IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11080 of 2008 Dinesh Kumar, son of late Shankar Manjhi, resident of Village Haribhitta, P.O. & P.S. Dighalbank, via Bahadurganj, Distt. Kishanganj at present resident of C/o Sunil Kant Singh, (Munmum), Line Mohalla Near Church, P.O. and P.S. Kishanganj, Distt. Kishanganj. ------- Petitioner Versus 1. The State of Bihar. 2. The Principal Secretary, Human Resources Development Department, Govt. of Bihar, Patna. 3. The Director, Secondary Education, Govt. of Bihar, Patna. 4. The District Magistrate, Purnea. 5. The Regional Deputy Director of Education, Purnea. 6. The District Superintendent of Education, Kishanganj. 7. The District Education Officer, Purnea. -------- Respondents ----------- 2 4.5.2011 Heard Mr. Sitesh Chandra Mitra, learned counsel for the petitioner and counsel for the State. In this writ application, the petitioner has made the following prayer:- “1. That this writ petition has been preferred for and on behalf of the petitioner above-named for issuance of an appropriate writ, order or direction to the respondent authorities for allowing the petitioner to join his appointment as a Clerk in the office of the District Education Officer, Purnea in the pay scale of Rs. 3050-4590/- to which post he has been appointed by Office Order as contained in Memo no. 228, dated 6.2.2008, issued under the signature of the Regional Deputy Director of 2 Education (RDDE for short), Purnea Division. The appointment of the petitioner is on compassionate ground on the recommendation of the District Compassionate Committee, Purnea on the death of the father of the petitioner while in service as a Teacher.” Mr. Mitra, learned counsel for the petitioner, would submit that when the appointment of the petitioner was made on 6.2.2008 by the Regional Deputy Director of Education, Purnea Division, Purnea (in short R.D.D.E., Purnea) on the post of Clerk in the office of the District Education Officer, Purnea (in short D.E.O., Purnea), the disobedience on the part of the D.E.O., Purnea in not allowing the petitioner to join such post cannot be countenanced in law and, therefore, this Court should issue a writ in the nature of mandamus for acceptance of joining of the petitioner on the post on which he was appointed by the R.D.D.E., Purnea. Attractive the aforementioned submissions may be, but when it is pierced into, the cat would come out of the bag. The petitioner’s appointment on compassionate 3 ground was made in the year 2008 by the R.D.D.E., Purnea on a premise that the petitioner was nowhere employed, much less, in any Government service. The D.E.O., Purnea however found that the petitioner was already employed as a Nagar Shikshak in a Government Primary School, Kajla Mani, Kishanganj on the basis of his order of appointment dated 14.9.2007. He had also found that there was no vacancy on the post of Clerk in his office rather only a post of Head clerk was vacant. In such a situation, the D.E.O., Purnea did not choose to accept the joining of the petitioner and had referred the matter to the higher authority, namely, Director, Primary Education, who is the Head of the department. This Court is really amazed with the approach of the petitioner while filing this writ application on 28.7.2008, inasmuch as, he did not utter a word that the day on which he was given compassionate appointment by the R.D.D.E., Purnea, he had already stood employed by way of being a Nagar Shikshak in Government Primary School, Kajla Mani, Kishanganj. He also had not made a statement 4 that he was continuing in service till 12.2.2008 and had resigned from such service on the basis of the order of his appointment issued by the R.D.D.E., Purnea dated 6.2.2008 appointing him on the post of Clerk. This in the opinion of this Court, is definitely material suppression of fact, inasmuch as, if the petitioner was already appointed in any capacity in the Government service, that by itself had brought to an end his claim for appointment on compassionate ground. Mr. Mitra, however, would submit that since the others recommended by the District Compassionate Appointment Committee after the recommendation of the petitioner were appointed on the post of Clerk, the petitioner had a right to claim his appointment on compassionate ground on the post of Clerk and to that extent, the earlier employment on the post of Nagar Shikshak will not stand in the way of the petitioner in getting the post of Clerk. As noted above, first of all the plea of discrimination, having been not pleaded by the petitioner impleading those persons as 5 party to this writ application, this Court cannot go into the issue as to whether persons recommended after the petitioner were appointed on compassionate ground by the same appointing authority under the similar circumstances. Mr. Mitra would however fairly submit that at least those persons were not appointed as Nagar Shikshak earlier as was the case of the petitioner. In that view of the matter, the plea of discrimination also becomes very week and in any event, the issue, which has to be kept in mind, is the date of recommendation and the availability of vacancy. Here in this case, it has been found by the authority, the D.E.O., Purnea that there was no vacancy on the post of Clerk on which his appointment of the petitioner was made by the R.D.D.E., Purnea. Now it is well settled that if there be no vacancy on the post, there can be no appointment on compassionate ground. The submission of Mr. Mitra that there was a vacancy on the post of Head clerk and against that post, the petitioner could have been allowed to continue has to be only accepted 6 for its being rejected. The petitioner was not being appointed as a Head clerk and, therefore, it becomes clear that R.D.D.E., Purnea had made appointment of the petitioner against non-existent post even when where there was also no vacancy on the post of Clerk. The D.E.O., Purnea, therefore, was fully justified in refusing the acceptance of joining of the petitioner, inasmuch as his such appointment on a non-existent post was itself wholly illegal, which could confer no right to him. Mr. Mitra then would submit that the petitioner now is in a real dilemma, inasmuch as, he had resigned from his earlier service from the post of Nagar Shikshak by virtue of the subsequent appointment letter dated 6.2.2008 on the post of Clerk in the office of D.E.O., Purnea. Normally, the petitioner would have been disentitled to be reverted back to his post of Nagar Shikshak on account of his own misconduct of suppressing material information as with regard to earlier employment on the post of Nagar Shikshak on 7 the date of his appointment as a Clerk in the office of D.E.O., Purnea but, then, taking into account that the petitioner’s such appointment was made on compassionate ground and that he has to support the dependant family members of the deceased employee, this Court would direct the Executive Officer of Kisan Ganj, Municipality to take the petitioner back in service as a Nagar Shikshak and post him on any vacant post within his control and jurisdiction. The petitioner however will not be entitled for payment of any back wages for the period be had remained out of service but would get continuity of his past service as a Nagar Shikshak. With the aforementioned observations and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)