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Patna High Court
Abhishek Kumar vs The Bihar Police Building Construction ... on 5 January, 2026
Author: Partha Sarthy
Bench: Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1316 of 2017
======================================================
Abhishek Kumar S/o Late Rajnandan Prasad, Resident of village -
Mamurabad, P.O. Mirchaiganj, P.S. Nalanda, District - Nalanda
... ... Petitioner/s
Versus
1. The Bihar Police Building Construction Corporation, Kautilya Nagar, Patna
through Managing Director.
2. Managing Director, Bihar Police Building Construction Corporation,
Kautilya Nagar, Patna.
3. Secretary, Bihar Police Building Construction Corporation, Kautilya Nagar,
Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sanjay Kumar, Advocate
For the Respondent/s : Mr. Prasoon Sinha, Sr. Advocate
Mr. Prabhat Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
Date : 05-01-2026
Heard learned counsel for the parties.
2. The petitioner has filed the instant application for
the following relief:
"1. That the present petition is
being preferred for issuance of an
appropriate writ/writs order/orders
direction/directions to concern authorities
for consideration and his appointment
against cadre/post in class-3 instead to
class-4 by virtue of death to his father Late
Rajnandan Prasad as an employee of
corporation in light of eligibility suitability
and qualification on basis of facts and for
Patna High Court CWJC No.1316 of 2017 dt.05-01-2026
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other necessary relief/reliefs to the basis of
facts and circumstances of case enumerated
and stated hereinafter."
3. The case of the petitioner in brief is that his
father who was working in the Bihar Police Building
Construction Corporation died in harness on 4.9.1997.
4. The petitioner filed his application for
appointment on compassionate ground, however the financial
condition of the Corporation being very poor, no appointments
were being made. It was only in the year 2014 that on the
financial condition of the Corporation improving that a
committee headed by the Chief Engineer of the Corporation was
constituted to review the applications pending for appointment
on compassionate ground.
5. By office order no. 365 of 2015 dated 2.12.2015,
17 applicants including the petitioner herein were appointed on
compassionate ground as a Class-IV employee on the post of
orderly/peon.
6. The petitioner joined his duties and started
discharging the same.
7. It is subsequent to his having joined duties in the
above capacity on the Class-IV post that the petitioner has now
moved this Court for a direction to the respondents to consider
Patna High Court CWJC No.1316 of 2017 dt.05-01-2026
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his appointment against a Class-III post as the petitioner is a
Ph.D. It is submitted by learned counsel appearing for the
petitioner that the petitioner holding the Ph.D. degree on the
date of his application for compassionate appointment, in view
of the officer order no. 109 of 2015 dated 30.1.2015, the
petitioner should have been appointed on Class-III post instead
of Class-IV.
8. In response, it is submitted by learned counsel
appearing for the respondents that the employee i.e. the father of
the petitioner having died in harness on 4.9.1997, the
application of the petitioner came to be filed only in the year
2009 and because of the poor financial condition of the
Corporation he was appointed in the year 2015. It is further
submitted that the petitioner has no right to be appointed on a
particular post or class of post and he also has no right for
appointment on a higher post.
9. Heard learned counsel for the parties and perused
the material on record.
10. The facts not in dispute are that the father of the
petitioner who was working as an employee in the Corporation
having died on 4.9.1997, the petitioner filed an application for
appointment in the year 2009. As a result of the poor financial
Patna High Court CWJC No.1316 of 2017 dt.05-01-2026
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condition of the Corporation, no appointments on
compassionate ground was made. On the condition of the
Corporation improving, a committee constituted under the
chairmanship of the Chief Engineer considered the applications
which were pending for appointment on compassionate ground
and proceeded to appoint 17 persons including the petitioner
herein on 2.12.2015 on a Class-IV post of orderly/peon.
11. It is not in dispute that the petitioner joined the
said post and started working thereon and came to file the
instant writ application in the year 2017 for a direction to the
respondents to consider his appointment against Class-III post
instead of Class-IV.
