IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.13561 OF 2007 =================================================== SUDARSHAN KUMAR CHAUDHARY, S/O SRI BISHUNDEO CHAUDHARY, R/O VILLAGE DUMARIA BAZAAR, P.S PARWATTA, DISTRICT KHAGARIA. .... .... PETITIONER/S VERSUS 1.THE STATE OF BIHAR. 2.THE COMMISSIONER CUM SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, BIHAR, PATNA. 3.THE DISTRICT COMPASSIONATE APPOINTMENT COMMITTEE, KHAGARIA, THROUGH ITS CHAIRMAN. 4.THE DISTRICT MAGISTRATE, KHAGARIA. 5.THE DISTRICT SUPERINTENDENT OF EDUCATION, KHAGARIA. .... .... Respondent/s =================================================== Appearance : For the Petitioner: Mr. Rajendra Prasad Singh, & Mr. Rajeev Kumar Singh For the Respondent: Mr. (Gp12) =================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 4/ 22-11-2011 Heard Mr. Rajendra Prasad Singh, learned senior counsel for the petitioner and learned counsel for the State. The prayer of the petitioner in this writ application reads as follows:- “That this is an application for issuance of appropriate writ(s), order(s), direction(s), directing the respondent authorities to act as per the recommendation made by the District Compassionate Appointment Committee, Khagaria in its meeting dated 16.1.06, so far it relates to petitioner. Further the respondents be directed to treat the petitioner’s appointment on Compassionate ground to the post of Class-III on compassionate Patna High Court CWJC No.13561 of 2007 (4) dt.22-11-2011 2 ground and give all the benefits of regular class-III Govt. employee.” Mr. Singh in support of aforementioned prayer has submitted that since the petitioner was recommended by the District Compassionate Appointment Committee for being appointed against class-III post in the office of District Superintendent of Education, Khagaria, his such appointment should have been made in the prescribed pay scale of a class-III employee. He has further submitted that the petitioner instead of being appointed on a class-III post in the prescribed pay scale in the office of District Superintendent of Education, Khagaria, has been appointed on the post of Prakhand Shikshak by the order of the Block Development Officer, Parbatta dated 09.03.2007 and though the petitioner has joined on the said post of Prakhand Shikshak and is working on the said post but in view of the recommendation made by the District Compassionate Appointment Committee, he should be appointed afresh on a vacant class-III post in the prescribed pay scale. Patna High Court CWJC No.13561 of 2007 (4) dt.22-11-2011 3 Counsel for the State on the other hand would submit that there was no vacant class-III post in the office of District Superintendent of Education, Khagaria and as such the petitioner was offered class-IV post but he had straightway refused to give consent for his being appointed against class-IV post. In this regard it has been pointed out by him that when the petitionier was to be appointed, a specific letter was given to him by the District Superintendent of Education, Khagaria, in his letter no. 1047 dated 21.08.2006 seeking consent of the petitioner for his appointment against class-IV post. The petitioner in reply on 06.09.2006 had given in writing that he was not prepared to accept his appointment on class-IV post. He has further submitted that as the post of teachers being in class-III post had gone out of the administrative control of the District Superintendent of Education after enforcement of Bihar Panchayat Teachers Appointment Rules-2006 brought into force w.e.f, 01.07.2006, the petitioner’s case was forwarded for appointment on the post of Prakhand Shikshak Patna High Court CWJC No.13561 of 2007 (4) dt.22-11-2011 4 and a separate offer was given to him in view of his own application dated 16.01.2007, wherein, he had made a request that he should be appointed on the post of Prakhand Shikshak. The petitioner’s such request was thereafter processed and he was given offer for being appointed on the post of Prakhand Shikshak on 09.03.2007 and he has been appointed as a Prakhand Shikshak on which he has also joined and is presently working. In the considered opinion of this court, once the petitioner had himself consented for being appointed on the post of Prakhand Shikshak as is apparent from his application dated 16.01.2007 contained in Annexure-6 to the writ application, no flaw can be found in the consequential offer of appointment given to the petitioner for his being appointed on the post of Prakhand Shikshak as contained in the letter of the Block Development Officer, Parbatta dated 09.03.2007, contained in Annexure-7 to the writ application. The petitioner has, therefore, got compassionate appointment which should be sufficient for maintaining Patna High Court CWJC No.13561 of 2007 (4) dt.22-11-2011 5 family of the deceased employee, the mother of the petitioner. As with regard to the submission of Mr. Singh, learned senior counsel for the petitioner that the petitioner ought to have been appointed on a class-III post of clerk in the office of District Superintendent of Education, Khagaria, it has to be noted that the petitioner was already indicated by the District Superintendent of Education, Khagaria in his letter no. 1047 dated 21.08.2006 that since there was no vacancy in the post of clerk, a class-III post in the office of District Superintendent of Education, Khagaria, if the petitioner so desired he could give his consent for being appointed on a class-IV post but as noted above he, however, by his application dated 06.09.2006 as contained in Annexure-5 had straightway refused to accept such offer of being appointed on a class-IV post. The petitioner thus having himself refused to accept a lower class-IV post cannot now seek another appointment on a particular post of clerk in the office of District Superintendent of Education, Khagaria when Patna High Court CWJC No.13561 of 2007 (4) dt.22-11-2011 6 as a matter of fact there was no such vacancy on the post of clerk. The recommendation of the District Compassionate Appointment Committee is definitely not binding on the appointing Authority who has to take a decision for appointment in view of the available vacancy. This aspect of the matter stands settled in the Full Bench judgment of this Court in the case of the State of Bihar & Ors. Vs. Rajeev Ran Vijay Kumar reported in 2010(3) PLJR 294, wherein, it has been laid down that irrespective of a recommendation of the District Compassionate Appointment Committee, a dependent of an employee dying in harness of Education Department could be appointed even on the post of Prakhand Shikshak/Panchayat Teacher and that no right could be claimed by the concerned dependent for being appointed on a particular post. Considering all these aspects as explained above and specially the fact that the petitioner has already been appointed on the post of Prakhand Shikshak in the month of March-2007 as per his own request made in the application filed by him on 16.01.2007 Patna High Court CWJC No.13561 of 2007 (4) dt.22-11-2011 7 (Annexure-6) on which he is also working as specifically asserted by him in paragraph no. 17 and 18 reading as follows:- “That according petitioner joined and started discharging his duties to the satisfaction of all concerned. That since the date of joining petitioner is working regularly to the satisfaction of all concerned and is getting the fixed scale of Rs. 4000/- per month.” this Court would find that no further compassion need be shown to the petitioner by now again issuing a direction to respondents to appoint him (petitioner) on a class-III post of clerk. For reaching to this conclusion, this Court would also follow the ratio laid down by Full Bench of this Court in the case of The State of Bihar (supra). That being so, this application is devoid of any merit and is, accordingly, dismissed. Ranjan (Mihir Kumar Jha, J)