IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5006 of 2006 Raj Kumar, son of Late Ram Kumar Prasad, Resident of Bakerganj, Gola Road, Near Bhagwat Market (Electronic Market), P.S. Pirbahore, District-Patna …………. Petitioner Versus 1. The State of Bihar through Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna 2. The Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna 3. The Cabinet Vigilance Department through the Vigilance Commissioner, Government of Bihar, Patna 4. The Secretary, Cabinet Vigilance Department, Government of Bihar, Patna 5. Vigilance Investigation Bureau (NIGRANI ANVESHAN BUREAU) through its Additional Director General, under the Cabinet Vigilance Department, Government of Bihar, Patna 6. Director General cum Inspector General of Police, Bihar, Patna 7. Inspector General of Police (Administration), Bihar, Patna 8. Deputy Inspector General of Police (Administration), Bihar, Patna 9. Sri S.N.Ojha, son of name not known to the petitioner working as Deputy Secretary, Cabinet Vigilance Department, Government of Bihar, Patna ……………………. Respondents ----------- For the petitioner: M/S Keshav Srivastava, Sr. Advocate, Ashutosh Ranjan Pandey, Anshuman Ramanuj Tiwary and Umesh Pathak, Advocates For the State: M/S Sheojee Prasad, GP 2 and Shaishav Kumar, AC to GP 2. ----------- 8. 11.05.2009 The petitioner has come to this Court for quashing the order contained in memo no. 3913 dated 2.11.2005 (Annexure-7) by which the petitioner has been issued appointment letter for Class-IV post of Peon whereas he was recommended for appointment on Class- III post by the Central Compassionate Committee of the State Government. Earlier also the petitioner had approached this Court for compassionate appointment by filing CWJC No. 703/2005 which was disposed of by order dated 2.5.2005 with a direction to the Compassionate Committee to consider the case of the petitioner in the - 2 - light of the observations made in the order. Thereafter the case of the petitioner was taken up by the Central Compassionate Committee of the State Government at its meeting held on 25.7.2005 which, after considering all matters, recommended the case of the petitioner for appointment on Grade-C post in the pay scale of Rs. 3050-4590 with the rider that the Administrative Department shall satisfy itself that the petitioner is fit for appointment on Grade-C post in terms of the order dated 28.2.2001 passed by this Court in LPA No. 1209/2000 (State of Bihar Vs. Madhuri Kumari Sinha). Thereafter by letter dated 7.10.2005 (Annexure-6) the Cabinet (Vigilance) Department informed the petitioner to appear in the office of the Vigilance Commissioner on 30.10.2005 at 3.00 P.M. along with documents relating to his educational qualifications in original for the purpose of evidence. The petitioner appeared and it is alleged in the writ petition that he was asked to contact respondent no.9, the Deputy Secretary and when he met him he showed displeasure with the petitioner and humiliated him for having filed contempt petition against the Secretary of the Department as a result of which the petitioner became nervous for fear of losing the job. Thereafter the Deputy Secretary called two more persons in his office and the petitioner was asked to appear in examination immediately and a plain paper was supplied to him. The petitioner became very nervous and requested for deferring the examination on the ground that he had no knowledge that an examination would be given. It is further stated that he was asked certain questions of general knowledge which, he alleges, was done in - 3 - an intimidating manner and he was further directed to write two applications to the District Magistrate in twenty lines each and also to type certain extracts in English. He was further asked certain questions of mathematics which admittedly he correctly answered. Subsequently, by the impugned order dated 2.11.2005, the petitioner was informed that on the basis of the qualification and working ability and efficiency as examined by the Departmental Committee he was selected for Class-IV post of Peon. Aggrieved by the same, the petitioner filed a representation before the Vigilance Commissioner stating that he had been discriminated because he had earlier filed the contempt petition. Ultimately since nothing came out of his representation, he has approached this Court. Learned counsel for the petitioner submits that the reliance by the respondents on the case of Madhuri Kumari Sinha is totally uncalled for in the facts of the present case. It is submitted that the said decision was rendered in very different circumstances where the petitioner of that case, although recommended by the Compassionate Committee for appointment on Class III post, but on being subjected to a test of calculation and letter writing, she failed in both the matters, and it was held by this Court that the respondent- Madhuri Kumari Sinha was unable to write or make calculation and accordingly offered Class –IV post and the action of the authorities was not arbitrary. In the case of the petitioner, learned counsel refers to the papers of the petitioner which have been annexed to the supplementary counter affidavit from which it cannot be said that the - 4 - petitioner is unable to write or to make calculation. In