IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1959 of 2009 Ajay Kumar Paswan . Versus The State Of Bihar & Ors . ----------- 3/ 05/07/2011 Heard learned counsel for the petitioner and learned counsel for the State. The father of the petitioner died in harness on 10.12.2002 while working in the District Industries Centre at Rohtas. The petitioner applied for compassionate appointment. He was subjected to an eligibility test which he cleared successfully. On 30.6.2006 he was offered appointment on a Class-4 post of a night guard. The petitioner joined on 11.7.2006. After having given his joining, on 15.7.2006 he submitted a representation that the District Compassionate Appointment Committee had recommended him for appointment on 27.8.2004 upon a Class III post. He had been given such appointment at Darbhanga on a class IV post on grounds of non- availability of posts. But, there was vacancy available in Class-3 at the Upendra Maharathi Shilp Research Institute, Patna and in other districts. He should have been considered for a Class-3 appointment on such posts. Learned counsel for the petitioner submitted 2 that if the petitioner had been subjected to an eligibility test and had passed the same, there was no justification to appoint him on a Class-4 post. The petitioner had been recommended by the appointment committee for a Class-3 post and therefore there was no justification to appoint on a Class-4 post. The petitioner has demonstrated that on the date that he was appointed on a Class-4 post, vacancy on a Class-3 post was available. Therefore, to appoint him on a Class-4 post ignoring the recommendation of the Committee despite the availability of a vacancy was arbitrary. It was also urged that others who were considered have been appointed on Class-3 posts at other places. The petitioner was the ward of a General Manager while the others were words of lesser mortals with lesser qualifications. Reliance has been placed in support of the submissions on a Bench Decision reported in 2000 (3) P.L.J.R. 406 (Madhuri Kumari Sinha Versus The State of Bihar and Ors.). Despite the passage of nearly two and a half years since service of a copy of the writ application, the respondents have not considered it necessary to assist the Court in timely and quick dispensation of justice by filing a counter affidavit, a bounden duty of theirs. 3 The Court shall therefore proceed to consider the claims in light of the law laid down with regard to compassionate appointment and the right to be considered for a Class-3 post in contra-distinction to an appointment given on a Class-4 post. Every appointment in the Government constitutes a national wealth. Therefore, each such appointment in the Government has to be in accordance with the mandate of Article-14 of the Constitution of India necessitating an open advertisement and a competitive merit selection so that all citizens eligible have a right to be considered. Any appointment contrary to the mandate of Article-14 suffers from the vice of illegality. However, judicial interpretation has permitted a limited and restricted inroad into this aspect of Article-14 by recognizing compassionate appointments. But, each time an appointment is granted on compassionate grounds Article-14 stands violated. Therefore, judicial pronouncements have leaned on a restrictive and strict interpretation of the principles for compassionate appointment. A person who seeks employment on compassion, once he has been granted compassion, cannot turn the situation to his advantage and then claim a right to further compassion despite the fact that 4 he happened to be fortunate on grounds of descent to have obtained employment by jumping the queue when others may not have been so fortunate as him. The petitioner was offered employment on a Class-4 post at Darbhanga. He accepted the same without demur on 11.7.2006 and joined the post. If he, as the son of a General Manager, considered the offer demeaning to his status, surely, he had an option not to accept it in humiliation. He could have taken his chances in the open market on merit for a job based on competitive merit selection. But, if he seeks a short-cut to his employment and the comfort of his life, he cannot have it both ways. The fact that he may have given an objection on 15.7.2006 after joining is hardly of any relevance. He cannot blow hot and cold simultaneously. He cannot accept the benefit of a compassionate appointment and yet question it. When a compassionate appointment is granted, it is for the respondents to decide where the utilization shall be and not for the appointee to dictate where he shall be posted. If the respondents opined that his services were required at Darbhanga and where there was no vacancy except on a Class-4 post, the petitioner has no option but to join or to decline the offer. The fact that a vacancy may have been available at Patna shall not vest a right in him to 5 demand that he must be posted at Patna or at any particular place of his choice. Those are matters for the Executive to decide and not for the Court to opine about as vesting a cause of action in the petitioner. In the case of Madhuri Kumari Sinha (supra) this Court directed an offer of appointment to be made for a Class-3 post contrary to the appointment offered on a Class-4 post. In 1996 (2) P.L.J.R. (S.C.) 199 (State of Bihar & Ors. Vs. Samsuz Zoha etc.) arising out of a decision of this Court issuing a mandamus for appointment on a Class-3 post contrary to the offer made for a Class-4 post, the Supreme Court has held at paragraph-4 as follows:- “4. The question that arises for consideration is whether the High Court is right in giving directions to appoint them afresh or give them promotion ? It is not in dispute that there is no right vested in the candidates for particular appointment on compassionate grounds. The State had taken policy decision to appoint all the candidates irrespective of the qualifications at Class IV post and, therefore, the Committee consisting of the Secretary, Addl. Secretary and the Registrar met and decided the principle that all the available posts in Class IV should be made available to the candidates in the awaiting list for appointment on compassionate grounds. 12 posts available in Class III were reserved for appointment by promotion to the Class IV candidates who were entitled thereto as per the rules. The principle adopted by the Government cannot be said to be unjustified or illegal. Undoubtedly, some candidates had gone to the Court and obtained orders and in compliance thereof, at pain of contempt petition, the 6 Government, instead of appointing them to class IV posts since by then the Class III posts were not available, upgraded Class IV post as Class III post and confirmed them as Class III employees. That order which was wrongly made by the High Court cannot be a base to issue directions. In other words, if the directions are complied with all the Class IV posts would be converted into Class III posts which is against the discipline of the service. The High Court, therefore, was not justified in issuing directions in all the cases for appointment to Class III post.” In (1994) 6 SCC 560 (STATE OF RAJASTHAN Versus UMRAO SINGH) it has been held that once the claim for compassionate appointment had been consumated by acceptance and joining, the question of any second consideration for a higher post on the ground of compassion simply does not arise. In (2007) 6 SCC 162 (I.G.(KARMIK) AND OTHERS Versus PRAHLAD MANI TRIPATHI) the dependant was granted compassionate appointment as a peon. He accepted the appointment without demur. Subsequently, he sought his absorption on the post of constable, a post which his father held while in service. The Tribunal directed him to be considered for a Class- 3 post. The Supreme Court after considering the law of compassionate appointment held at paragraph Nos.11 and 12 as follows:- “11. The respondent, thus, could be offered an appointment only to the post for which he was suitable. 12. Furthermore, the respondent accepted 7 the said post without any demur whatsoever. He, therefore, upon obtaining appointment in a lower post could not have been permitted to turn round and contend that he was entitled for a higher post although not eligible therefore. A person cannot be appointed unless he fulfils the eligibility criteria. Physical fitness being an essential eligibility criteria, the Superintendent of Police could not have made any recommendation in violation of the rules. Nothing has been shown before us that even the petitioner came within the purview of any provisions containing grant of relaxation of such qualification. Whenever, a person invokes such a provision, it would be for him to show that the authority is vested with such a power.” The Court finds no merit in this application. It is accordingly dismissed. KC ( Navin Sinha, J.)