12. The Hon'ble Supreme Court in the case of
Director of Town Panchayat and Ors. vs. M. Jayabal and
Anr.; 2025 SCC OnLine SC 2794 held as follows:
"CLAIM FOR HIGHER POST
8. It is not in dispute that after
the death of the employees in service, the
dependent family members were offered
appointment to a post for which an
application was made by them. They had
joined on that post without raising any
objection. Meaning thereby, the financial
crisis of the family was over as one of the
dependents of the deceased was offered
Patna High Court CWJC No.1316 of 2017 dt.05-01-2026
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appointment on compassionate basis in
terms of the policy existing at the time of
consideration of their application.
8.1. The next issue which
requires consideration by this Court is
whether the dependent family member of a
deceased employee, after being appointed on
a post on compassionate basis, can later on
seek indulgence of the employer to appoint
him on a higher post.
9. The law on the issue is well-
settled. The issue as to whether a second
option can be exercised by the dependent
family member of the deceased employee,
once option for compassionate appointment
has already been exercised and the
dependent family member of the deceased
joined on the post to which appointment was
given, was considered by this Court in State
of Rajasthan v. Umrao Singh10. In this case,
the deceased was working as Sub-Inspector,
CID. On account of his death during service,
application for appointment on
compassionate basis was made. The
dependant was offered appointment on the
post of L.D.C. The same was accepted and
the incumbent joined on the post. Later, he
requested for consideration of his case for
appointment on the post of Sub-Inspector,
being eligible for the same. This Court
Patna High Court CWJC No.1316 of 2017 dt.05-01-2026
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negated the claim holding that once right for
consideration for appointment on
compassionate post was consummated, any
further or second consideration for a higher
post on the ground of compassion would not
arise. The relevant paragraph 8 is extracted
below:
"8. Admittedly the respondent's
father died in harness while working as Sub-
Inspector, CID (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 ever arise. Otherwise, it
would be a case of "endless compassion".
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
Patna High Court CWJC No.1316 of 2017 dt.05-01-2026
which has no application to the facts of this
case."
(emphasis supplied)
10. In view of the law laid down
by this Court, it stands clarified that the
once the right of an applicant to be
considered for appointment on
compassionate grounds has been
consummated, no further consideration is
warranted. Once dependent of a deceased
employee is offered employment on
compassionate basis, his right stood
exercised. Thereafter, no question arises for
seeking appointment on a higher post.
Otherwise, it would be a case of 'endless
compassion'.
WHETHER THE DEPENDANT
OF A DECEASED EMPLOYEE CAN SEEK
EMPLOYMENT ON COMPASSIONATE
BASIS ON A HIGHER POST ?
11. This Court has also opined
on the issue whether a dependent family
member of a deceased employee can seek
compassionate appointment on a post higher
than the post which the deceased was
holding, merely on the ground that he fulfils
the criteria of such higher post. The opinion
expressed is that the same will run contrary
to the very object of grant of compassionate
appointment, which is provided to enable the
Patna High Court CWJC No.1316 of 2017 dt.05-01-2026
family of the deceased employee to tide over
sudden financial crisis. Employment on
compassionate basis is provided only on
account of humanitarian consideration.
.......
12. Keeping in view the core
objective behind appointment on
compassionate basis, as has been discussed
in a catena of judgments of this Court, it is
well settled that compassionate appointment
is a relief against immense financial
hardship caused by the sudden and
unforeseen loss of the earning member of a
family. In such event, when a dependant
family member of the deceased employee is
provided appointment on compassionate
basis, it is done in order to ensure that the
family members are not subjected to
impoverishment. Therefore, such
appointment which is arising out of
exceptional circumstances, cannot be used
as a ladder to climb up in seniority by
claiming a higher post merely on the basis
that he/she is eligible for such post."
13. The Hon'ble Supreme Court in the case of
State of U.P. and Ors. vs. Premlata; (2022) 1 SCC 30 held as
follows:
"10. Thus, as per the law laid
down by this Court in the aforesaid
Patna High Court CWJC No.1316 of 2017 dt.05-01-2026
decisions, compassionate appointment is an
exception to the general rule of appointment
in the public services and is in favour of the
dependants of a deceased dying-in-harness
and leaving his family in penury and without
any means of livelihood, and in such cases,
out of pure humanitarian consideration
taking into consideration the fact that unless
some source of livelihood is provided, the
family would not be able to make both ends
meet, a provision is made in the rules to
provide gainful employment to one of the
dependants of the deceased who may be
eligible for such employment. The whole
object of granting compassionate
employment is thus to enable the family to
tide over the sudden crisis. The object is not
to give such family a post much less a post
held by the deceased.
