IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9062 of 2007 Krishna Kanhaiya Kumar, son of late Gyan Das Ram, Resident of Jalalpur, P.O. Jalalpur, P.S. Tekari, Dist. Gaya, presently C/o Pahalwan Shoe Chwok Road, Near Tower, P.S. Kotwali, P.O. G.P.O., Gaya. -------- Petitioner Versus 1. The State of Bihar through the Secretary, Health and Family Welfare Department, Govt. of Bihar, Patna. 2. The Dy. Secretary, Health and Family Welfare Department, Government of Bihar, Patna. 3. The Director-in-Chief, Health Services, Govt. of Bihar, Patna. 4. The Superintendent, Anugrah Narain Magadh Medical College and Hospital, Gaya. -------- Respondents With CWJC No.6336 of 2007 Binu Kumar, son of late Santan Prasad, Resident of Village Kailu Chak, P.S. Masaurhi, Dist. Patna, at present residing in Quarter of A.N.M. College and Hospital, Gaya, Dist. Gaya. ------- Petitioner Versus 1. The State of Bihar through the Secretary, Health and Family Welfare Department, Govt. of Bihar, Patna. 2. The Deputy Secretary, Health and Family Welfare Department, Government of Bihar, Patna. 3. The Director-in-Chief, Health Services, Govt. of Bihar, Patna. 4. The Superintendent, Anugrah Narain Magadh Medical College and Hospital, Gaya. --------- Respondents ----------- 7 06.09.2011 Heard learned counsel for the petitioner and counsel for the State in both the cases. Both the writ applications in fact are directed against a common order dated 25.4.2007, whereby and whereunder, the services of the petitioners along with four others have been terminated on the ground of 2 infirmity in the initial appointment as pointed out by the Accountant General in its audit report and a consequential direction has been issued to recover the entire amount of salary paid to them during continuation of their services from 16.8.2001 to 25.4.2007. Mr. Rajendra Prasad Singh, Senior Counsel for the petitioner while assailing the aforementioned order as with regard to the two petitioners, would submit that these two persons came to be appointed on compassionate ground on the post of Receptionist in Anugrah Narayan Medical College, Gaya on 14.8.2001 in view of the recommendation made by the District Compassionate Appointment Committee, Gaya and as such, their appointment on Class-III post of Receptionist under the order of Superintendent of Medical College cannot be said to be vitiated either on fact or in law. He has further submitted that though the petitioners’ services were terminated after allowing them to continue for a period of nearly six years but, the petitioners’ repeated query before the authorities to show the qualification for the post of Receptionist under the Right to Information 3 Act did not yield any fruitful result and, therefore, it should be presumed that the plea taken by the respondents in their counter affidavit that the qualification of being a Graduate for the post of Receptionist is based on mere speculation. He has further pointed out that when the State Government could take over the services of one Jaidhar Sharma on the post of Receptionist, who too was holding the qualification of Matriculation, the natural presumption would be that the qualification for the post of Receptionist in Anugrah Narain College, Gaya was only a Matriculation and such post, being a Class-III post, the Superintendent of the Medical College had also the power and jurisdiction to make appointment of the petitioners. Mr. Gautam Bose, learned AAG-8 has, however, submitted that the post of Receptionist in a Medical College in the pay scale of Rs. 5000-8000 was a graduate level post but the petitioners, were bare Matriculates and therefore they could not have been appointed on such posts of specialists when they also required specialised training and knowledge of various 4 faculties and wings of Medical College. He has further submitted that the power of appointment of graduate level Class-III post in the pay-scale of Rs. 5000-8000 was always vested in the Director-in-Chief of the Health Services and, therefore, even if a recommendation was received from the District Compassionate Appointment Committee for appointing the petitioners against post of Clerks, the Superintendent A.N. Medical College in absence of a vacancy of matric level Class-III post ought to have referred the matter to the Director-in-Chief but in no event he could have himself appointed the petitioners bare matriculates on the post of Receptionist in the pay-scale of Rs. 5000- 8000 by lowering its pay-scale to Rs. 4000-6000. In the considered opinion of this Court the policy of appointment of the Government on compassionate ground in the Government circular dated 5.10.1991, itself lays down that the person concerned must possess the requisite qualification for the