IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10134 of 2003 1. Bipin Kumar Sinha, Son of late Raj Narayan Sinha, Resident of Arya Kumar Road, Machua Toli, P.S. Kadam Kuan, District and Town Patna. 2. Baban Pathak, Son of Sudeshwar Pathak, Resident of Shekphpura, P.S. Nawatpur, District Patna. 3. Ajay Kumar Singh, Son of Late Zamadar Singh, Resident of Makhdumpur, District Jehanabad. 4. Krishna Deo Singh, Son of Sri Ramdeo Singh, Resident of Madarpur, Biju Bigha, P.S. Mufasil, District Gaya. 5. Prashant Kumar Sinha, Son of late Hirdayanarayan Sinha, Resident of Mohalla Mahendru, Near Tal Bandi Electric Works, P.S. Pirbahore Town & District Patna. 6. Pramod Kumar Verma, Son of Sri Harish Chandra Prasad, Resident of Rajendra Nagar, Motihari, P.S. Chitauni, District East Champaran. 7. Pramod Kumar Singh, Son of late Ram Narayan Singh, Resident of Chatar, P.S. Barahara, District Bhojpur. 8. Subodh Kumar, Son of late Shiv Chandra Prasad Verma, Resident of Village Mirzapur, P.S. Patahi, District Motihari. 9. Aditya Kumar Verma, Son of late Vishundeo Prasad, Resident of Jamalabad, P.S. Ahiyapur, District Muzaffarpur. 10. Phani Shankar Singh, Son of late Sadanand Singh, Resident of Village Barahara, P.S. Haveli Kharagpur, District Munger. ---------- Petitioners Versus 1. The State of Bihar through the Secretary, Department of Energy, Government of Bihar, Sichai Bhawan, Old Secretariat Campus, Patna. 2. The Electrical Chief Engineer, Department of Energy, Government of Bihar, Sichai Bhawan, Patna. 3. The Electrical Superintending Engineer, Electric Work Division, Patna. 4. The Electrical Executive Engineer, Electric Work Circle, Patna. 5. Sri Sudhir Prasad Sinha, Son of not known, at present posted as Correspondence Clerk, Electric Works Division, Patna. 6. Sir Uma Shankar Pandey, Son of not known, at present posted as Accounts Clerk, Electric Works Division, Patna. 7. Sri Ganesh Prasad Singh, Son of not known, at present posted as Correspondence Clerk, Electric Work Division, Patna. 8. Sri Dhaneshwar Prasad Singh, Son of late Basudeo Mahto, at present posted as Work Sarkar, at Electric Work Section Sabour under Electric Work Division, Bhagalpur. 9. Sri Sajjan Patel, Son of late Radhe Mahto, posted as Correspondence Clerk at Electrical Inspectoriat Office South Baily Road, Patna. ------- Respondents 2 ----------- For the Petitioners :- Shankar Dayal Singh, Adv. For the State :- Mahesh Prasad, S.C.8 with Meera Kumari, A.C. to S.C.8 For Private Respondent :- Mr. Bindhyachal Singh, Adv. Nos. 5 to 7 & 9 Mr. Nityanand Mishra, Adv. 4 12.1.2010 Heard counsel for the parties. The prayer of the petitioners in this writ application reads as follows:- “1. This writ application is directed against the office order no. 109 dated 16.10.90 as contained in Memo No. 3313 as also Office order no. 110 dated 19.10.90 as contained in 3937 dated 10.12.90 whereby and whereunder Class IV employees appointed on compassionate ground have been again reappointed on Class III post by the order of the respondent Electrical Chief Engineer illegally without adhering to the established principle of law. The said re-appointment is against the law formulated by this Hon’ble Court in C.W.J.C. No. 49/1991(R). This writ application is also being filed for commanding the respondents authorities to fill up the available post of Class III employees strictly in accordance with the seniority of class IV employees prior to the cut off date i.e. the date when the procedure for filling up the class III employees has been changed. This writ application is also being filed for commanding the respondents authorities to revert back 3 the class IV employees a like to Respondent no.5 to 9 appointed on compassionate ground and has been re- appointed to Class III post illegally as per the ratio decided in the case of Chandra Shekhar Raut and others Versus The State of Bihar and others in CWJC No. 49/91(R) disposed of on 24.1.97. This writ application has also been filed for other reliefs as well. The petitioners though the senior class IV employees, denied the benefit of promotion on class III posts. However junior most class IV employees including the Respondent no.5 to 9 appointed on compassionate ground, got their re-appointment on class III post illegally, some of the petitioners moved this Hon’ble Court for their appointment on those class III post in CWJC No. 6341/90 which was finally disposed of vide order dated 4.12.91, commanding the respondents authorities to evolve rational principle for such appointment in order to avoid discrimination. Further the respondents authorities were directed to consider the case of the petitioners were directed to consider the case of the petitioners in the event juniors have been promoted. Inspite of the petitioner’s best efforts, neither the petitioners were