fact, it is stated that it is admitted by the respondents that the petitioner has made calculations correctly. Learned counsel also submits that no reply has been given in the counter affidavit to the allegations made by the petitioner regarding the manner in which the test had been conducted when he was not even informed about the same and was merely required to produce the certificates in original for verification by the authorities. It is also stated that with respect to Vigilance Department itself at least five cases were pointed out by the petitioner where appointments had been made on Class III post without taking any test and the same has not been countered by the respondents except for taking the stand that the said appointments were made in the Vigilance (Investigation) Bureau and not directly in the Cabinet (Vigilance) Department. The factum of no test having been given in the said matters has not been denied. It is also submitted by learned counsel that even if suitability test is to be taken in the matter of compassionate appointment, the same must be done in accordance with guidelines which ought to be laid down by the State Government and preferably by the recommending authority itself, otherwise it can lead to a situation like the present where the appointing authority being aggrieved by the applicant for coming to the High Court and filing contempt petition or for other reasons could find ways to prevent the concerned dependents of the deceased employee from getting - 5 - appointed on a Class III post. Such action of the State authorities would, according to learned counsel, be violative of the principle of equality enshrined in Article 14 of the Constitution. It is further submitted by learned counsel that compassionate appointment can only be granted in accordance with the Rules, Circulars and Scheme of the State Government and not on the basis of any individual whims and fancies of the particular Department. It is pointed out that in paragraphs 3 and 4 of the concerned Circular No. 2822 dated 27.4.1995, it has been stated that with respect to the Secretariat and its attached offices the Central Compassionate Committee has to make the recommendation and the appointments are to be made by the concerned Departments in accordance with the recommendations made by the Central Compassionate Committee. It is submitted that the said circular which along with the Circular dated 5.10.1991 governs the scheme of compassionate appointment does not at all provide for any test being conducted by the appointing Departments separately. In support of the aforesaid proposition, learned counsel for the petitioner relies upon the decision of the Supreme Court in the case of State Bank of India & anr. Vs. Somvir Singh: (2007) 4 SCC 778, in para-10 of which it has been laid down as follows:- “There is no dispute whatsoever that the appellant Bank is required to consider the request for compassionate appointment only in accordance with the scheme framed by it and no discretion as such is left with any of the authorities to make compassionate appointment dehors the scheme. In our - 6 - considered opinion the claim for compassionate appointment and the right, if any, is traceable only to the scheme, executive instructions, rules, etc. framed by the employer in the matter of providing employment on compassionate grounds. There is no right of whatsoever nature to claim compassionate appointment on any ground other than the one, if any, conferred by the employer by way of scheme or instructions as the case may be.” Learned counsel for the State, on the other hand, relies upon the decision of the Division Bench of this Court in the case of Madhuri Kumari Sinha. He further relies upon the circular dated 29.7.2002 issued by the Personnel and Administrative Reforms Department in which reference has been made to the aforesaid decision of this Court in Madhuri Kumari Sinha’s case and copy of the same has been forwarded to the concerned Departments and officials of the State Government, on the basis of which it is submitted by learned counsel that the respondent-authorities were justified in conducting the test of the petitioner and holding him unfit for appointment on Class-III post. Learned counsel, in support of his stand, also relies upon a decision of this Court in the case of High Court of Judicature at Patna & anr. Vs. Amit Kumar & Anr.: 2009(1) PLJR 820, in para-8 of which it has been held as follows:- “From a plain reading of the aforesaid provision, it is evident that Hon’ble the Chief Justice of the High Court has been conferred with the discretion to appoint on compassionate ground any person against any Class-III post except that of an Assistant or above or Class-IV posts subject to the availability of the posts. Candidate seeking appointment on compassionate, ground must have the requisite qualification. In our opinion, the - 7 - qualification possessed by a candidate asking appointment on compassionate ground, is a relevant consideration but a candidate cannot claim appointment to a particular post on the basis of his qualification.” On a consideration of the rival submissions this Court is of the view that so far as the question of compassionate appointment is concerned the same has to be made in accordance with