post on which compassionate appointment is to be made. The post of Receptionist in a medical college as per the Government’s affidavit alike all 5 other graduate level post in the State of Bihar is in the pay-scale of Rs. 5000-8000. The reliance placed by the learned Senior counsel for the petitioners on the extract of notification of the Pay Revision Resolution dated 8.2.1999 showing one post of Receptionist in Nalanda Medical College and Hospital Patna in the pay-scale of Rs. 4000- 6000, is wholly misplaced inasmuch as it is well known, even in the Nalanda Medical College and hospital or Anugrah Narayan Medical College and Hospital, there are two categories of employees, namely, those whose services was taken over by the State from private management and for them under Section 6 of the Takeover Act, the State Government had the power not only to define the post but also to prescribe a lower pay-scale. Similarly if for the absorption of persons working under the private management including Jaidhar Sharma in A.N. Medical College and Hospital, Gaya on account of its takeover by the Government, a post of Receptionist was provided in the lower pay- scale of Rs. 4000-6000 as per his qualification that will not mean that the post of Receptionist of all other medical 6 colleges all over Bihar itself had also stood downgraded. In all other government medical colleges the post of Receptionist being a specialized post with requirement of Graduation as the minimum qualification, the same could not have been lowered to Matriculation for facilating compassionate appointment of the petitioner. In fact, this should also answer the hunch of the petitioners as with regard to example cited by them as with regard to the one Jaidhar Sharma about whom it was clearly stated in the communication dated 12.5.2008 collected by the petitioner after filing of this writ application for creating an evidence by using the provisions of Right to Information Act that Jaidhar Sharma was appointed on the post of Receptionist by the private management of Anugrah Narain Medical College and his qualification was Matriculation. A private management, having its own standard and specification the qualification fixed by such private management cannot be yardstick much less binding precedent for the Government, which has to fill up the post of Receptionist in the higher pay-scale of Rs. 5000-8000 on the basis of the minimum qualification of 7 Graduation . The aspect, therefore, which would be relevant for the purpose of these two writ applications is as to whether the appointment of the petitioners could be made on a Graduate level post by way of compassionate appointment even if they did not possess requisite qualification, they being only Matriculates. The answer to the same lies in the policy of the Government circular dated 5.10.1991 which prohibits the appointment on compassionate ground of any such person who does not possess the requisite qualification for the post. As a matter of fact, when the auditors of the Accountant General had found the petitioner’s appointment to be illegal on account of there being appointed against a higher post of Receptionist in the pay-scale of Rs. 5000-8000 by appointing them in a lower pay-scale of Rs. 4000-6000, the Superintendent himself in his report to the Government dated 13.11.2006 to the Director- in-Chief of the health services had admitted that the petitioners were appointed by one Dr. Kamalkant Prasad, the Superintendent of A.N. Medical College and Hospital, Gaya 8 against the post of Receptionist by lowering the pay-scale from Rs. 5000-8000 to Rs. 4000- 6000 though the said post of Receptionist was a class-3 post for which the Superintendent was not the competent appointing authority. It was further mentioned in such report that the post of Receptionist is a specialized post and requires not only the qualification of Graduation but an extra qualification of training which was also not possessed by the petitioners. It was further pointed out that despite the post of Receptionist having a pay-scale of Rs. 5000-8000, the two petitioners were being paid their salary in the pay-scale of Clerk and the Superintendent, who had made such appointment of the petitioners on such specialized post, had not even sought approval of the Director- in-Chief, the appointing authority of the post of Receptionist, a graduate level Class- 3 post. At this place, it would be also relevant to note here that the State Government has also fixed the ceiling of pay-scale in the matter of Compassionate appointment of Class- 3 post and from the instruction issued by the Government in its letter no. 2844 dated 9 15.4.2000 issued by the Personnel and Administrative Department, it is clear that the appointment