promoted/appointed nor the compassionate class IV Junior employees were reverted back to their original post to create vacancy, though the employees Union took its successive 4 efforts for implementation of the direction of this Hon’ble Court passed in C.W.J.C. No. 49/1991.” Learned counsel for the petitioners has submitted that the petitioners as also the private respondents were working as Mazdoor in the Electricity Department and all of a sudden, the private respondents whose date of engagement/appointment as a Mazdoor is later than that of the petitioners were appointed afresh on Class III post on the ground that since they had possessed the qualification of Class-III post and were initially appointed on Class IV post on compassionate ground, it was decided to upgrade their appointment by way of fresh appointment on Class-III post. The petitioners, therefore, in all fairness have assailed the decision of the Chief Engineer in appointing these respondent nos. 5 to 9 on Class III post and to that extent, they rely on the judgment of the Apex Court as also of this Court that once the power of appointment on compassionate ground is exercised in favor of a person, no further compassion can be shown in the matter of their appointment on a higher post. 5 Counsel in this context has relied on the judgment in the case of State of Rajasthan Vs. Umrao Singh reported in 1994(6) SCC 560 and the Division Bench judgment of this Court in the case of Chandrashekhar Raut & Ors. Vs. The State of Bihar & Ors. in CWJC No. 49/91(R) disposed of on 24.1.1997 (Annexure-6). Counsel for the State has taken a plea that since the case of the respondent nos. 5 to 9 was similar to the writ petitioners of CWJC No. 3810 of 1989 Mahendra Prasad Sharma and others Vs. State of Bihar and others disposed of on 14.12.1989 (Annexure-B to the State’s counter affidavit), the Chief Engineer had decided to also extend benefit of the same direction of the case of Mahendra Prasad Sharma (supra) even in respect of Respondent no. 5 to 9. Counsel for the State in this context has also placed reliance on the latest instruction received by him from the office of the Chief Electrical Engineer in his letter no. 64 dated 11.1.2010, wherein, it has been stated that the petitioners are working as Mazdoor for extending help to Wireman and they have no right of being considered and/or 6 promoted on the post of Correspondence/Account Clerk on which the private respondents were appointed by way of their second compassionate appointment. Mr. Bindhyachal Singh, learned counsel appearing on behalf of the respondent nos. 5 to 7 and 9 on the other while adopting the submissions of learned counsel for the State has submitted that the writ petition filed after thirteen years of the notification appointing the private respondents on Class- III post is not maintainable. He has further submitted that the petitioners have no locus- standi to assail the appointment of the private respondents, inasmuch as, the petitioners cannot be appointed on the post of Correspondence Clerk/Accounts Clerk and for them the next higher post would be in the post of Wireman which has a separate cadre. As with regard to judgment of the Apex Court in the case of State of Rajasthan (supra) and of this Court in the case of Chandra Shekhar Raut (supra), it has been submitted that these are subsequent judgments, which would not vitiate/affect the earlier appointment of the 7 private respondents, inasmuch as, when the private respondents were appointed on Class- III post by way of their second compassionate appointment, there was no specific bar for such appointment and in fact, a bar to this extent only came in the year 1991 by a Circular of the State Government dated 5.10.1991. Mr. Singh, therefore, proceeded to make submission that the case of the petitioners stands on identical footing as that of Mahendra Prasad Sharma and others the petitioners of CWJC No. 3810 of 1989 in whose case this Court by an order dated 14.12.1989 had directed for their appointment on Class- III post and on the basis of the said order, it was contended that if the official respondents had not given second compassionate appointment to the respondent nos. 5 to 9, that by itself could have created a situation of an unequal treatment amongst the similarly situated persons. Mr. Singh, in fact, has also gone to submit that the order of this Court dated 14.12.1989, though confined to the fact of those particular case, should be treated to be a judgment in-rem and had finally concluded 8 his submissions that now when the Respondent no. 5 to 9 have continued in service for a long period, almost two decades as a Class-III employees and therefore, following the ratio of the judgment of this Court in the case of Shanta Bendit Subiru Baria @ Shanta Barla Vs. State of