IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5698 of 2008 SHWETANSH KUMAR, (aged about 24 years), son of Shailendra Kumar Sinha, resident of late Gorakh Tiwari House, Near Keshri Bhawan “Hariji Ka Hata”, P.S. Dumraon, District Buxar … Petitioner Versus 1. THE STATE OF BIHAR 2. The District Magistrate cum Chairman District Compassionate Committee, District Buxar 3. The District Superintendent of Education, Buxar, District Buxar 4. The Block Education Extension Officer, Dumraon, Buxar 5. The Area Education Officer, Dumraon, Buxar 6. The Headmaster, Primary School Bankat, Dumraon, Buxar 7. Pranav Shekhar, son of late Paras Nath Tiwari, Assistant Clerk, High School Rampur, Buxar 8. Prem Bhushan Tiwari, son of late Suryamani Tiwari, Assistant Clerk, High School Purulia, Buxar … Respondents ----------- 2. 21.4.2011 Heard counsel for the petitioner and the counsel for the State. The petitioner is aggrieved by a decision of his being offered an appointment on the post of Panchayat Shikshak by way of compassionate appointment on a plea that even when the District Compassionate Appointment Committee had recommended the petitioner for appointment on a Class III post, the appointing authority could not have compelled the petitioner to accept the appointment on the post of Panchayat Shikshak which is having not the same 2 facility as that of a Government servant. Counsel for the petitioner has also highlighted that whereas he having been ranked higher to the other persons recommended by the District Compassionate Appointment Committee in a priority list had been offered the post of Panchayat Shikshak, the persons placed below the petitioner were appointed on the post of Clerk which would by itself amount to clear violation of the rights of the petitioner guaranteed under Articles 14 and 16 of the Constitution of India. In this context he would refer to the case of respondents no. 7 and 8 and would also place reliance on an unreported judgment of this Court dated 26.11.2008 in C.W.J.C.No. 13698/2005 (Ashok Kumar Pandey vs. the State of Bihar & ors.). Counsel for the State, on the other hand, would submit that the issue now stands squarely covered by the law laid down by this Court in the Full Bench judgment in the case of State of Bihar & ors. vs. Rajeev Ran Vijay Kumar, reported in 2010(3) PLJR 294, wherein it was held that the recommendation made by the Compassionate Appointment 3 Committee would not be binding on the appointing authority and that the vacancies of Panchayat Shikshak/ Prakhand Shikshak could also be filled up by way of offering appointment on compassionate ground to a dependent of the deceased Government servant. In the considered opinion of this Court the case of the petitioner is squarely covered by the ratio of the Full Bench judgment in the case of Rajeev Ran Vijay Kumar (supra), wherein after considering all the aspects of the matter it was held as follows: “27. We have referred to the above circular in extenso only to appreciate that a legal heir or dependent having no legal right to be appointed to a Government post can not claim it as a matter of right. The State Government has withdrawn the preference that existed in the circular dated 12.7.1977. It has made an alternative arrangement that the teachers serving in the erstwhile Government schools, when die-in- harness, their legal heirs can be accommodated as Prakhand Teachers. The view expressed in Brajesh Kumar 4 (supra) that they cannot be appointed in the said schools is really not a matter to be adverted to by this Court as it is the policy decision of the Government to appoint such teachers in those schools by carving out an exception. As has been stated in many a decision, a compassionate appointment by its very nature is an exception and the same has to be treated as an exception for all purposes. Possibly, the matter would have been different had the rule been in force conferring a particular privilege on the legal heir or dependent of the Government teacher, who died-in-harness. That not being the position, the Government has the power/ authority to change the policy from time to time and that having been done, no fault can be found with the appointment given to the appellant on the post of Prakhand teacher in the Koilwar Block. While holding so this Court has also taken into consideration the circular of the State Government dated 28.12.2006 (Annexure 11) on the subject, wherein it has been laid down that any recommendation made by the District Compassionate Appointment 5 Committee for appointment on Class IV post could be acted upon by offering appointment on the post of Panchayat Shikshak. In view of the fact that the said circular has been approved by the Full Bench of this Court in the aforesaid case, the challenge of the petitioner to the said policy decision must be and is hereby rejected. The reliance placed on an earlier order of this Court dated 26.11.2008 in the case of Ashok Kumar Pandey (supra) has to be now taken to be a bad law, inasmuch as the Full Bench has decided that any recommendation made by the Compassionate Appointment Committee could be also utilized for appointment on the post of Prakhand Shikshak. Thus, the law laid down in the case of Ashok Kumar Pandey (supra) will have now no application in the case of the petitioner as it stands impliedly overruled by the Full Bench judgment. The last submission of the counsel for the petitioner as with regard to discrimination of his case vis-à-vis the case of respondents no. 7 and 8 has to be considered in the backdrop that the 6 appointment of the petitioner was not made for four years in view of the recommendation made by the Compassionate Appointment Committee in the meeting held on 26.12.2003 and yet the petitioner did not approach this Court for a good period of five years before filing of this writ application on 1.4.2008. The petitioner’s case in fact was again placed for consideration before the Compassionate Appointment Committee in the year 2004 and his case was also recommended on 24.7.2004 and from reading of both the recommendations it would be clear that the appointment of the petitioner despite being recommended against Class III post could not be made for want of vacancy. This Court is not aware about the educational qualification of respondents no. 7 and 8 nor there is any averment in this regard and therefore, the plea of discrimination based on half-baked material cannot be adjudicated by this Court. None-the-less as the petitioner has come out with a case that he was discriminated against the same set of persons, this Court would give liberty to 7 the petitioner to approach the District Superintendent of Education, Buxar who would now examine the case of the petitioner vis- à-vis the case of respondents no. 7 and 8 and if it is found that the petitioner was better qualified and yet was left out, he would after giving opportunity of hearing to respondents no. 7 and 8 would cancel their appointment against the post of Clerk and would also place them on the post of Panchayat Shikshak. The issue of discrimination and perpetuating an illegality has to be understood in the context that a writ Court while deciding the case would not go to the perpetuated illegality. The law in this respect stands well settled in the judgment of the Apex Court in the case of State of Bihar vs. Upendra Narain Singh & ors., reported in (2009)5 SCC 65. Therefore, if the appointment of respondents no. 7 and 8 was illegal and was made in violation of Articles 14 and 16 of the Constitution of India they must be cancelled and they too have to be reduced to the post of Panchayat Shikshak, in stead of the petitioner being 8 appointed on a Class-III post of Clerk in the office of District Superintendent of Education. That being so, this Court does not find any merit in this application so far the claim of the petitioner for appointment on any post of Clerk is concerned and the same is, accordingly, disposed of with the aforementioned observation and direction. (Mihir Kumar Jha,J.) Surendra/