in Class-3 post having pay-scale of Rs. 4000-6000 could only be filled by way of compassionate appointment. Thus, it was not open for the retired Superintendent, A.N. Medical College to appoint the petitioners on the post of Receptionist by lowering its pay-scale from 5000-8000 to Rs. 4000-6000 in the pay-scale of Clerk. For this act of deliberate misconduct on the part of Mr. Kamalkant Prasad, a retired Superintendent of A.N. Medical College, Gaya, he would become directly answerable and also liable for refunding the entire amount of salary paid to the petitioners, inasmuch as, even when the petitioners would not be held responsible for drawing the salary for the work done by them, the authority, who had made such illegal appointment, will have to pay for his sin and compensate the loss caused to the Government even after his retirement in order to meet the audit objection. In this regard, it has to be kept in mind that the State Government through the Director-in-Chief was over- enthusiastic to recover the entire amount of 10 salary from the petitioners as would be evident from the letter of the Director-in- Chief dated 4.4.2007 and its reply by the Superintendent, Medical College dated 27.8.2007 (Annexure-8) and thus if the Government has to now comply the audit objection on account of loss of exchequer because of salary paid to the petitioners, it may recover such amount from Dr. Kamalkant Prasad, a retired Superintendent of A.N. Medical College, Gaya and not from the petitioners. Mr. Rajendra Prasad Singh, learned senior counsel for the petitioners has also submitted that the same impugned order was quashed by this Court in CWJC No. 7049 of 2007 (Jitendra Prasad Singh Vs. The Stat of Bihar & Ors.) and as such, for the reasons mentioned in the aforesaid order dated 22.4.2011 in the case of Jitendra Prasad Singh (supra), this Court should also pass a similar order. In the considered opinion of this Court, such submission has to be only noted for its being rejected. In the case of Jitendra Prasad Singh, his appointment was made by the Superintendent of M.G.M. Medical College and 11 Hospital, Jamshedpur against a Class-3 post of Clerk on 1.3.1988 and later on he was transferred to A.N. Medical College and Hospital, Gaya on 30.7.1988 and at Gaya, his services were also regularized on the post of Clerk on 31.5.1989. In the light of aforesaid facts, this Court had held that the report of the Accountant General as with regard to Jitendra Prasad Singh could not be sustained, inasmuch as, the Accountant General was not shown the order of regularization of service dated 31.5.1989. The following passage of the order in the case of Jitendra Prasad Singh (supra), reading as follows:- “Thus, I have no option but to hold that the services of the petitioner and the persons mentioned in those correspondences stood regularized in the year 1989 itself and, that being so, there was no question of reopening the matter as regularization itself presupposes initial irregularity have not been committed. Thus, the impugned orders terminating the service of the petitioner cannot be sustained.” would by itself explain the clear distinguishing feature between the case of the petitioners and the case of the Jitendra Prasad Singh (supra) . As a matter of fact, today itself this 12 Court also had allowed the writ application arising out of the same impugned order in the case of Binod Kumar Sinha being CWJC No. 11030 of 2007 after noticing that he too was initially appointed in the year 1983 in Patliputra Medical college and Hospital on the post of Laboratory Technician and had been subsequently transferred to the A.N. Medical College and Hospital, Gaya and, therefore, in his case, the audit objection and the resultant impugned order on the ground that the Principal of the Medical College in the year 1983 had no power to make appointment on the post of Laboratory Technician was factually incorrect, inasmuch as, such power of appointment on the post of Laboratory Technician after being made a state level post was vested in the Director- in-Chief only on 7.3.1990. In the case of Binod Kumar Sinha (supra), this Court had also alike in the case of Jitendra Prasad Singh similarly held that the audit objection as with regard to the illegality in his appointment was based on factual error as with regard to the competence of Principal of Medical College for making appointment on the post of Laboratory Technician. Thus merely 13 because by one common order nine persons were sought to be removed from service would not mean that all of them have a same service history or that the individual reasons for their termination of service even being separate and different could be dealt on the same parameter. The remaining