Bihar & Ors. reported in 2001(2)PLJR 583 and in the case of Akhilesh Kumar Sinha & Ors. Vs. State of Bihar & Ors. reported in 2002(1)PLJR 391, the appointment of the Respondent 5 to9 on Class-III post should not be disturbed. Learned counsel for the petitioners in reply would submit that it is the misconceived notion of the respondents that the petitioners had sat idle for thirteen years and in fact, they had repeatedly moved this Court for getting the similar treatment and in fact, even before the impugned notification dated 16.10.1990 and 19.10.1990 were issued in favour of the private respondents, they had moved this Court in CWJC No. 6341 of 1990 for a direction to the effect that as and when Class-III post was to be filled up, the case of the petitioners should also be considered. In the opinion of this Court, there is considerable force in the submission of 9 learned counsel for the petitioners inasmuch as, it is well settled that appointment on compassionate ground is to be strictly governed by the scheme and policy framed by the Government and it cannot be a regular appointment, muchless, direct recruitment on a post which has to be filled up in terms of the rules framed under proviso to Article 309 of the Constitution of India or the circulars of the State Government for such appointment. The submission of the learned counsel for the respondents that compassionate appointment can be made de-hors such rules and circular and that as and when the higher posts would become vacant, a person even appointed on compassionate ground on a lower post can be appointed afresh on a higher post would infact would create a situation where compassion would become a substitute of a substantive right. The concept of compassionate appointment is only to mitigate the immediate hardship on account of the death of the bread earner, the employee, dying in harness. In the present case, the private respondents 5 to 9 on the ground of death of the concerned 10 government servant were already appointed as Class-IV employees on 17.11.1980 vide Annexure C/1 in the case of respondent no.5 & 9, on 30.1.1981 in case of respondent no.6 and on 2.5.1986 in the case of respondent nos. 7 & 8. Such one time exercise of power, therefore, for appointment of Respondent 5 to 9 on Class- IV posts of Mazdoor on compassionate ground on the basis of existing circular of the State Government dated 14.7.1977 had automatically come to an end in respect of the aforesaid five respondents and therefore, if they have been again appointed in 1990 on Class-IV posts of clerks, on compassionate ground, this time by taking a plea that since they were having higher qualification, a question would arise as to whether the compassionate appointment are meant to provide immediate help to the family or to provide an avenue of permanent employment as per suitability of the candidate concerned. There was infact no difficulty for the private respondents to apply for the Class-III posts of Clerks and compete with the other candidates and get selected, but if their appointment on compassionate ground on 11 Class-III post after continuing in service for four to ten years on the Class-IV post have merely on the basis their possessing the requisite qualification for such Class-III post of Clerk, the same cannot be upheld only on account of its being in breach of the prescribed procedure meant for direct recruitment on Class-III posts. It is well settled that the regular vacancy on Class III posts of Clerks can only be filled up either by way of direct recruitment or by promotion of Class-IV employee and thus the petitioners definitely have a genuine grievance, that when were engaged on Class-IV posts of Mazdoor in the year 1976 onwards and were always waiting for the time when their fate could also smile for being given Class-III posts of Clerk, their cases was also required to be considered for their appointment by way of promotion on the higher posts of clerk. In the opinion of this Court when in terms of circular of the State Government dated 3.12.1980 all Class-III posts are to be filled by way of direct recruitment and the State Government has also laid down norms for 12 recruitment on 25% posts of vacant Class-III post by its another circular dated 11.2.1985 wherein all the similarly situated Class-IV employees having requisite qualification for Class-III post can be given opportunity by way of appearing and passing the limited departmental examination for appointment on such Class-III posts, the vacant Class-III posts of clerk could not have been filled up without following the provisions of the government circular dated 11.2.1985. Admittedly the private respondents were appointed from their Class-IV to Class-III posts without following the prescribed procedure. In such a situation, it would be very