^ A" Is^ ^<®'i^&e? IN THE HIGH COURT OF JUDICATURE. AT BILASPUR fCHHATTISGARH) W.P.NO. 3&T3 /2004 fService Matter) y PETITIONEflK^ ~^^yy ^s^ ~. ^/^€^ A<? A--y ^ESPONDENTS ^^ '•\ Madhav das Shahu, aged about Blyears, S/o. Late Bisahu das , ViilageAllikhuta P.0. Sighola Teh.& Distt. Rajnandgaon (C.G.), VERSUS 1) State of Chhattisgarh, through the Principal Secretary Department of General Administration Mantralaya, D.K.S. Bhawan, Raipur (C.G.). 2) The Secretary, School Education Department Mantralaya, D.K.S.Bhawan, Raipur (C.G.) 3) District Education Officer, Raipur, District - Rajnandgaon (C.G.) 4) The Collector, District - Rajnandgaon (C.G.) 5) Chief Executive Officer, Janpad Panchayat, Dongargarh, Distt. Rajnandgaon (C.G.) (T PETITION UNDER ARTICLE 226 /227 OF 'CONSTITUtION OF INDIA. FOR ISSUNCE QF APPROPRIATE WRITS / ORDERSAND DIRECTION Particulars of the_Petituulan MR, ~ i HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition No. 31 75 of 2004 Writ Petition No. 2099 of 2004 Writ Petition No. 2164 of 2004 ‘Writ Petition No. 2732 of 2004 Writ Petition No. 3428 of 2004 Writ Petition No. 3849 of 2004 Writ Petition No. 3899 of 2004 Writ Petition No. 3902 of 2004 Writ Petition No. 4244 of 2004 Writ Petition N o. 1966 of 2004 Post for pronouncement of order on g .10.2010 Sd/- Pritinker Diwaker Judge HIGH COURT OF CHHATTISGARH AT BILASU (Hon. Mr. Justice Pritinker Diwaker) Writ Petition No. 3175 of 2004 Rekharam Nidhi and others PETITIONERS ‘VERSUS RESPONDENTS State of Ch hattisgarh and others rit Petitn No. 2099 of 2004 W io PT ETIIONERS Manish Tiwari and others VSUS ER RESPONDENTS State of Chhattisgarh and others Writ Petition No. 21 64 of 2004 Jitendra Kumar Sahu PR ETITIONE VERSUS State of Chhattisgarh and others RESPONDENTS Wr Petition No. 2732 of 2004 it Bh‘uwanehwar Patel and others PETITIONERS VERSUS State of Chhattisgarh and others RESPONDENTS Writ Petition No. 3428 of 2004 h 'Smt. Dhaneshwari Verma and oters K PETITIONERS VERSUS RESPONDENTS State of Chhattisgarh and others . 3849 of 2004 PETITIONER Madhav Das Sahu PR ‘ Writ Petition No é , -2_ VUS ERS State of Chhattisgarh and others IESPONDENT RS Writ Petition No. 3899 of 2004 Bala‘m‘ani Nayak VERSUS PETITIONER h State of Chhattisgarh and oters RESPONDENTS Writ Petition No. 3902 of 2004 PETITIR Bandish ‘Kumar Namp‘andey VERSUS State of Chhattisgarh and others RESPONDENTS Writ Petition No. 4244 of 2004 PETITIONE Tabarak Hussain and others VERSUS State of Chhattisgarh and others RESPODENTS N “ V: Writ Petition No. 1966 of 2004 PETITIONER Sanjay Raktate VS ERSU ate of Chhattisgarh an others St d Sh’ri Sandeep Dubey, counsel for the petitioners. Sh’ri Pravin Das, Dy. GA for the respondent‘s/State. WRIT PETITION UNDER ARTICLE 226 OF THE ONSTITUTION OF INDIA ONES RS w C O R D E R ( 8.10.2010) In all the aforesaid petitions the law point raised by the petitioners is that though they are entitled to be appointed as Assistant Teacher on compassionate ground, they have been illegally appointed as Shiksha Karmi Grade iii and therefore they have prayed for issuance of directions that they may be appointed as Assistant Teacher in place of Shiksha Karmi Grade iii. The other law point involved in all these cases is that having accepted the appointment as Shiksha Karmi on compassionate ground and worked on the said post for sufficient time, can they subsequently claim for their appointment on a superior post. Thus the point to be decided being common, all these petitions are disposed of by this common order. 2. Facts, in brief, of all the cases run thus: 3. In W.P. No. 3175/2004 there‘are total O4 petitioners namely Rekharam Nidhi, Dinesh Kumar Patel, Yashwant Kumar Shandilya and Jhumar Lal Kashyap. Father of petitioner No.1 namely late Shri Jhansketan Nidhi died on 22.3.1998 while working as head master of primary school, Nava Gaon, Raipur and after his death the petitioner No.1 was appointed as Shiksha Karmi Grade lll vide Annexure P-1. Father of Dinesh Kumar Patel - petitioner No.2 herein, namely late Shri Daitari Ram Patel who was working as head master in Primary School, Guruji Bhata, Raipur died on 16.1.1983 and after his death the petitioner No.2 was appointed as Shiksha Karmi Grade Ill on compassionate ground on 30.7.1999 vide Annexure P-1. Father of Yashwant Kumar Shandilya — petitioner No.3 herein, namely late Shri Dhaneshwar Singh Shandilya died on 28.8.1993 yvhile working as head master in Middle School Barbahali, District Raipur and after his death- the petitioner No.3 was appointed as Shiksha Karmi Grade lll on 6.7.1998 vide Annexure P-2. Father of Jhumar Lal Kashyap — petitioner No.4 herein, namely late Shri Dukhuram Kashyap died on l 1.2.1998 while working as head master in Primary School, Nawagaon, , ..q_ District Raipur and after his death the petitioner No. 4 was appointed as Shiksha Karmi Grade iii on 3.8.1998 vide Annexure P-3. 