IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4770 of 2009 Raj Kumar Sinha Versus The State Of Bihar & Ors ----------- 2/ 26/07/2011 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is aggrieved by the compassionate appointment given to him on a Class-IV post contending that vacancy was available in a Class-3 post. His educational qualification was commensurate for appointment on a Class-3 post. Learned counsel for the petitioner submits that the District Compassionate Appointment Committee at its meeting on 28.11.2007 recommended the name of the petitioner for a Class-3 post in the office of the Superintending Engineer, N.H. (Mechanical Circle), Patna. Placing reliance on an instruction of the Chief Secretary dated 2.7.2008 it is submitted that the State Government had issued instructions that in case of non-availability of posts in the concerned Department, the candidate may be considered in any other Department also keeping in mind his qualifications. Strong arguments were made that on the date that the petitioner was made an offer for appointment on a Class-4 post, vacancies were available in Class-3 2 posts in the same Department at Muzaffarpur and Dehri on Sone. There was thus no justification for offering appointment to the petitioner on a Class-4 post. Learned counsel for the State submits that the offer for appointment on a Class-4 post was made in terms of the recommendation and had necessarily to be dependent upon the availability of posts and need in the Patna Circle. It is not in dispute that the petitioner has joined on 18.3.2009. However, it is the case of the petitioner that such joining was under protest by him and subject to the result of the writ petition. Every appointment under the Government has to be in accordance with the mandate of Article-14 of the Constitution by open advertisement and competitive merit selection. This is based on the premise that employment under the Government constitutes a national wealth and all persons eligible must be given the opportunity to compete. However, the Courts have permitted a limited inroad into this opportunity by recognizing the policy for compassionate appointment. Such appointment is provided in the case of an untimely and unexpected death resulting in grave hardship to the family of the deceased causing penury. The latest judicial trend indicates that penury and 3 destituteness for compassionate appointment does not automatically result from the death. Other sources of income, the extent of the retiral dues received, the nature of investments made by the deceased and the returns that may accrue are all aspects which are now considered and balanced to decide eligibility for compassionate appointment. This evolution was necessitated by the fact that each time a compassionate appointment is made Article-14 of the Constitution stands violated. It is for that reason that the Courts have also leaned towards a very strict interpretation of the policy for compassionate appointment holding that in absence of a policy no such demand can be made and also that any consideration for such appointment had to be strictly in accordance with the policy only. Compassionate appointment has been read down as being limited to Class-4 and 3 posts keeping in mind the aspect of violation of Article-14 of the Constitution every time such an appointment is made. Each appointment on compassionate grounds violates the right of another citizen to be even considered for appointment only because he did not have the necessary descent of being a relative of the deceased. Perhaps, additionally Article-15 of the Constitution also stands violated every time that a compassionate 4 appointment is made. The need for personnel at a particular place or of a particular type is the privilege and prerogative of the employer. The person seeking employment cannot dictate that the appointment may be given to him on a particular post or at a particular place. That is for the employer to decide on his own needs. Merely because a vacancy on a Class-3 post may be available at Dehri on Sone or at Muzaffarpur, shall not vest a right in the petitioner not only to demand a compassionate appointment, but a posting and a job commensurate to his desire. Whether personnel were required at Patna more urgently on a Class-4 post or on Class-3 post at Muzaffarpur or at Dehri on Sone is for the employer to decide and not for the Courts to direct or dictate. In 1996(2) P.L.J.R. (S.C.) 199 (State of Bihar & Ors. Vs. Samsuz Zoha & Ors.) the Supreme Court held that the Court was not justified in giving directions for appointment on Class-3 posts when the appointment was made on Class-4 posts. In (1994) 6 SCC 560 (STATE OF RAJASTHAN Vs. UMRAO SINGH) the deceased was a Sub-Inspector. His son was offered compassionate appointment on the post of a Lower Division Clerk. Having accepted the appointment he then staked a claim to the post of Sub-Inspector. It was 5 held that if on consideration of vacancy he was appointed to the post of an L.D.C. and he accepted that appointment, the right to be considered for the appointment on compassionate grounds stood consumated. No further compassion for appointment on the higher post could arise as it would then be a case of ‘endless compassion’. In the present case also the fact of the matter is that the petitioner has been appointed and has joined the post. The fact that he may have protested and may have joined under protest is for him to decide. If he considers the job to be below his standards and a measure of humiliation, the option is always available with him, but that option cannot be turned into an advantage to demand appointment on a Class-3 post urging that he had accepted the offer under protest. In (2007) 6 SCC 162 (I.G. KARMIK AND OTHERS Vs. PRAHLAD MANI TRIPATHI) after considering the aspects of employment under the Government being a national wealth, the limited inroad permitted for compassionate appointment noticing the earlier settled view of the Supreme Court that there could be no compassion upon compassion, and ultimately in light of the fact that appointment on compassionate grounds recognizing the destituteness 6 and penury had in fact been granted, the Court declined to consider the prayer for appointment on a Class-3 post as against the appointment of peon granted. The Court finds no merit in this application. It is accordingly dismissed. KC ( Navin Sinha, J.)