IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12044 of 2006 Madan Kumar Thakur @ Thakur, son of late Rameshwar Thakur, resident of Village Dhokrahan, P.S. Manjhaulia, District West Champaran, at present posted as Assistant Teacher, Govt. Basic School, Bhagerwa Ratanmala, Manjhaulia, District West Champaran. ------- Petitioner Versus 1. The State of Bihar. 2. The Regional Deputy Director of Education, Tirhut Division, Muzaffarpur. 3. The District Education Officer, West Champaran. ------- Respondents ----------- 2 1.7.2011 Heard learned counsel for the petitioner and counsel for the State. Assailing the correctness of the impugned order dated 7.7.2006, whereby and whereunder, the compassionate appointment of the petitioner made earlier on 29.1.1994 has been cancelled by the competent authority, Mr. Tej Bahadur Singh, learned senior counsel for the petitioner, had initially questioned the same by placing reliance on the judgment of learned single Judge of this Court dated 29.8.2006 in CWJC No. 11181 of 2005 Bivekanand Singh Vs. State of Bihar (Annexure-11) but then when it was brought to his notice by the learned counsel for the State that the said judgment of the learned 2 single Judge dated 29.8.2006 has since been overruled by the Division Bench by order dated 3.12.2008 in LPA No. 286 of 2007, he had frankly conceded that the petitioner will have no case on merit. Learned counsel, however, has now sought to place reliance on the order of the Apex Court in the case of Syed Khadim Hussain Vs. State of Bihar & Ors. reported in 2006(9)SCC 195 to contend that the Apex Court has laid down law that the age of the applicant, seeking appointment on compassionate ground, has to be judged on the date such application is being considered by the authority for appointment on compassionate ground. In the considered opinion of this Court, neither the ratio of the said judgment of the Apex Court in the case of Syed Khadim Hussain (supra) is to the aforementioned effect nor the same can be accepted in view of the specific policy of the Government of Bihar as with regard to the appointment on compassionate ground. It has to be noted that the policy of the State Government of Bihar contained in Circular dated 5.10.1991 3 prescribes that a dependent, in order to be appointed on compassionate ground, must be eligible in all respect and one of such clause of eligibility is with regard to his age for entry in Government service. Thus, a dependent of a deceased Government servant while seeking employment on compassionate ground, if he being a minor is under age but would attain majority in order to become eligible within a period of limitation of five years under the policy, he may still be considered to be eligible but, if a person continues to be minor either on the date of the death of the bread earlier/deceased Government servant or even within next five years in which such application could have been filed seeking appointment on compassionate ground, he would be ineligible for appointment on compassionate ground. That is how, the law was settled by this Court in a Division Bench Judgment of this Court in the case of Anil Kumar Singh Vs. The State of Bihar & Ors. reported in 1993(1)PLJR 414 and has been subsequently reiterated in a large number of decisions of this Court. 4 In the case of Syed Khadim Hussain (supra), the position was entirely different. In that case, admittedly the wife of the deceased employee had filed her application within the prescribed period of time and that was rejected on a technical ground of its being not in prescribed proforma. Subsequently, the son on the deceased employee Syed Khadim Hussain had filed an application after becoming major and that was rejected on the ground that it was time barred in view of limitation of five years under the policy. The Apex Court, considering the fact that there was already an application of a family member of the deceased in form of the wife requesting for her own appointment on compassionate ground, had passed an order directing consideration of the son for his appointment which can be at best held to be a direction in terms of Article 142 of the Constitution of India, inasmuch as, the expression used in the last paragraph of the judgment is “This is a fit case where appellant should have been considered in her place for appointment”. 5 (underlining for emphasis) It would thus be clear that the Apex Court in the case of Syed Khadim Hussain did not lay down any law as with regard to the date of consideration of the application to be the relevant criteria for examining the qualification of age of a person seeking compassionate appointment. As a matter of fact, in the present case, the father of the petitioner had died on 18.3.1988 at a point of time when under the policy of the Government of Bihar was in the circular dated 12.7.1977, the period of limitation for filing application for appointment on compassionate ground was only two years. In fact, the period of limitation of five years came to be introduced sometime in the year 1989 and, therefore, an application for appointment on compassionate ground on account of death of the father of the petitioner in harness could have been filed by any of the dependent only up to 17.3.1990. The petitioner, at the time of death of his father, was aged about twelve years one month and one day and, therefore, 6 he did not become major in next two years, which was the period of limitation prevailing on the date of the death of the father. In fact, even if the benefit of five years of limitation is extended in the case of the petitioner even then he would not become major, inasmuch as, he would still be seventeen years one month on 17.3.1993 the date on which the period of limitation had expired for filing an application in terms of 1989-91 circular. In that view of the matter, when there is no provision also for condoning the minimum age limit under the policy of the compassionate appointment unlike a provision for condonation of maximum age limit, no one had the authority or jurisdiction to appoint the petitioner in violation of the Government policy for compassionate appointment. Accordingly, such appointment of the petitioner made on the basis of an application dated 24.3.1993 and that too without following the prescribed procedure of sending the application for recommendation of the District Compassionate Appointment 7 Committee as required under the policy was a blatant illegal action and the consequential order of the Regional Deputy Director of Education, Muzaffarpur, who, on his own had appointed the petitioner on 29.1.1994 without following the prescribed rules was itself wholly without jurisdiction. The very fact that the petitioner got appointment on Matric Untrained post of Teacher in the year 1994 would be reflective of the aforesaid illegal action of the Regional Deputy Director of Education, inasmuch as, after enforcement of the 1993 Statutory Rules, no untrained person could have been appointed as a Teacher without condonation of the statutory qualification laid down for the post of Teacher. All these illegalities and infirmities, individually or collectively, would go to show that the petitioner was bestowed favour at the time of his appointment on compassionate ground even though being wholly ineligible for appointment on any post much less on the post of a Teacher in a Government Primary School. When such a rank illegal appointment was 8 noticed by the authority, they had sought follow the principles of natural justice and had issued a show-cause notice on 22.10.1997 not only to the petitioner but also to other similarly situated persons. The petitioner and others however successfully continued in service by extending their length of service in the name of compliance of principle of natural justice on one ground or another. In fact, such illegality in the appointment of the petitioner had came to be noticed within three years but, then he had continued for another nine years though he was not entitled to continue even for a day. In that view of the matter, this Court would also not find any merit in the submission of Mr. Singh that the petitioner’s appointment on compassionate ground could not have been cancelled as he had continued for a period of over twelve years. Nine of the twelve years was only consumed by the petitioner in the name of filing show-cause reply etc. and, therefore, he cannot take advantage of his own fault. In any event, once this Court would notice that the main ground on which the 9 petitioner had based his case being the judgment of the learned single Judge in the case of Bivekanand Singh (supra) which itself been overruled by the division bench, this Court will have no option but, to hold that this writ application has no merit. Appointment on compassionate ground, being an exception to the mandate of Article 14 & 16 of the Constitution, has to be strictly made in terms of the policy and any person, who is not eligible or would not qualify under the policy, cannot be appointed on compassionate ground. That being so, this application is absolutely misconceived and is, accordingly, dismissed. Rsh (Mihir Kumar Jha, J.)