4. In W.P. No. 1966/2004 father of Sanjay Raktate — the petitioner herein, namely late Pancri Rao died on 19.11.1997 while working as Assistant Teacher in Primary School, Mathiya Nawagaon, District Kanker and after his death the petitioner was appointed as Assistant Teacher on 21.4.1998 vide Annexure P-1. However, on 23.5.1998 a fresh order was issued in favour of this petitioner along with other candidates and he was then appointed as Shiksha Karmi Grade Ill vide Annexure P-2. 5. ln W.P. No. 2099/2004 father of Manish Tiwari — the petitioner No.1 herein, namely late Ram Awadh Tiwari died on 26.6.1997 while working as Assistant Teacher in Primary School, Raipur and after his death the petitioner No.1 was appointed as Shiksha Karmi Grade iii on 29.6.1999 vide Annexure P-1. Father of Sudhir Singh Thakur — the petitioner No.2 herein, namely late Sagar Singh Thakur died on 24.3.1995 while working as Assistant TeaCher in Primary School, Raipur and after his death the petitioner No.2 was appointed as Shiksha Karmi Grade iii on 19.1 1 .1999 vide Annexure P-2. 6. In W.P. No. 2164/2004 father of Jitendra Kumar — the petitioner herein, namely late-Shri C.L. Sahu died on 18.9.1987 while working as Assistant Teacher in Primary School, Rani Gaon District Bilaspur and after his death the petitioner was appointed as Shiksha Karmi Grade lll on 7.1 .1999 vide Annexure P32. 7. In W.P. No. 2732/2004 father of Bhuvaneshwar Patel — the petitioner No.1 herein, namely late Shri Chain Ku‘mar Patel died on 1.3.1993 while working as Assistant Teacher in Primary School, Raigarh District and after his death the petitioner No.1 was appointed as Shiksha Karmi Grade iii on 23.12.1999 vide Annexure P-1. Father of Kunj Bihari Patel — the petitioner No.2 herein, namely late Shri T.R. , Patel died on 9.7.1999 while working as Head Master in Middle L School, Raigarh District and after his death the petitioner No.2 was l, ‘ _5“ appointed as Shiksha Karmi Grade Ill on 27.10.1999 vide Annexure P— 2. 8. In W.P. No. 3428/2004 father of Smt. Dhaneshwari — the petitioner No.1 herein, namely Iate lshwari Prasad Verma died on 18.4.1997 while working as Assistant Teacher in Primary School, Raipur District and after his death the petitioner No.1 was appointed as Shiksha Karmi Grade ill on 1.7.1998 vide Annexure P-1. Father of Laxmi Narayan Sahu — the petitioner No.2 herein, nameiy late M.L. Sahu died on 19.8.1998 while working as Assistant Teacher in Raipur District and after his death the petitioner No.2 was appointed as Shiksha Karmi Grade iii on 25.12.1999 vide annexure P-2. 9. In W.P. No. 3849/2004 father of Madhav Das Sahu — the petitioner herein, namely late Bishau Das Sahu died on 10.12.1998 while working as Head Master in Primary School, Tilai District Rajnandgaon and after his death the petitioner was appointed as Shiksha Karmi Grade iii on 9.11 .1999 vide annexure P-1. 10. In W.P. No. 3899/2004 father of Balamani Nayak -— the petitioner herein, namely late Badri Prasad Nayak died on 1.10.1998 while working as Assistant Teacher in Primary School, Basna District Mahasamund and after his death the petitioner was appointed as Shiksha Karmi Grade iii on 28.10.1999 vide Annexure P-1. 11. In W.P. No. 3902/2004 father of Bandish Kumar Nampandey — the petitioner herein, namely late Kalicharan Nampandey died on 2.6.1983 while Working as Assistant Teacher in‘Middle School, Ramtola District Rajnandgaon and after his death the petitioner was appointed as Shiksha Karmi Grade lll on 2-12.1999 vide Annexure P-1. 12. In W.P. No. 4244/2004 father of Tabarak Hussain — the petitioner No.1 herein, namely late Naimun Hussain died on 29.5.1998 while working as Head Master in Primary School, Patrapali, Block , Saraipali District Mahasamund and after his death the petitioner No.1 was appointed as Shiksha Karmi Grade lll on 12.12.1998 vide . ..6~ Annexure P 1 Father of Smt Rupa Choudhary the petitioner No 2 herem namely late Gopal Chandra Ravam died on 264 1995 whlle working as ASSIstant Teacher In Pnmary School Dlstnct Mahasamund and after hrs death the petrtroner No.2 was appornted as Shrksha Karmr Grade iii on 14.12.1998 vide Annexure P-1. 