IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10179 of 2003 MAHESH DOM, S/O LATE HARI CHARAN DOM, R/O VILLAGE-DHARAUT, POST OF DHARAUT, DISTRICT-JEHANABAD. …………………PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA. 2. THE SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT OF BIHAR, PATNA. 3. THE DIRECTOR-IN-CHIEF, HEALTH SERVICES, GOVERNMENT OF BIHAR, PATNA. 4. THE DIRECTOR, HEALTH SERVICES, GOVERNMENT OF BIHAR, PATNA. 5. THE CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, GAYA. 6. THE CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, JEHANABAD. 7. THE INCHARGE MEDICAL OFFICER, GOVERNMENT HOSPITAL, DHARAUT, JEHANABAD (GAYA). ………………RESPONDENTS. For the petitioner : Mr. Amrendra Kumar, Adv. For the State : Mr. Krishna Murari Prasad, A.C. to G.A.-X. ----------- 12 08.10.2009 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner has filed this writ application challenging Annexure-6 a memo dated 21.6.2003 issued by the respondent Civil Surgeon terminating the services of the petitioner and with a prayer for direction to the respondents to re-instate his service with all consequential benefits. As per the case of the petitioner, his father was working on the post of Sweeper under the respondents and died - 2 - in harness. Consequent to the death of his father, petitioner applied for his appointment on compassionate ground which was considered and forwarded by the Incharge Medical Officer to the higher authorities for appropriate orders. It is stated that the application was considered by the competent authority i.e. the Civil Surgeon and petitioner was appointed in place of his father on compassionate ground vide Annexure-3 dated 17.3.1983. Accordingly, petitioner had joined on 21.3.1983, his service book was opened and thereafter, he continued in service uninterruptedly under the respondents. It was only in 2002 that he was served with a show cause notice by the Civil Surgeon and was asked to produce documents in favour of his appointment. Petitioner produced some documents before respondent no. 6, the Civil Surgeon of Jehanabad and after consideration of his show cause and papers submitted by him, respondent Civil Surgeon, Jehanabad held that his appointment was illegal and terminated his services by impugned order (Annexure-6) dated 21.6.2003. Learned counsel for the petitioner submits that while terminating the services of the petitioner, the Civil Surgeon has misdirected himself by applying norms for regular appointment in the Government service to an appointment on compassionate ground. He submits that the Civil Surgeon has not considered the fact that petitioner was, in fact, son of a deceased Government employee and, as per the rules as prevailing at the - 3 - relevant time, he was entitled for compassionate appointment. He submits that after passage of almost 20 years, petitioner, a class-IV employee and harizan by caste, was asked to produce documents in respect of his appointment in 1983, which was not possible for the petitioner to hunt and produce to show the steps taken by the then Civil Surgeon, Gaya at that time in his appointment, upon his application as recommended by the Incharge Medical Officer. Therefore, he was in complete dark as to whether his case was presented before the District Compassionate Committee or not. He submits that even if it is assumed that his case was not placed before the District Compassionate Committee, the same may be an irregularity only, as, being a son of the deceased employee, who died in harness, under the law, he was entitled for compassionate appointment. A counter affidavit has been filed by the respondents in the case in which there is no denial of the fact that the father of the petitioner was a Government servant working on Class-IV post and died in harness. There is also no denial that the petitioner is the son of the said Government employee. The main challenge to the writ application in the counter affidavit is on the ground that the application of the petitioner was not in proper format and the recommendation of the District Compassionate Committee was not obtained by the then Civil Surgeon, Gaya before issuing his appointment letter. - 4 - A reply to the counter affidavit has been filed by the petitioner along with which a document has been annexed which shows that proposal for approval of appointment of petitioner on compassionate ground was routed by the office. This document shows that some procedure was adopted by the office of the then Civil Surgeon, Gaya for approval of his case for appointment by the District Compassionate Committee. From the reading of the impugned order (Annexure- 6), it appears that the Civil Surgeon, Jehanabad has mainly found fault in the appointment of the petitioner on the basis that Government directions in respect of appointment were not followed inasmuch as no advertisement was published and the appointing authority had not notified the vacancies to the Employment Exchange and no list of candidates was prepared, interview was not held and no recommendation of the selection committee was obtained and rules with regard to the reservation and roster clearance were not followed. It has also been said in the impugned order that some order of the Government as contained in letter no. 1334(11) dated 31.1.1987 was not followed and in view of the judgment of this Court passed in CWJC No. 556 of 2003, the appointment of the petitioner could not be held valid. The grounds mentioned in the said letter have been noticed just to make it clear that none of the grounds are applicable in the case of petitioner as petitioner’s appointment was not on vacancy available for regular appointment following - 5 - the procedures laid down by law. It is well established that appointment on compassionate ground is an exception to the rules for the appointment on regular basis on sanctioned vacancies and for the same no advertisement or selection process etc. is required. So far judgment of this Court passed in CWJC No. 556 of 2003 is concerned, learned counsel for the petitioner has produced its copy to show that the said judgment was rendered in the case of appointment on daily wages. Thus, that judgment is also not applicable in the case of the petitioner. Letter No. 1334 dated 31.1.1987 has not been produced with the counter affidavit to substantiate the statement made in the impugned order. Therefore, it is clear that the respondent Civil Surgeon, Jehanbad has misdirected himself while considering the case of petitioner and issuing the impugned order of his termination. It is established from the records of the case, and documents produced by the parties, that petitioner was a son of the deceased Government employee who died in harness. The proposal produced with reply to the counter affidavit shows that the petitioner was only son of the employee and, therefore, his name was recommended for compassionate appointment. This is also not in dispute that at the relevant time law with regard to compassionate appointment was in vogue and under that petitioner was entitled for compassionate appointment and as - 6 - such, petitioner was appointed by the Civil Surgeon, Gaya on that ground. A mere fact that word compassionate has not been mentioned in the appointment letter of petitioner will not invalidate his appointment if his entitlement for the same does not stand disputed. This is also clear that petitioner has been allowed to continue in service for almost 20 years and now question of procedural irregularities in his appointment on compassionate ground is being raised by the respondents. In the circumstances, considering the above aspects of the matter, this Court is of the view that impugned order (Annexure-6) is not sustainable in law. As such in the result, the writ application is allowed and impugned order (Annexure-6) is quashed and the respondents are directed to reinstate the petitioner in service from the date of his termination with all consequential benefits. Arvind/ (J.N. Singh, J.)