IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2855 of 2007 Most. Lalita Devi, Wife of Late Jai Prakash Mishra, Resident of Village Barahi, P.S. Nawhatta, Distt. Saharsa. -------- Petitioner Versus 1. The State of Bihar. 2. Director, Primary Education, Bihar. 3. District Magistrate cum Chairman, District Establishment Committee, Compassionate Appointment, Saharsa. 4. District Superintendent of Education, Saharsa. ------- Respondents With CWJC No.10459 of 2007 Most. Lalita Devi, Wife of Late Jai Prakash Mishra, Resident of Village Barahi, P.S. Nawhatta, Distt. Saharsa. -------- Petitioner Versus 1. The State of Bihar. 2. Director, Primary Education, Bihar. 3. District Magistrate cum Chairman, District Establishment Committee, Compassionate Appointment, Saharsa. 4. District Superintendent of Education, Saharsa. ------- Respondents ----------- 3 24.10.2011 Heard Mr. Anil Kumar Mukund, learned counsel for the petitioner, in both the writ applications. In CWJC No. 2855 of 2007, the petitioner has made a prayer for a direction to the respondents to give her a post of Grade-III employee preferably on the post of Teacher for which she had been recommended in the meeting of the District Establishment Committee held on 7.7.1997. In CWJC No. 10459 of 2007, the petitioner has sought for a direction for payment of her salary since 11.6.1998 as an 2 Assistant Teacher. Mr. Mukund, learned counsel for the petitioner, would submit that when the husband of the petitioner died on 30.3.1987, the respondents had wrongfully denied her the compassionate appointment for a period of almost eight years and ultimately had also rejected her case on a wholly misconceived notion that her date of birth was 16.2.1973 and thus minor on the date of death of her husband. He would eventually refer to an order of this Court dated 11.2.1997 whereby and whereunder this Court had directed the respondents to consider the case of the petitioner for her appointment on compassionate ground by treating her date of birth to be on 1.12.1954 in place of 16.2.1973. He has further submitted that after such a direction was given by this Court in the order dated 11.2.1997 in CWJC No. 1637 of 1996, the District Compassionate Appointment Committee had recommended for appointment of the petitioner on the post of Assistant Teacher and in fact the District Education Establishment Committee, the appointing authority of the post of Teachers in Primary 3 Schools, had also taken a decision to appoint the petitioner on the post of Teacher and also assigned the place of posting but even then the formal order of appointment of the petitioner on compassionate ground was not issued primarily on account of the fact that the District Education Officer, Saharsa had written to the Director, Primary Education for relaxation of age for the petitioner. He has also explained that when nothing was done as with regard to appointing the petitioner on compassionate ground, she had again come to this Court in CWJC No. 6953 of 2002 and it was only after that when the writ application was disposed of on 20.7.2004 that her order of appointment was issued on 16.12.2005 but, not against the post of Teacher or even a Class-III post but only against Class-IV post. He has submitted that petitioner had therefore no option but, to accept her such appointment made on a Class-IV post. In this background the learned counsel is of the view that the petitioner right from the beginning was entitled to be appointed against a Class-III post and if her appointment was not made on such a Class-III post, it was primarily on account of the 4 fault of the officials of the department and therefore a direction should be issued to the Respondents for appointment of the petitioner on a Class-III post with retrospective effect and the consequential payment of her salary. Counsel for the State, on the other hand, would submit that the delay in the appointment of the petitioner in between 1987 to 1995 cannot be ascribed due to any fault of official respondents, inasmuch as, the petitioner's own application in the prescribed proforma had shown her date of birth to be 16.2.1973. This aspect of the matter in fact was also noted by this Court while disposing of her first writ application. She has further submitted that the post of Teacher in a Primary School, being governed by the Statutory Rules, require a person to be trained or an exemption to be given by the Director, Primary Education. In the case of the petitioner, no such exemption was given and, therefore, when the District Education Officer had reported the matter to the District Compassionate Appointment Committee that there was no other vacant Class-III post on which the petitioner could be appointed, 5 the compassionate appointment Committee had revised its earlier recommendation and had by a letter dated 22.7.2005 pursuant to the deliberation in the meeting held on 29.6.2005, recommended her for appointment of the petitioner even on a Class-IV post. Learned counsel for the State has accordingly justified that in the given circumstances, the appointment of the petitioner on a Class- IV post cannot be said to be either illogical or contrary to the recommendation of the District Compassionate Appointment Committee. As noted above, there are two writ applications and in one of them the prayer is for payment of salary on the post of Assistant Teacher with effect from 11.6.1998. The fate of that writ application will depend on the aspect as to whether the petitioner was ever qualified for the post of Teacher in a Primary School. It is not in doubt that the petitioner is a mere Matriculate and has not completed the Teachers Training Course. The circular of the State Government dated 5.10.1991 laying down the policy of compassionate appointment in no uncertain terms prescribes that a person cannot be appointed on a post for which he or she does 6 not possess the requisite qualification. The reason that the petitioner could not be appointed on the post of Teacher due to her not possessing the qualification of Teachers Training being not in dispute, this Court would find that no writ of mandamus can be issued for payment of salary of the petitioner on the post of Teacher on which she was never appointed. As with regard to the prayer in the other writ application for a direction for appointment of the petitioner on any other Class-III post, it has to be noted that the District Education Officer, Saharsa has categorically stated and asserted not only before the District Compassionate Appointment Committee but also before this Court that there was no vacant post of any other Class- III post, namely, the post Clerk etc. in the field offices of Education Department. The absence of vacancy by itself can be a good ground for rejection of claim for compassionate appointment and in that view of the matter, if the District Compassionate appointment Committee had also revised its opinion and recommendation taken on 7.7.1997 by sending its revised recommendation on 7 22.7.2005 for appointment of the petitioner against Class-IV post, this Court would find no error in any such approach inasmuch as, at least the Government and its authorities had secured a base for sustenance of the dependent of the family member of the deceased employee dying in harness. The whole object of the compassionate Appointment is not to give an alternative employment but only to provide some sort of sustenance to the dependent family members of the deceased employee. It is this aspect of the matter which has been considered by the Apex Court in the case of State of Rajasthan Vs. Umrao Singh reported in (1994) 6 SCC 560 wherein the concept of “Endless Compassion” has been deprecated and it has been laid down that once a person is appointed against a lower post, there would be no question to again consider the appointment of such person against a higher post inasmuch as such claim will stand extinguished once one of the post is offered and accepted. That being so, once the petitioner has already been appointed on a Class-IV post and has been working on such post from 16.12.2005, this Court would find 8 no reason to issue any direction for either of the relief prayed in these two writ applications. At this stage, Mr. Mukund would submit that at least the case of the petitioner for promotion/appointment against Class-III post on regular basis may be considered alike all others working Class-IV employees. In the considered opinion of this Court, once the petitioner has already been taken in as a Class-IV employee, she would definitely be entitled for consideration of her case as and when her turn will come for being considered against a Class-III post. That being so both of these writ applications are wholly misconceived and are, accordingly, dismissed. Rsh (Mihir Kumar Jha, J.)