difficult for this Court to hold that the writ petitioners who were working Class-IV posts of Mazdoor even before the appointment of the private respondents 5 to 9 on Class-IV posts of Mazdoor have got no locus-standi to question the appointment and continuance of the private respondents on Class-III post. The petitioners as also the private respondents were holding the same Class-IV posts of Mazdoor and all of them being post of the same 13 cadre, if for some of them including the private respondents, the official respondents had carved out an exception only on the ground of compassion, the petitioners having being been denied for their appointment on Class-III posts definitely had a right to question the same and therefore, this writ application at the instance of the petitioners must be held to be maintainable. Learned counsel for the private respondents had also a gallant effort to defend the appointment of the private respondents by taking a plea that there was no specific bar in appointment on compassionate ground Class-III posts of such persons who had already been appointed earlier at a lower Class-IV post on compassionate ground. For this purpose counsel proceeds on an assumption that such a bar was introduced only in the subsequent Government Circular dated 5.10.1991. In the opinion of this Court, such submission lacks the basic insight of the scheme of compassionate appointment, which came to be introduced in the State of Bihar 14 way back in the year 1977. It was the concept of that 1977 Circular wherein it was said that any person claiming compassionate appointment must apply within two years of the death of the employee concerned. The concept of such appointment again was very clear and extendable only to the vacant post on the date of such appointment. In presence of the earlier Circular on the subject of compassionate appointment, it would be very difficult to hold that there was earlier any such Circular of the State Government which permitted the State Government to reappoint or give another appointment on compassionate ground to such persons who were already appointed on the compassionate ground. To that extent, the clarification issued in the year 1991 was only to clarify that appointment on compassionate ground was a one time exercise and would not be allowed to be re-opened on any ground whatsoever did not mean that earlier there was such a provision. The reading of 1991 Circular by the private respondents, therefore, is wholly misconceived and at least, that cannot save their 15 appointment on compassionate ground on Class- III posts. The plea of the private respondent nos. 5 to 9 that six similar persons were appointed on the strength of an order of this Court has to be also appreciated in the context that the order was passed on 14.12.1989 in CWJC No. 3810 of 1989. In the said order, it was noticed that petitioner nos. 2 to 7 of that case were given Class-IV post at a point of time when they had possessed the requisite qualifications for Class-III post and had accepted the appointment of Class-IV post under protest and when they made a representation after their appointment on Class-IV posts the concerned authority of the State Government had directed the Chief Engineer of the Energy Department to appoint the respondent nos. 2 to 7 on Class-III post. There was, therefore, no decision of this Court for their appointment rather having noted that the respondent themselves had taken a decision for appointment amongst the petitioners of CWJC No. 3810, this Court had merely reiterated the principles of law as it 16 was then existing on the basis of the judgment of the Apex Court in the case of Sushma Gosain & Ors. Vs. Union of India & Ors. reported in AIR 1989 SC 1976. That order therefore was exclusively confined to the petitioners of that writ application and in no view of the matter the benefit of the same could be extended to any other person both on account of the fact that the decision of the Government directing the Chief Engineer was confined to only six of them and this Court also had limited the direction only for them. Thus, at least on the basis of the order dated 14.12.1989, the private respondents 5 to 9 could not have claimed for appointment on Class-III post on compassionate ground. The concept of compassionate appointment having been introduced by the Government Circular/Policy dated 12.7.1977 and there being no provision in the Government Circular that even a person already appointed on compassionate ground could be appointed afresh again on compassionate ground on a higher post only because he/she possessed higher qualification, the appointment of the private 17 respondents on vacant Class-III posts in the year 1990 cannot be sustained in law because the official respondents have not followed the procedure