13. Undisputed facts are that subsequently all the petitioners were regularized as Shiksha Karmr Grade ill in the year 2002 2003 and 2004 and they are still working on the same post 4 5 years after their servrces the petitioners have fried these writ petitions before this Court claiming that they ought to have been appornted as Assrstant Teacher on compassronate ground and not as Shiksha Karmi Grade Iii Petitioners have raised the foilowrng pornts in their writ petitions. (A) As per the government policy dated 106 1994 there is no mention of the word as Shrksha Karmi and the compassronate apporntments can be given only as Patwari Heaith Worker Forest Guard Constabie Assistant Teacher etc and the petitioners have been appornted pursuant to this policy where there is no mention of the word Shiksha Karmi. (B) As per the policy dated 10.6.1994 there can be no imposition of ban. (C) While appomting the petitioners as Shiksha Karmi Grade lll some persons have been appomted as ASSistant Grade lll Vide order dated 27.10.1999 (Annexure P-5). (D) Post of Shiksha Karmi is not a State Cadre one but is the post of Panchayat Department under the control of Janpad and Jrla Panchayat. (E) Post of Assrstant Teacher is not a dying cadre as per the document of Annexure D 1 dated 26 5 2009 and Annexure D 2 dated 25.2.2006. (F) That in View of the judgment passed by this Coun in W.P. No. 1686/2004 the petitioners are entitled to be appointed as per the scheme prevailing at the relevant time. (G) That the petitioners accepted the appointment on the post of Shiksha Karmi under the impression that the same is a Government job because in some of the cases even the appointment orders have been issued by the Collector and District Education Officer. 14. Replying to the arguments of the counsel for the petitioner, counsel for the respondents/State submits that even if the word Shiksha Karmi has not been mentioned in the policy dated 10.6.1994, it cannot be construed that the petitioners cannot be appointed on the said post because after mentioning certain posts, word “etc." has been used and that includes the word Shiksha Karmi or any other post for that matter. He submits that word Shiksha Karmi came into existence in the year 1997 when the Shiksha Karmi (Recruitment & Conditions of Service) Rules 1997 were introduced and on 20.1 .1998 vide Annexure R-2 a decision was taken by the Government not to directly fillrup the posts on compassionate ground or by way of special appointment against the post of Assistant Teacher, Teacher or Lecturer by way of direct recruitment, general appointment or compassionate appointment or special appointment and therefore the petitioners should feel obliged that they were appointed as Shiksha Karmi at least‘and that their appointment was made much after the appointment made vide Annexure R-2. He submits that the appointment on compassionate ground cannot be claimed as a matter of right and the petitioners should feel contented and happy for getting the same though as back door entry. He submits that it is nowhereme‘ntqioned that the post of Assistant Teacher is a dying cadre post. Appointment of Assistant Teacher is made as per the existing policy and after having joined on ‘ the post of Shiksha Karmi and having been regularized on the said post the petitioners cannot make sudden claim for being appointed as Assistant Teacher. He submits that once the petitioners have accepted the terms of appointment, they are estopped from raising any such ‘ claim subsequently. He further submits that the petitions are hopelessly barred by limitation. According to the State counsel, though the appointment of Shiksha Karmi is made through Panchayat, ultimate control in the Panchayat Department is of the State Government and therefore, petitioners cannot say that they have not been offered the government job on compassionate ground and that they are entitled to be appointed as Assistant Teacher. He submits that Rule 6 of Shiksha Karmi (Recruitment & Conditions of Service) Rules 1997 provides for compassionate appointment by the State as Shiksha Karmi. Said Rule reads as under: “Compassionate Appointment:- notwithstanding anything contained in rule 5 the State Government may sanction such number of additional posts of Shiksha Karmis, as may be necessary to which Panchayat shall, on the recommendation of the Collector, make appointment of persons eligible for employment on compassionate ground under any rule or instructions issued by the Government for this purpose.” “g, Rule 4 of the Shiksha Karmi (Recruitment & Conditions of Service) Rules 1997 shows the overall control of State Government on the post of Shiksha Karmi. 