Aftab Alam, J.

There are two petitioners in this application who seek to challenge an office order dated 21-5-1992 issued by the Special Officer, Munger Municipal Corporation, Munger. By the impugned order (Annexure-1) the petitioners were denied promotion on the ground that, their initial appointment was made on compassionate grounds and in terms of circular No. 13293 dated 5-10-1991 issued by the Government, no promotions were allowed to such employees.

2. It is not in dispute that both the petitioners were appointed on compassionate grounds following the death of their respective fathers while in service. Petitioner No. 1 was appointed as Khalasi and petitioner No.2 was appointed on the post of Jamadar. Under the Rules for Regulating the Appointment and Qualifications for the Officers and Services of Municipalities, framed by the State Government under Clause (a) of sub-section (1) of Section 42 of the Bihar & Orissa Municipal Act 1922, the posts of Jamadar and Khalasi belong to inferior service of the Municipal Corporation.

3. Separate counter affidavits have been filed in this case on behalf of respondent No. 1 and respondent No.4 the private respondent who was given promotion from the inferior service to the post of Lower Division Clerk.

4. From the counter affidavit filed on behalf of respondent No. 4, it appears that applications were received from a number of persons in the inferior service for being considered for promotion to Class III posts of Lower Division Clerk. All the applicants were considered by a selection committee constituted by the Corporation. A copy of the proceedings of the selection committee has been brought on record as Annexure-B. From this annexure it appears that as regards petitioner No. 1 who was at serial No. 6 in the list of the applicants the Selection Committee mace the following remarks:

"His appointment was made on compassionate grounds. Government Circular No. 13293 dated 5-10-1991 puts a bar, against any promotion or change in the cadre of an employee appointed on compassionate grounds. Occasionally he worked in the office which was unsatisfactory"

As regards petitioner No. 2 who was at serial No.7 the following remarks were made by the Selection Committee :

"Appointment was made on compassionate grounds. Has been working on the post of Mali from the date of appointment. Has never worked in the cadre of Assistants because he cannot even write an application correctly. According to the Government direction no further promotion can be given and no change in the cadre can be made in case of a person appointed on compassionate grounds”

5. In support of the stand that a person appointed on compassionate grounds is not entitled to any promotion in future reliance has been placed on the provisions of Circular No. 13293 dated 5-10-1991 and also Judgment of this Court dated 3-4-1995 in CWJC No. 6711 of 1993 (Ashutosh Kumar Roy v. State of Bihar and others).

6. It is clear to me that the respondents have committed an error in following the true import of the circular and the decision of this Court. What in fact, is not permissible for a person appointed on compassionate grounds is to reagitate his claim for a superior post on the same ground or the same cause of action. For illustration if one is appointed on a Class IV post on compassionate grounds he cannot re agitate his claim after his appointment that having regard to his higher qualification he was entitled to appointment on a superior post and he should therefore be so appointed/promoted on the basis of his higher qualification. On the other hand if a person is appointed on a Class IV post though on compassionate grounds he becomes part of the service and in normal course he like any other employee is entitled to be considerer for promotion in accordance with the relevant service rules. His case cannot be shut out from any consideration for promotion simply on the ground that his initial 2ppointntent was made on compassionate grounds.

7. Mr.