the Rules, circulars and executive instructions issued by the concerned employer, in the present matter, the State Government, in this regard. It is evident from the scheme of compassionate appointment as laid down in the Circular No. 13293 dated 5.10.1991 as amended by the Circular No. 2822 dated 27.4.1995 issued by the Personnel and Administrative Reforms Department, Government of Bihar which are the extant circulars in the matter of such appointments that with respect to deceased Government servant employed in the Secretariat and its attaches offices recommendation for compassionate appointment has to be made by Central Compassionate Committee headed by the Commissioner & Secretary, Personnel and Administrative Reforms Department. The Circular clearly provides that the appointing authority has to make the appointment in accordance with the recommendations made by the Central Compassionate Committee in such matters. It is true that in the case of Madhuri Kumari Sinha, the Division Bench of this Court by its order dated 28.2.2001 had held that the action of the appointing authority in offering Class IV post to the said respondent-petitioner was not arbitrary or in violation of the - 8 - well settled principles governing the appointment on compassionate ground after taking into consideration the efficiency and merit of the candidate concerned. In that case the respondent was found unable to write or make calculation and accordingly offered Class IV post. However, the said case appears to be an extreme case where a person recommended for appointment on class-III post was found unable to write or to make calculations; that is not the position in the present matter where this petitioner was admittedly able to perform arithmetical calculations correctly and also he had been able to write two letters in twenty lines each although there were some spelling mistakes in the said letters. The present matter cannot be placed on the same footing as that of Madhuri Kumari Sinha. Moreover, once it is accepted that mere recommendation on Class III post will not be sufficient but a further test is to be given by the appointing authority then guidelines in that regard have to be framed by the State Government so that various appointing authorities do not act in an arbitrary and whimsical manner so as to exclude any person they wish to exclude from getting appointment on Class III post on the basis of the so called test conducted by them. In the present matter, it is evident that apart from enclosing the decision of this Court in Madhuri Kumari Sinha’s case with the circular dated 29.7.2002 the State Government in the Personal and Administrative Reforms Department has not framed any further Rules or Circulars as to the subject matter of and the manner in which the test is to be conducted for arriving at a conclusion as to - 9 - whether the compassionate appointment is to be made on a Class-III post or not. The decision of this Court in the case of Madhuri Kumari Sinha was rendered on 28.2.2001 and yet no such step has been taken till date to prescribe uniform guidelines in the matter so as to bring the action of the authorities in such matters within the four corners of Article 14 of the Constitution which does not permit arbitrariness in executive action. In the present matter this Court finds that despite repeated opportunity granted to the respondents they were unable to meet the stand taken by the petitioner that as many as five appointments had been made in the Vigilance Investigation Bureau which is a field establishment attached to the Cabinet (Vigilance) Department without holding any test for appointment on Class-III post and the petitioner alone has been singled out for such a test without any prior notice and even in the said test he cannot be said to have woefully lacked to the extent as noticed by this Court in the case of Madhuri Kumari Sinha’s case. Moreover, if the State Government takes a decision to conduct a test for determining as to whether the appointment should be made on Class III post or not then the same test must be given uniformly to all candidates and in order to ensure that no discrimination is made such test must be conducted by or under the aegis of the Central Compassionate Committee or District Compassionate Committee and not be allowed to be conducted in a whimsical and arbitrary manner by the different appointing authorities concerned as they may deem fit so as to exclude certain persons for - 10 - reasons best known to them. Thus, on a consideration of the entire facts and circumstances of the case as also the legal provisions, in the present matter this Court is of the view that the impugned order dated 2.11.2005 being based upon an arbitrarily conducted test without laying down proper guidelines cannot be allowed to stand and the same is quashed. In view of the fact that the father of the petitioner had died on 19.3.2003, it is directed that the respondent authority shall appoint the petitioner on a Class III post in accordance with the recommendation of the Central Compassionate Committee within a period of two months from the date of receipt/production of a copy of this order. The writ application is accordingly allowed with the above observations and directions. S.Pandey (Ramesh Kumar Datta, J.)