15. Before embarking upon the analysis of the facts and features of the cases in hand as put forth by the counsel for the respective parties it would be apposite to have a glance of the aim and object behind the concept of compassionate appointment. The whole object of any compassionate appointment scheme is to give succor to the family to tide over the sudden financial crisis befallen the dependants on account of the untimely demise of its sole earning member. The appointment on compassionate ground is not a method of recruitment but it is a facility to rehabilitate the family in distF‘ess and provide a relief from destitution. in a matter of compassionate appointment there cannot be insistence for a particular post because the same cannot be. claimed as a matter of right. l l 16. As regards the argument advanced by counsel for the petitioners l that in the policy dated 10.6.1994 there is no mention of word “Shiksha l _9_‘ Karmi" and therefore the petitioners should not have been appointed as such but should have been appointed against the posts which are mentioned in the policy such as Patwari, H‘ealth Worker, Forest Guard, Constable, Assistant Teacher etc. is concerned, the Court finds no merit in it because when in the entire State the family members of the deceased have been appointed as Shiksha Karmi, it hardly makes any difference whether the word “Shiksha Karmi" is there in the policy or not. Concept of Shiksha Karmi came into existence after issuance of policy dated 10.6.1994 and admittedly when the petitioners were appointed on the said post, no direct appointments were being made on the post of Assistant Teacher. For all praCtical purposes it can be said that the post of Assistant Teacher was a dying cadre one and therefore the respondents were justified in appointing the petitioners as Shiksha Karmi. Moreover, in the policy dated 10.6.1994 after the word Assistant Teacher, word “etc." has been used and therefore it cannot be said that appointment of the petitioners as Shiksha Karmi was against any Rule. Petitioners cannot take any advantage of the fact that some of the persons have been appointed as Assistant Grade iii vide Annexure, P-5 whereas the petitioners were appointed as Shiksha Karmi. This Court finds no force in the argument that the post of Shiksha Karmi is not a State Cadre post but is the post of Panchayat Department under the control of Janpad and Jila Panchayat. As already stated, the very object of giving compassionate appointment is to give immediate help to the family members of the deceased employee and when throughout the State in stead of appointing Assistant Teachers, Shiksha Karmis are being appointed, it hardly makes any difference whether the post of Shiksha Karmi is in the Government set-up or in the set up of Panchayat department. Moreover, the Panchayat department is one of the departments of the State Government and it is the Government which sanctions the posts Jew of Shiksha Karmi, it is the Government which provides entire budget to ‘ 1 the Panchayat Department and thus it cannot be said that the Government has no control over the Janpad or Jila Panchayat. This l Court further finds no substance in the arguments of counsel for the ‘ petitioners that the post of Assistant Teacher is not a dying cadre in ”IO“ view of the document of Annexure D-1 dated 26.5.2009 and document of Annexure D-2 dated 25.2.2006. ln the cases in hand the question to be decided is not whether Assistant Teacher is a dying cadre post or not but the question to be decided is whether appointment of petitioners as Shiksha Karmi Iii on compassionate ground is justified or not or whether they should have been appointed as Assistant Teacher after accepting the post of Shiksha Karmi. This Court finds no force in the argument of the counsel for the petitioners that in W.P. No. 1686/2004, this Court has passed the order to appoint the petitioner of the said case as Assistant Teacher and therefore the same benefit shouid also be extended to the petitioners herein. ln fact, in the order dated 10.5.2004 this Court has not decided any legal issue but on concession of the Government, this Court has merely directed for consideration of the case of the said petitioner in accordance with the policy and the legal provisions. This Coun‘ further finds no force in the argument that‘the petitioners have accepted the post of Shiksha Karmi under the impression that the same is a government job because in some of the cases appointment orders. have been issued by the Collector and the District Education Officer. Admittedly, the petitioners have accepted their appointment orders with open eyes knowing full well about the nature of their appointment and therefore now it does not lie in their mouth to say that while accepting the appointment on the post of Shiksha Karmi they were under any wrong impression. ln the State of Madhya Pradesh word Shiksha Karmi came into existence in the year 1997 with the introduction of Shiksha Karmi (Recruitment & Conditions of Service) Rules 1997. In the year 1998 vide Annexure R—2 a decision was taken by the Government not to directly fill up the‘post on compassionate ground or special appointment against the post of Assistant Teacher, Teacher or Lecturer by way of direct recruitment, general appointment or compassionate appointment or special appointment and therefore this Court does not find any illegality in the action of the respondents by appointing the petitioners as Shiksha Karmi. In this country thousands of educated unemployed persons are there who are not getting the job on any post due to tough competition and therefore the petitioners should feel obliged that at least they have ’ i l ‘ l i H (’I been appointed on the post of Shikeha Karmi. It is a settled position of law that compassionate appointment cannot be claimed as a matter of right. 