocates For the BSNL : Mr. Rakesh Kumar, Advocate. ----------- 2. 17.04.2009 Heard learned counsel for the petitioner and learned counsel for the BSNL. The petitioner seeks a direction upon the respondent- authorities of the BSNL to consider and take final decision for her appointment on the post of Telecom Office Assistant in the cadre of Group-C on compassionate ground like similarly situated other candidates on the basis of the recommendation for the said post although on the option sought and exercised she was appointed on a Group-D post and joined therein. The petitioner applied for appointment on compassionate ground on 21.6.1999 after the death of her husband on 14.5.1999 while he was working in the Office of GMTD, Darbhanga. Her case for appointment on compassionate ground was considered and approved in the cadre of Group-C by letter dated 16.10.2000 (Annexure-1) issued by the Chief General Manager, Telecom, Bihar - 2 - Circle, Patna like similarly situated many other candidates. Immediately thereafter by letter dated 19.10.2000 she was informed that there was no vacancy on Group-C post and she could opt for appointment on Group-D post instead. It was made clear in the said letter that willingness once exercised shall be final and she could not thereafter claim for appointment on any Group-C post on compassionate ground. The petitioner exercised her option and was appointed in the cadre of Group-D in the Department of Telecom Services on compassionate ground. The admitted position is that a large number of other persons whose cases had been recommended for appointment on Group-C post also exercised their options and they were also appointed on Group-D posts. Some of the candidates however, did not exercise the option and decided to wait until there was vacancy of Group-C posts. Some of those candidates have accordingly been appointed from July 2001 onwards. The petitioner did not raise any claim even at that stage but much latter she sent a legal notice dated 7.4.2006 to the authorities of the BSNL claiming absorption on Group-C post on the ground that similarly situated other persons have been appointed on Group-C post. In the letter dated 5.8.2006 (Annexure-9) issued by the Divisional Engineer (Administration), Office of the General Manager, Telecom, Darbhanga it was stated that she having exercised her option and appointed on Group-D post without waiting for vacancy in Group-C post, her option once given was final and therefore, there can be no change of Group-D to C post. Aggrieved by the same the petitioner - 3 - has approached this Court. Learned counsel for the petitioner submits that the authorities of the BSNL had played fraud upon the petitioner and discriminated against her since there were backlog vacancies coming from the year 1996 which were available for appointment on Group-C post but deliberately within three days of approval of her appointment on compassionate ground on Group-C post she had been asked to file option for Group-D post and considering her desperate financial situation the petitioner had no option but to accept the appointment on Group-D post. It is submitted that the option was asked only for the purpose of benefiting certain other employees who were subsequently appointed in the year 2001 on those very vacancies which were already existing and thus the petitioner would be entitled to be treated at par with those employees who were given appointment on the said post. In support of the same the petitioner has filed various documents showing the creation of 85 posts for filling up by compassionate appointment in the year 1996. Learned counsel for the petitioner has relied upon several decisions of this Court in this regard. The first such case is of Vidyut Board Anukampa Niyukti Sangharsh Samiti & Ors. Vs. The Bihar State Electricity Board & Ors.: 2006(2) BBCJ(V)-103, in which it was held that if a person chooses not to accept the appointment on Class-IV post that is sufficient to disentitle the said person for being appointed on compassionate ground and that shows that the petitioner is not in distress. The said case does not in any way support the case - 4 - of the petitioner. The next case relied upon by learned counsel is of Manoj Kumar MishraVs. State of Bihar & ors: 2001(3) PLJR 582. In the said decision it was held that if Class III post is available and a person has been found fit for appointment on the said post then the same cannot be denied to him as it would amount to violation of Articles 14 and 16 of the Constitution. In the present matter, the case of the respondents being that there was no vacancy available in the year 2000 when the petitioner was given chance to exercise option, the said decision cannot apply. Learned counsel also relies upon a decision of the Supreme Court in the case of Surya Kant Kadam Vs. State of Karnataka & Ors: 2001(4) PLJR 19(SC), wherein it was held that when similarly situated persons were offered the post of Sub-Inspector of Excise then the same may not have been denied to the