submission of Mr. Singh that though audit objection was against nine persons but the department did not take action against three of them, has been also clearly answered by the respondents in the supplementary counter affidavit wherein, it has been explained that Gupteshwar Prasad Singh, Mahendra Prasad Singh, who were initially appointed to the Class-4 post by the private management of A.N. Medical College before its taking over by the State Government, on being reported by the Accountant General with regard to their illegal promotion on the post of E.C.G. Technician and Media Man, had been subsequently reverted back to their original Class-4 post and that Pravesh Singh who was initially appointed on the post of Male Family Welfare Worker and later on promoted to the post of Clerk was also subsequently 14 reverted to the post of Family Welfare Worker. These facts stated in the supplementary counter affidavit by the Director-in-Chief himself has not been controverted by the petitioners and, therefore, it would also become clear that the case of Gupteshwar Prasad Singh, Mahendra Prasad Singh and Pravesh Singh are also clearly distinguishable on fact and in fact in their case the objection of Accountant General as with regard to their illegal promotion by the Superintendent has been also removed by reverting them to their substantive original post. In that view of the matter, since the petitioners do not possess the qualification of Graduation, their appointment on the post of Receptionist in the medical college, which is a specialized post, cannot be said to be conformity with the scheme as laid down in the Government policy of compassionate appointment. Thus the impugned order so far it relates to cancellation of their appointment is upheld but the other part of the same impugned order directing recovery of salary from the petitioners for the period they had worked i.e. 16.8.2001 to 25.4.2007 15 is bad, inasmuch as, the petitioners did not misrepresent while seeking their appointment on compassionate ground that they were not matriculate and thus if the Superintendent, A.N. Medical College, Gaya despite being aware of the qualification of the petitioners had appointed them on graduate level post exceeding his jurisdiction, the petitioners cannot be penalized by way of recovery of salary already paid to them even though they would not be entitled to save their such illegal appointments. Thus, the impugned order so far it relates to ordering recovery from the petitioners of their salary already paid to them prior to their termination of service cannot be sustained and that portion of the impugned is accordingly quashed with a liberty to the Director-in-Chief, Health Services to recover such amount from the retirement benefit of Mr. Kamlakant Prasad the then Superintendent, A.N. Medical College, Gaya to meet audit objection. Yet another question would be as to whether the petitioners’ appointment having been made on compassionate ground against the graduate level posts of Receptionist and 16 cancelled due to lack of their requisite qualification, can their original claim for appointment on compassionate ground on any other post, commensurate to their qualification be also eclipsed for ever? The Government has framed such policy of compassionate ground in order to help the family of the deceased employee and in the case of the petitioners, the District Compassionate Appointment Committee had also recommended them for appointment on compassionate ground. Therefore, there is no dispute that the petitioners were entitled for being appointed on compassionate ground on any vacant post in A.N. Medical College, Gaya, where their father were working prior to their death. The learned A.A.G.-8 has rightly and in fact very fairly submitted that the removal of the petitioners from the service on the post of Receptionist would never mean that they will also not qualify for appointment on compassionate ground on any other appropriate post in A.N. Medical College, Gaya as per their qualification and available vacant post as on today. In that view of the matter, while this Court would uphold the order of termination 17 of the service of the petitioners, it would still direct the Director-in-Chief, Health Services to take an immediate decision for appointment of the petitioners on any appropriate vacant Class-III/Class-IV post in A.N. Medical College, Gaya keeping in view the qualification possessed by them. Such an exercise, therefore, must be completed by the Director-in-Chief of the Health Services within a period of three months from the date of receipt/production of a copy of this order. With the aforesaid observation and direction this writ application is disposed of. Rsh (Mihir Kumar Jha, J.)