17. In the present cases all the petitioners were appointed as Shiksha ‘Karmi in the year 199.8 and 1999, their services were later regularized and for about four years all of them kept quiet and were happy while working as Shiksha Karmi but all of a sudden in the year 2004 they have filed the present petitions saying that they should have been appointed as Assistant Teacher and not Shiksha Karmi. The petitioners have not even bothered to explain this inordinate delay in tiling the petitions and have merely stated therein that there is no delay in tiling the petitions. The present petitions are liable to be dismissed on the ground of unexplained delay and laches also; Furthermore, from the facts and circumstances of the case, it is apparent that the petitioners have exhausted the right of compassionate appointment and now they cannot say that they should have been appointed on the superior post and not as Shiksha Karmi. ln the matter of State ‘of Raisthan v. Umrao gngh reported in t_1_994) 6 SCC 560 it has been held by the Apex Court as under: 8. Admittedly the respondent’s father died in harness while working as Sub-Inspector, CtD (Special Branch) on 16—3-1988. The respondent filed an application on 8-4-1988 for his appointment on compassionate ground as Sub-Inspector or LDC according to the availability of vacancy. On a consideration of his plea, he was appointed to the post of LDC by order dated 14.12.1989. He accepted the appointment as LDC. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would even arise. Otherwise, it would be a case of “endless compassio‘n’s Eligibility to be appointed as Sub-Inspector of Police is one thing, the process of selection is yet another thing. Merely because of the so-called eligibility, the learned Single Judge of the High Court was persuaded to the view that direction be issued under proviso to Rule 5 of Rules which has no application to the facts of this case. 9. Since both the sides relied on Naresh Kumar Bali’s case, we will now refer to the same. We had * l2~ indicated our mind in that very ruling in paragraph 15 of the said judgment. It reads as under: “Though the respondent claimed that he had applied for the post of a teacher the Subordinate Service Selection Board had not chosen him for the post of teacher because he did not have the requisite qualification. ln fact, the respondent did not object to his appointment as a clerk and his claim for consideration for the post of teacher was one year after his appointment. Thus, the appointment on compassionate ground as per the scheme had been completed.” Therefore, one the right has consummated as we indicated earer, any further or second consideration for a higher post on the ground of compassion would not arise. 18. Almost similar view has been taken by the Apex Court in the matter of State of Har_yana v. Naresh Kumar Bali reported in (1994) 4 SCC 448. ln the matter of LG. (Karmik) and others v. Prahlad Mani Tripathi reported in £2007) SCC 162 it has been held by the Apex Court as under: 6. An employee of a State enjoys a status. Recruitment of employees of the State is governed by the rules framed under a statute or the proviso appended to Article 309 of the Constitution of lndia. In the matter of appointment, the State is obligated to give effect to the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of lndia. All appointments, therefore, must conform to the said constitutional scheme. This Court, however, while laying emphasis on the said proposition carved out an exception in favour of the children or other relatives of the officer who dies or who becomes incapacitated while rendering services in the Police Department. 7. Public employment is considered to be a wealth. It in terms of the constitutional scheme cannot be given on descent. When such an exceptionVhas been carved out by this Court, the same mustbe strictly complied with. Appointment on compassionate ground is given only for meeting the immediate hardship which is faced by the family by reason of the death of the bread earner. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion. li ¢ ‘3”