petitioner and he could not have been appointed as Second Division Assistant/Clerk. In the said case the stand of the State was that the candidate could not be appointed on the post of Sub-Inspector of Excise and in the said circumstances, the petitioner of that case had accepted the appointment on the post of Second Division Assistant/Clerk but the other persons continued to litigate the matter and ultimately they turned out to be successful. In the said circumstances, the Supreme Court held that the petitioner was also entitled to appointment on the post of Sub-Inspector of Excise. The said case also cannot be of any benefit to the petitioner since that was - 5 - not a case of non-availability of vacancy and exercise of option, rather it was a case where the State itself had refused to make appointment on a certain post which was subsequently permitted by the Tribunal, and therefore it was held that the same benefit should enure to the petitioner of that case. The last case relied upon by learned counsel for the petitioner is that of Madhuri Kumari Sinha Vs. The State of Bihar & Ors: 2000(3) PLJR 406, wherein it was held that if a person is recommended for appointment on Class III post by the District Compassionate Committee, it is not open to the authorities to again force the candidate to undergo a merit test and hold him unfit for appointment on Class-III post. The facts of this case also stand on entirely different footing and it was nowhere the stand of the respondent-BSNL that the petitioner was unfit for appointment on Group-C post, rather she could not be given the same in the absence of vacancy in Group-C post and option was given to join on Group-D post which she exercised. Learned counsel for the BSNL, on the other hand, supports the action of the BSNL authorities and strongly refutes any mala fide or fraud being played by the authorities. It is submitted that a large number of persons had applied and were recommended for compassionate appointment on Group-C post but in the absence of vacancies they were permitted to exercise option for being appointed on grade-D post and accordingly as many as 57 persons were appointed in September, 2000 and further 12 appointments were made - 6 - in December, 2000 including that of the petitioner. It is submitted that it is only subsequently in the year 2001 when vacancies arose in Group-C post that the candidates who had not opted for appointment on Group-D post were permitted to join on Group-C post. It is further submitted by learned counsel for the respondents that compassionate appointment is not a matter where any question of status is involved and is only to enable the family of the deceased employee to tide over the immediate financial crisis and thus if a person has exercised the option for Group-D post then it is not open to her to subsequently seek higher Group-C post on any basis since the claim for compassionate appointment would come to an end on the exercise of option and joining on the lower post that was available and offered to the person concerned. In the said circumstances, it is submitted that the petitioner having once exercised her option and joined Group-D post she cannot be permitted after more than five years to raise a dispute in that regard by making different types of allegations against the authorities of the BSNL, when not a whisper was made at any time previously regarding any such discrimination or fraud being played by the authorities of the BSNL. This Court on a consideration of the rival submissions finds sufficient force in the submission of learned counsel for the respondents. The very fact that the petitioner after appointment in December, 2000 and further appointments of other similarly situated persons in 2001 on higher posts, never raised any such dispute and - 7 - approached this Court after more than five years, would be sufficient to hold that her writ application is not fit to be considered at such belated stage. Even apart from that it is an established principle in the matter of compassionate appointment that when a post is offered and accepted and the candidate joins on the said post, the claim for compassionate appointment comes to an end and there cannot be limitless compassion and a person cannot be permitted to again get compassionate appointment on any other higher post or otherwise. Considering the fact that the petitioner’s appointment was not the sole case but a large number of similarly situated persons had given option to join Group-D post despite they having been found suitable for Group-C post and had been appointed, there cannot be any occasion to reconsider the case of the petitioner alone for appointment on Group-C post. Any such interference at this stage can only open a Pandora’s Box and such claims can be raised by other similarly situated persons who had also exercised their option like the petitioner. In the light of the aforesaid discussion, there is no merit in the writ application and it is accordingly dismissed. S.Pandey (Ramesh Kumar Datta, J.)