10.1. Applying the law laid
down by this Court in the aforesaid
decisions and considering the observations
made hereinabove and the object and
purpose for which the appointment on
compassionate ground is provided, the
submissions on behalf of the respondent and
the interpretation by the Division Bench of
the High Court on Rule 5 of the 1974 Rules,
is required to be considered.
10.2. The Division Bench of the
Patna High Court CWJC No.1316 of 2017 dt.05-01-2026
High Court in the present case has
interpreted Rule 5 of the 1974 Rules and has
held that "suitable post" under Rule 5 of the
1974 Rules would mean any post suitable to
the qualification of the candidate
irrespective of the post held by the deceased
employee. The aforesaid interpretation by
the Division Bench of the High Court is just
opposite to the object and purpose of
granting the appointment on compassionate
ground. "Suitable post" has to be
considered, considering status/post held by
the deceased employee and the educational
qualification/eligibility criteria is required to
be considered, considering the post held by
the deceased employee and the suitability of
the post is required to be considered vis-à-
vis the post held by the deceased employee,
otherwise there shall be no
difference/distinction between the
appointment on compassionate ground and
the regular appointment. In a given case, it
may happen that the dependant of the
deceased employee who has applied for
appointment on compassionate ground is
having the educational qualification of Class
II or Class I post and the deceased employee
was working on the post of Class/Grade IV
and/or lower than the post applied, in that
case the dependant/applicant cannot seek
Patna High Court CWJC No.1316 of 2017 dt.05-01-2026
the appointment on compassionate ground
on the higher post than what was held by the
deceased employee as a matter of right, on
the ground that he/she is eligible fulfilling
the eligibility criteria of such higher post.
The aforesaid shall be contrary to the object
and purpose of grant of appointment on
compassionate ground which as observed
hereinabove is to enable the family to tide
over the sudden crisis on the death of the
breadearner. As observed above,
appointment on compassionate ground is
provided out of pure humanitarian
consideration taking into consideration the
fact that some source of livelihood is
provided and family would be able to make
both ends meet.
10.3. In the present case, as
observed hereinabove, initially the
respondent applied for appointment on
compassionate ground on the post of
Assistant Operator in Police Radio
Department. The same was not accepted by
the Department and rightly not accepted on
the ground that she was not fulfilling
requisite eligibility criteria for the post of
Assistant Operator. Thereafter the
respondent again applied for appointment
on the compassionate ground on the post of
Workshop Hand. The case of the respondent
Patna High Court CWJC No.1316 of 2017 dt.05-01-2026
was considered, however, she failed in the
physical test examination, which was
required as per the relevant recruitment
rules of 2005. Therefore, thereafter she was
offered appointment on compassionate
ground as Messenger which was equivalent
to the post held by the deceased employee.
Therefore, the appellants were justified in
offering the appointment to the respondent
on the post of Messenger. However, the
respondent refused the appointment on such
post.
11. In view of the above and for
the reasons stated above, the Division Bench
of the High Court has misinterpreted and
misconstrued Rule 5 of the 1974 Rules and
in observing and holding that the "suitable
post" under Rule 5 of the Dying-In-Harness
Rules, 1974 would mean any post suitable to
the qualification of the candidate and the
appointment on compassionate ground is to
be offered considering the educational
qualification of the dependant. As observed
hereinabove, such an interpretation would
defeat the object and purpose of
appointment on compassionate ground."
14. Coming to the facts of the instant case, the
petitioner already having been given appointment on Class-IV
post in the year 2015 wherein he joined and started working, in
Patna High Court CWJC No.1316 of 2017 dt.05-01-2026
view of the law laid down by the Hon'ble Supreme Court in the
judgments referred to herein above, the Court finds no merit in
the plea of the petitioner for a direction to the respondents to
consider his case once again for appointment against Class-III
post.
15. The application is dismissed.
(Partha Sarthy, J)
sauravkrsinha/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 6.1.2026
Transmission Date NA
