IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15183 of 2005 BHAWESH KUMAR VERMA Versus THE STATE OF BIHAR & ORS ----------- 3. 05.09.2008 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner seeks quashing of the order contained in memo no. 1101 dated 5.7.2004 (Annexure-13) and further to direct the respondents to give effect to the order contained in memo no. 502 dated 26.4.2000 (Annexure-4) passed by respondent no. 4 appointing the petitioner on the post of Assistant (third grade cadre) in the scale of Rs. 4000-6000/- and to pay the consequential current as well as arrears of salary in the said scale since 27.4.2000. The relevant facts of this case are that upon the death of the petitioner’s father in harness on 6.4.1981 while in Government service, the petitioner applied for compassionate appointment on 15.9.1981. The petitioner’s date of birth is 2.1.1958. On one occasion while considering his application for compassionate appointment, the District Compassionate Committee rejected his case on the ground that on the date of consideration i.e. 11.6.1996, the petitioner was above 35 years of age but subsequently, on the basis of the representation of the petitioner to grant him the benefit of relaxation of age, the matter was reconsidered by the District Compassionate Committee and on its recommendation by the aforesaid order dated 26.4.2000 (Annexure-4) the petitioner was appointed on the post of Assistant in the scale of Rs. 4000-6000/-. The petitioner gave his - 2 - joining on the very next date i.e. on 27.4.2000 and in support of the same he has filed not only his joining letter but also certain internal memos of the Collectorate to show that work was being taken from him. However, the stand of the State respondents is that the joining of the petitioner was never accepted and subsequently by order dated 27.8.2001 the Collector, Purnea on the basis of the instructions received from the Personnel and Administrative Reforms Department, vide its letter dated 9.7.2001, cancelled the appointment of the petitioner made by letter dated 26.4.2000. It was pointed out in the said letter that the same shall be considered after obtaining approval of the Commissioner, Purnea Division regarding age relaxation but since the matter remained pending the petitioner approached this Court by filing CWJC No. 2364/2003 which was disposed of by order dated 22.7.2003 with a direction to the Deputy Secretary, Personnel and Administrative Reforms Department that if he finds that the matter can be disposed of at Commissioner’s level then he shall remit the matter to the Commissioner with a direction to pass final order regarding the age relaxation of the petitioner within 15 days. Subsequently, the matter has been considered and by order dated 5.1.2004 of the Commissioner, Purnea Division the age relaxation was granted and thereafter by the impugned order dated 5.7.2004 the petitioner has been appointed on the post of Lower Division Clerk in the pay scale of Rs. 3050-4590/-. Learned counsel for the petitioner submits that the earlier appointment having been given to the petitioner in the pay - 3 - scale of Rs. 4000-6000, it was not open to the authorities to have granted him fresh appointment in a lower pay scale of Rs.3050-4590/- .It is submitted that for the default of the respondent-authorities, the petitioner cannot be made to suffer and thus they should be directed to appoint him in the higher post of Upper Division Clerk in the pay scale of Rs. 4000-6000/- as had been granted earlier with all consequential benefits from the original date of appointment, i.e., 26.4.2000. The stand of the State-respondents, on the other hand, is that the appointment of the petitioner by the order dated 26.4.2000 was illegal and void and it was beyond the competence of the District Magistrate who had appointed the petitioner, who was overage, on the date of appointment and thus did not fulfill the requisite qualification for such appointment. It is further submitted that the said appointment of the petitioner by order dated 26.4.2000 was cancelled by the subsequent order dated 27.8.2001 and the said order of cancellation has not been quashed or set aside by this Court by its order dated 22.7.2003 passed in CWJC No. 2364/2003. Hence, the cancellation of appointment of the petitioner stands and the present appointment after grant of age relaxation by the Commissioner, Purnea Division can only be in accordance with the rules of the Government prevailing at the time of such appointment. In this regard it is pointed out that by the decision of the State Government dated 20.12.2000 the earlier unified cadre of Class-III post had been demerged into that of Lower Division Clerk and Upper Division Clerk and any initial appointment - 4 - after 20.11.2000 can be made on the post of Lower Division Clerk alone and the other post of Upper Division Clerk is a promotional post. In the said circumstances, the authorities have acted in accordance with law in appointing the petitioner in the basic post of Class III cadre. The stand has also been taken that the joining of the petitioner was never accepted by the Establishment Section of the Collectorate and thus the petitioner cannot be granted any benefit on the basis of so-called joining letter submitted by him. On a consideration of the facts and circumstances of the case, although the misfortune of the petitioner has come about on account of inaction of the State-respondents yet, the fact remains that the earlier appointment of the petitioner by the Collector was void for the reason that the petitioner was not at all qualified on the said date for being appointed to the post since he was over age unless and until the said age was relaxed by the order of the competent authority, in the present case, the Commissioner of the Division. For the said reasons, this Court in the earlier round of litigation did not set aside the order dated 27.8.2001 cancelling the said appointment. Hence, the cancellation of the earlier appointment of the petitioner stands and he cannot be permitted to reagitate the said issue in the present writ application. In view of the aforesaid legal position, the appointment of the petitioner after relaxation having been granted by the Commissioner, Purnea Division could only be made in accordance with the Rules of the State Government relating to appointment - 5 - prevailing on the date of said appointment. Hence, the authorities had rightly appointed the petitioner to the basic post of Lower Division Clerk in the pay scale of Rs. 3050-4590. This Court does not find any illegality in the said order of appointment although it has occurred on account of inaction on the part of respondent-authorities. So far as the claim of the petitioner to payment for the earlier period is concerned, this Court is of the view that if work was actually taken from the petitioner during the period which he claims, then he would be entitled to be compensated for the said work and the authorities are accordingly directed to look into the matter and if it is found that the petitioner had actually worked from 27.4.2000 to 27.8.2001 then the authorities should compensate the petitioner for the said duties actually performed by him. The writ application is accordingly partly allowed. S.Pandey (Ramesh Kumar Datta, J.)