IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14975 of 2007 Anil Kumar Singh, son of late Dhaneshwar Sinha, resident of village Hichan Bigha, P.O. Hichan Bigha, P.S. Daudnagar, District Aurangabad (Bihar), at present posted as Peon in Uchya Vidayalaya, Haspura, Daudnagar, Aurangabad (Bihar) … Petitioner Versus 1. The State Of Bihar through the Secretary, Personnel & Administrative Reforms Department, Govt. of Bihar, Patna 2. The Secretary, Human Resources Development Department, Govt. of Bihar, Patna 3. The Director Primary Education, Bihar, Patna 4. The District Magistrate cum Chairman, District Label Compassionate Appointment Committee, Aurangabad, Bihar 5. The Regional Deputy Director of Education, Magadh Division, Gaya 6. The District Education Officer, Aurangabad (Bihar) … Respondents ---------------------------------- 5. 22.12.2011 Heard counsel for the parties. The petitioner in this writ application has prayed for the following relief: “That this writ application is being filed for issuance of writ of mandamus/ direction specially against the respondent no.4 to reconsider and recommend the name of the petitioner for appointment on IIIrd grade post, as the petitioner has already passed the Intermediate Examination in the year 1994, i.e. much prior to the recommendation made on 29.12.2003, in the meeting of District Compassionate Appointment Committee headed by the District Magistrate, Aurangabad Bihar (respondent no.4) for appointment on the 4th grade post, ignoring the educational qualification of the petitioner, further prayer of the petitioner is for appointment on IIIrd grade post after amending the memo no. 800 dated 8.6.2004 issued by the District Education Officer, Aurangabad (Bihar) whereby the appointment of the petitioner was made on 4th grade post arbitrarily, discriminately 2 and by applying pick and choose method.” Learned counsel for the petitioner has submitted that even though the petitioner was qualified for being appointed on a Class III post, the District Compassionate Appointment Committee had wrongly recommended him for being appointed on a Class IV post and as such, the petitioner would be entitled for reconsideration of his appointment on compassionate ground against a Class III post. In this regard he has also alleged discrimination among the same set of person by citing example of Sanyukta Kumari, Dhananjay Kumar, Santosh Kumar, Amrendra Kumar Tripathy and Yogendra Choudhary. In this case a counter affidavit has been filed wherein it has been explained that when the father of the petitioner had died on 29.9.2001 in harness the petitioner’s application was duly forwarded to the District Compassionate Appointment Committee and the Committee had recommended for appointment of the petitioner against Class IV post whereafter the petitioner was appointed on 18.6.2004. Pursuant thereto the petitioner had submitted his joining report on the post of Peon in Haspura High School, Haspura in the District of Aurangabad on 30.6.2004. The respondents have claimed that after the petitioner was appointed and he had joined without any demur or protest against Class IV post and as such there would be no question of reconsideration of his case for appointment against any higher post. In this regard it has been also explained in the counter affidavit that when the petitioner had re-agitated his issue regarding his appointment 3 against Class III post the matter was once again placed before the District Compassionate Appointment Committee which in the meeting held on 5.12.2006 had rejected the case of the petitioner for being recommended for appointment against Class III post. As with regard to discrimination the respondents in the counter affidavit have specifically asserted that after coming into force the Bihar Primary Teachers (Appointment and Service Condition) Rules, 2006 the power of compassionate appointment on the post of teacher no longer continues with the district authorities and the power has been vested in the Panchayat and as such, after 1.7.2006 no appointment has been made by the district authorities on the post of teacher by way of compassionate appointment and that the instances cited by the petitioner prior to coming into force of 2006 Rules would no longer be cases of similarly situated persons. In the considered opinion of this Court the very purpose of compassionate appointment was achieved by appointing the petitioner on the post of Peon in the year 2004. There is no Rule and/or guarantee that if the deceased employee was working in an office and would die in harness, his dependent must be appointed on a Class III post. The appointment on compassionate ground has to be made for supporting the dependents of the family members and therefore, such appointment has to be made on whatever vacancies are available. In the case of the petitioner as his father was working in Education Department, such post had to be found out in the local district offices and therefore, if the post of Peon was vacant in High 4 School, the appointment of the petitioner made against such post of Peon cannot be held to be bad. Merely because the petitioner was Intermediate will not give him a right to claim appointment on the post of teacher, inasmuch as for the post of teacher the pre- requisite condition is completion of teachers training course. The circular dated 5.10.1991 in no uncertain terms lays down that the appointment on compassionate ground will be made only of such persons who must have requisite qualification for the post. Therefore, the case of the petitioner for being appointed on a Class III post of teacher is wholly misconceived both on fact and in law. Counsel for the petitioner in fact has dwelt upon the aspect of discrimination by relying on the example of Sanyukta Kumari. In the case of Sanyukta Kumari it is true that the recommendation was initially made by the District Compassionate Appointment Committee against a Class IV post but before she could be appointed against such Class IV post she had moved this Court and this Court had directed the District Compassionate Appointment Committee to reconsider her case whereafter the revised recommendation was made for her appointment against Class III post and eventually she was appointed on Class III post. It was not the case of Sanyukta Kumari that she had already been appointed against Class IV post and thereafter she had been shifted to a Class III post. As with regard to the case of Dhananjay Kumar, Santosh Kumar, Amrendra Kumar Tripathy and yogendra Choudhary there is no document on record to show that they were initially recommended on Class IV post and they had also been 5 appointed as against such Class IV post. A plea of discrimination whenever sought to be raised in the writ application has to be supported by the documents. Way back in the case of Bharat Singh & ors. vs. State of Haryana & ors., reported in AIR 1988 S.C. 2181, the Apex Court had made the issue of onus in proof of a fact very clear in the following terms: “13. As has been already noticed although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitioners or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is obtensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter affidavit. While in a pleading, that is a plaint or a written statement, the facts and not evidence are 6 required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable....." (underlining for emphasis) Thus in absence of any document of similarity of the cases of Dhananjay Kumar, Santosh Kumar, Amrendra Kumar Tripathy and yogendra Choudhary this Court would not find any merit in the plea of discrimination. The issue of compassionate appointment and the offer being accepted by the petitioner unconditionally by way of submission of his joining report on 30.6.2004 pursuant to his order of appointment dated 18.6.2004 had automatically stood closed and the petitioner had no right thereafter to claim further appointment on a Class III post. It is this aspect of the matter which has been also explained by the Apex Court in the case of State of Rajasthan Vs. Umrao Singh reported in (1994) 6 SCC 560, wherein it has been held that there would be no endless compassion and once a person offered compassionate ground would accept such appointment his claim would automatically stand extinguished. Considering all these aspects this Court does not find any merit in this application and the same is, accordingly, dismissed. (Mihir Kumar Jha,J.) Surendra/