IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.230 of 2006 ARVIND KUMAR SINHA, son of Late Jugal Kishore Prasad, resident of Dariapur, P.S. Kadamkuan, District- Patna. …………………. Petitioner Versus 1. THE STATE OF BIHAR through Commissioner-cum-Secretary, Health Department, Vikash Bhawan, New Secretariat, Patna 2. Secretary, Health Department, Vikash Bhawan, New Secretariat, Patna. 3. Director-in-Chief, Health Services, Vikash Bhawan, New Secretariat, Patna 4. Under Secretary to Government, Health Department, Vikash Bhawan, New Secretariat, Patna 5. Deputy Director (T.B.), Sultanganj, Patna …………… Respondents. ----------- 5. 19.11.2008 I.A. No. 6210/ 2008 The interlocutory application has been filed for quashing of the order dated 26.7.2001 (Annexure-8 of the writ application) by which the representation of the petitioner including that of others for appointment on compassionate ground has been rejected by the Additional Secretary, Health Department, Government of Bihar. Learned counsel for the petitioner submits that the said order had already been annexed in the main writ application in which a prayer has been made for a direction upon the respondents to consider the case of the petitioner for appointment on compassionate ground but due to inadvertence no prayer had been made for quashing the said order which prayer, in fact, would be subsumed within the main prayer in the writ petition. On a consideration of the facts and circumstances of the case and the aforesaid submissions, the prayer for amendment is - 2 - allowed. I.A. No. 6210/2008 is accordingly disposed of. Heard learned counsel for the petitioner and learned counsel for the State. The petitioner has approached this Court for a direction upon the respondents to consider his case for appointment on compassionate ground after setting aside the rejection of his representation by order dated 26.7.2001 (Annexure-8) passed by the Additional Secretary, Health Department, Government of Bihar. The relevant facts of the case are that the father of the petitioner died while he was in service on 17.2.1989. The petitioner applied for appointment on compassionate ground. By order dated 29.4.1989 passed by Dr. A.A. Mallick, the then Deputy Director, Health Services (Tuberculosis), Bihar, Patna the petitioner was given appointment on compassionate ground clearly stating the fact regarding the death of his father while in service. Subsequently, a large number of cases of illegal appointment having been made by the said Dr. A.A .Mallick were discovered and accordingly termination orders were issued by the Government with respect to such illegal and irregular appointments. The matter traveled to this Court and by order dated 6.5.1994, a Division Bench of this Court in the case of Lalan Kumar Singh & Ors. Vs. State of Bihar & ors. and other analogous cases, reported in 1995(2) PLJR 309, dismissed the writ petitions. In the meantime on the basis of a notice to show cause published in newspaper on 4.7.1992 as to why the services of all such employees - 3 - be not terminated, the petitioner also filed his reply to the show cause stating the fact that he had been appointed on compassionate ground. However, by order dated 15.5.1993 the services of the petitioner were terminated with effect from 30.4.1993. Ultimately the petitioner approached this Court by filing CWJC No. 7038/1993 which was disposed of by order dated 25.8.1994 in terms of the earlier decision of this Court dated 6.5.1994 passed in the case of Lalan Kumar Singh’s case (supra). However, by the impugned order dated 26.7.2001 (Annexure-8) the claim of the petitioner along with that of other sixteen persons has been rejected on the ground that appointments had been made contrary to the Government Circulars and by the Deputy Director (Tuberculosis) whereas the competent appointing authority in such matter is the Director-in-Chief. It was further held that in terms of the clear opinion of the Personnel and Administrative Reforms Department, upon the death of illegally appointed employees their dependents cannot be given appointment on compassionate ground. Being aggrieved by the said order of rejection dated 26.7.2001, one of the aggrieved person, Arvind Choudhary, filed CWJC No. 12091/2001 in which after considering in detail the entire case this Court allowed the writ petition by order dated 18.5.2004 holding as follows:- “In the opinion of this Court the matter of the petitioner is required to be considered afresh because there was no lapse or fault on the part of the petitioner. When the petitioner had made a valid application the application was required to be considered by a person competent to take up the application. It is not expected of a person - 4 - seeking compassionate appointment that he would inform the appointing officer that the order should be passed by someone else. It is for the Officer to understand the scope of the authority and pass an order and in case he finds that he does not have the authority in the matter then he should refer the matter to a person who is competent to pass an order. If the respondent finds that the order could not be passed by the Deputy Director, Tuberculosis then they should re-examine the matter of the petitioner, rake the whole issue and pass a fresh order without being influenced by the fact that thousands of the appointments were quashed. It goes without saying that the petitioner’s appointment is not a part of the scandalous appointments made by Dr. Mallick but in fact he was seeking appointment on the ground that his father died in harness. Within four months from the date of the submission of a copy of this order the respondents competent authority shall take up the issue, reconsider the entire matter, give an opportunity of hearing to the petitioner and pass an order in accordance with law. It goes without saying that the respondents would not be allowed to raise the question of limitation because the facts show that the petitioner’s application was allowed he was appointed but on a second thought he was removed from services for none of his fault. Under the circumstances the respondents would be obliged to pass the order on the merits of the matter and in case they find that the petitioner is entitled to appointment on compassionate ground then orders shall be issued in his favour.” Learned counsel for the petitioner submits that the case of the petitioner stands on the same footing as that of Arvind Choudhary and the authorities of the State have committed serious error in rejecting his claim by coming to a conclusion that the dependents of an illegally appointed employee cannot be given appointment on compassionate ground. It is submitted that it is not at - 5 - all the case of the State that the father of the petitioner was appointed in an illegal manner and thus in terms of the prevalent circular of the State Government, the petitioner was entitled to be considered for appointment on compassionate ground and merely because there was some irregularity in the procedure adopted earlier that cannot be held against the petitioner. Learned counsel for the State could not justify the rejection of the representation of the petitioner on the ground mentioned therein since evidently the father of the petitioner himself was regularly appointed government servant and there is nothing on the record to show that his appointment was also tainted. On a consideration of the facts and circumstances of the case, this Court is of the view that the case of the petitioner stands on the same footing as that of Arvind Choudhary and is in complete agreement with what has been held by this Court by order dated 18.5.2004 in Arvind Choudhary’s case and also the directions contained therein. The writ application is accordingly allowed and the authorities are directed to consider and dispose of the case of the petitioner in accordance with the observations and directions of this Court by order dated 18.5.2004 in Arvind Choudhary’s case (supra). S.Pandey (Ramesh Kumar Datta, J.)