meant for filling up such posts. There is no dispute that the posts on which private respondents were appointed i.e. Correspondence Clerk/Account Clerk, could be filled up only by way of direct recruitment and for direct recruitment, there has to be an opportunity to be extended to each and every eligible candidates. The fact that the petitioners were not allowed to be considered for such vacant Class-III posts sought to be filled up, by itself would negate and infringe the right of the petitioners under Article 14 & 16. There being no dispute that in the case of the private respondents 5 to 9 there was no direction by the State Government for also appointing them alike the petitioners of CWJC No. 3810 of 1989 (Mahindra Pd. Sharma & Ors. Vs. The State of Bihar & Ors.) and that the petitioners of this Court had in fact knocked the door of this Court even before the appointment of private respondent 5 to 9 by 18 filing CWJC No. 6341 of 1990, wherein, this Court had noted the grievance of the petitioners that although they were working as a labourers since 1976 and were working in different capacities earlier, their cases for promotion to grade III posts are not being considered, whereas persons junior to them are being considered for promotion to grade III posts, it cannot be said that the petitioners had slept over their rights. This Court, in fact, having noticed the aforementioned writ application that the petitioners were being subjected to some sort of discrimination by considering the case of others and by leaving them out had issued a direction that if any Grade IV employees junior to the petitioners was being considered for promotion to the Grade-III post, the official respondents also were under obligation to consider the case of the petitioners. Thus, the petitioner’s earlier writ application being CWJC No. 6341 of 1990 was filed when the private respondents were not appointed again on Class-III posts compassionate ground by the impugned orders and in that view of the matter, this Court 19 must hold that the petitioners have always remained cautious to their rights which also becomes evident from their second writ application being CWJC No. 6530 of 2003 which was disposed of on 19.8.2003 by observing that the petitioners could not claim any relief unless they had also challenged the specific appointment of the private respondents. Since, by this time, the official respondents had already appointed the private respondents 5 to 9 by way of second compassionate appointment, the present writ application filed by them cannot be held to be belated specially when this Court would find that the official respondents themselves of the Electricity Department had in fact implemented the judgment of this Court in CWJC No. 49/1991(R) disposed of on 24.1.1997 quashing similar appointment alike the private respondents who too were initially appointed on Class-IV post and were sought to be again appointed on Class-III post on compassionate ground. The official respondents, therefore, were always aware of the pendency of this matter and if the official respondents had cancelled the 20 appointment of Kaushal Prasad Sinha (Accounts Clerk), Mangalnath Barla (Correspondence Clerk), Mohan Prasad (Correspondence Clerk), Taj Mohammad (Correspondence Clerk), Pramod Kumar Singh (Store Keeper) and Ashwini Kumar Singh (Accountant) only on the ground that their second compassionate appointment was not sustainable in terms of the judgment of the Division Bench dated 24.1.1997 in CWJC No. 49/91(R), they in all fairness were also required to extend the ratio of the said judgment in the case of the private respondents. Therefore, only because discrimination was practiced by the official respondents for favouring the private respondents 5 to 9 the petitioner’s writ application at least cannot be thrown on account of delay specially when they as noted above had always remained cautious to their rights and had repeatedly moved this Court for protecting their interest. The last submission of the private respondents that they have continued for a long period and as such, their appointment should not be disturbed seems to be now 21 against a long line of cases either in the case of Secretary, State of Karnataka & Ors. Vs. Umadevi (3) & Ors. reported in 2006(4)SCC 1 or the subsequent judgment of the Apex Court in the case of Upendra Narayan Singh and others Vs. State of Bihar and others reported in 2009(5) S.C.C. 65 wherein this aspect of the matter has been gone at length. Moreover, private respondents are not to be thrown out of employment rather they all will only go back to the post on which their initial appointment on compassionate ground was made i.e. the post of Mazdoor (Class-IV) on which even the petitioners were appointed and are continuing. This Court would find