IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.16458 OF 2008 USHA SINHA, WIFE OF LATE ASHOK KUMAR SINHA, RESIDENT OF MOHALLA NADRA GUNJ, POLICE STATION CIVIL LINES, POST OFFICE CHAND CHAURA, DISTRICT GAYA. VERSUS 1. THE STATE OF BIHAR 2. THE SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA 3. THE DISTRICT MAGISTRATE –CUM- PRESIDENT, DISTRICT COMPASSIONATE COMMITTEE, GAYA 4. THE SUPERINTENDING ENGINEER, PUBLIC HEALTH DEPARTMENT (MECHANICAL), GAYA DIVISION, GAYA 5. THE EXECUTIVE ENGINEER, PUBLIC HEALTH DEPARTMENT (MECHANICAL), GAYA DIVISION, GAYA ……………………………………………………………………….RESPONDENTS ********* FOR THE PETITIONER :- MR. GOPAL GOVIND MISHRA, ADVOCATE MR. VIJAY KUMAR MISHRA, ADVOCATE FOR THE S T A T E :- MR. S.C. 1 ********** 2 13/05/2010 The short fact of this case is that the petitioner was duly appointed on compassionate ground on 05.04.2002 by the District Establishment Committee. Subsequently, the service of the petitioner were terminated on the ground that the Circular of 1984 which was made applicable for the purpose of appointment of the petitioner on the compassionate ground was in fact replaced by the 1997 Circular and 2002 Circular wherein it was required that in case of a lady, seeking appointment on compassionate ground, she was required to have the educational qualification of being 8th Pass. Annexure 1 which is the proceeding of the District Establishment Committee by which the 2 petitioner was appointed as a Class-IV employee, which indicates that the District Establishment Committee had taken into account the notification no. 11946 dated 30.11.1984 at the time of making the appointment. It would be proper to refer to the notification aforesaid. Clause 6 of the said notification indicates that exemption was granted for women seeking appointment on compassionate ground, with respect to having the expertise on riding a cycle and they were required to be able to read and write within two years of their appointment. Subsequently, it came to the notice of the Committee and the District Magistrate, Gaya that in fact the educational exemption granted by the Circular of 1984 was set aside by the 1997 Circular and 2002 Circular wherein it was made essential for the female candidates seeking appointment on compassionate ground should be able to read and write and be at least 8th Pass. On the basis of the aforesaid circulars, the petitioner’s services were terminated. Learned Counsel for the petitioner submits that firstly the petitioner should be given an opportunity to show cause before being issued a letter terminating her services and secondly, Counsel refers to the decision of this Court to support his contention. It is technically true that the plea taken on 3 behalf of the State Government that the District Establishment Committee and the District Magistrate overlooked the Circulars of 1997 and 2002 and made appointment against the guidelines laid down by the State Government. As far as the role of the petitioner is concerned, she is not expected to look into the circulars and challenge the legality and correctness of her appointment. If there was a flaw in the consideration for appointment, it ought to have been taken into account by the members of the District Establishment Committee who are Incharge of making appointments on compassionate grounds. In the case of Naresh Ram vs. The State of Bihar & Others, reported in 2000 (2) PLJE 716, a question arose when the appointment on compassionate grounds was cancelled on the ground that it was made even before the father of the appointee had died in harness. The Court held that as the petitioner was entitled for appointment on compassionate ground, the Court referred the matter to the Director-in-chief, Health Services, Government of Bihar, Patna to consider for making appointment on compassionate ground, as it is not expected that the petitioner was to test the legality of his appointment. Similarly, in the case of Bivekanand Singh and Another 4 vs. State of Bihar & Others, reported in 2006 (4) PLJR 45, the Authorities had terminated the appointment on compassionate ground for the reason that the appointment was made beyond the limitation period. Again, the Court held the appointment on compassionate ground was made by the authorities and the incumbent was not supposed to test the correctness of his or her appointment. There appears to be no pleading that the petitioner had subsequently acquired the educational qualification as required under 1984, 1997 & 2002 Circulars. Since, one of the pleas is that the petitioner has not been issued a show cause notice before termination, I direct that the District Magistrate, Gaya and the District Establishment Committee, Gaya should issue a show cause to the petitioner and after hearing, pass an appropriate orders within a period of two months from the date of filing show cause reply by the petitioner in view of the observations of this Court, that if the petitioner has achieved the educational qualifications required for being appointed on compassionate ground, her termination should be set aside. The petitioner should not be terminated on technical ground as mentioned in the letter of termination. 5 In the result, the memo no. 1670/Estab. Gaya dated 21.08.2008 issued by the District Magistrate, Gaya is hereby quashed as far as it concerns the above named petitioner. This application is allowed to the extent indicated above. Anand ( Sheema Ali Khan, J.)