IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL No.724 of 2009 1. THE STATE OF BIHAR. 2. THE COMMISSIONER-CUM-SECRETARY, PRIMARY AND ADULT EDUCATION DEPARTMENT, NEW SECRETARIAT, PATNA, BIHAR. 3. THE DIRECTOR, PRIMARY AND ADULT EDUCATION DEPARTMENT, NEW SECRETARIAT, BIHAR, PATNA. 4. THE COMMISSIONER, BHAGALPUR DIVISION, BHAGALPUR. 5. DISTRICT EDUCATION OFFICER, BHAGALPUR. 6. THE DISTRICT SUPERINTENDENT OF EDUCATION, BHAGALPUR. ……………………………RESPONDENTS/APPELLANTS. Versus 1. MANI SHANKAR GOPAL, SON OF LATE RAMCHANDRA SINGH, RESIDENT OF C.C. MUKHERJEE ROAD, BESIDES DR. K. PRASAD, POLICE STATION-ADAMPUR, DISTRICT- BHAGALPUR. …………………………………PETITIONER/RESPONDENT. 2. SATYENDRA PRASAD SINGH, SON OF NOT KNOWN, DISTRICT EDUCATION OFFICER, BHAGALPUR, P.S. ADAMPUR, DISTRICT-BHAGALPUR. ………………………………RESPONDENT/RESPONDENT. ----------- For the State : M/s. Sunil Kumar Mandal. S.C.-XV and Arjun Prasad, A.C. to S.C.-XV. For the Respondent No.1 : M/s. Sharda Nand Mishra and Dhananjay Kumar Gupta, Advocates. ------------ PRESENT: THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE DR. RAVI RANJAN O R D E R ( 22 .03.2010) As per Dr. Ravi Ranjan,J:- This appeal has been preferred by the State of Bihar and others on being aggrieved by the order dated 2 21.1.2009 passed by a learned Single Judge in C.W.J.C. No.16465 of 2007. 2. Bereft of unnecessary details, short facts necessary for consideration of this appeal are as follows: The father of the writ petitioner- Respondent No.1 died in harness and thereafter he applied on 12.6.1989 for his appointment on compassionate ground. Appointment Letter, as contained in Annexure-‘1’ to the writ petition, was issued on 12.8.1992 by the Respondent-Appellant No.6 in the prescribed pay-scale of Matric Untrained Teacher. The writ petitioner-Respondent No.1 was posted at Primary School, Malmala, Sahkund. He remained in service and had enhanced his qualification upon undergoing teachers’ training. He, then, applied for grant of regular trained teacher pay scale from the date of result of publication of such training, i.e., 20.6.2005. However, vide letter dated 20.12.2006 issued by the Respondent-Appellant No.6 the Writ Petitioner-Respondent No.1 was directed to furnish full details regarding his appointment on compassionate ground specially when his mother was already working as Assistant Teacher. He submitted his show cause, however, vide order dated 21.11.2007, as contained in Annexure-‘17’ to the writ petition, 3 the service of the petitioner-Respondent No.1 was terminated with effect from 21.11.2007. The petitioner-Respondent No.1 filed C.W.J.C. No.16465 of 2007 for quashing the aforesaid order of termination. Thereafter, during the pendency of the said writ petition, two orders dated 30.5.2008 and 30.6.2008 were passed by the District Superintendent of Education, whereby the writ petitioner-Respondent No.1 was directed to deposit Rs.4,75,901/- and 11,34,332/- which were the complete salary drawn by the Writ Petitioner-Respondent No.1 during his service. In the writ petition, the Petitioner- Respondent No.1 had also alleged the malafide on the part of the District Superintendent of Education. It had been stated that in spite of the direction of the Deputy Director of Secondary Education, the District Superintendent of Education, Bhagalpur, without initiating any departmental proceeding had passed the order of termination after 15 years of his appointment . 3. We have heard the learned counsel appearing for the appellant-State as well as the Respondent No.1. 4. Learned counsel appearing on behalf of the State submitted that a grave error has been committed by the learned Single Judge while allowing the writ petition as the 4 service of the petitioner-Respondent No.1 was terminated on the ground that his appointment was in complete violation of the different Circulars issued by the State Government for the purpose of appointment on compassionate ground. Learned counsel drew attention of this Court towards the Circular dated 5.10.1991, which is contained in Annexure-‘A’ to the counter affidavit to the writ petition to show that Clasue-4 of such circular clearly stipulates that if both the husband and wife are in Government Service and, if one of them dies, in that case the benefit of appointment on compassionate ground could not be extended to their dependents. Learned counsel drew attention of this Court towards the Memo dated 12.7.1977, as contained in Annexure-‘1’ to the present appeal to impress upon this Court that Clasue-1 of the aforesaid Memo of the State of Bihar provides that before grant of appointment on compassionate ground it has to be established that any member of the family is not employed or in any manner earning sufficiently to maintain himself and his family. It had, thus, been submitted that since the mother of the writ petitioner- Respondent No.1 was already in Government Service as Assistant Teacher, there was no occasion for the authorities to extent such appointment on compassionate ground to the writ 5 petitioner-Respondent No.1. Thus, it had been urged that gross error has been committed by the learned Single Judge in allowing the writ petition. 5. Learned counsel appearing for the writ petitioner-Respondent No.1, on the other hand, contended that charges had been levelled against him that he had suppressed the fact that her mother was already employed as a Government Servant for the purpose of gaining employment on compassionate ground. All such exercise questioning his appointment was initiated when the Writ Petitioner- Respondent No.1 applied for grant of regular trained pay-scale from the date of publication of result of his Teachers’ Training dated 20.6.2005. Malafide has been alleged on behalf of the writ petitioner-Respondent No.1 by impleading the District Education Officer in personal capacity upon making specific allegation against him, however, no counter affidavit in personal capacity had been filed by such Respondent and there had been complete silence with regard to such allegations. Learned counsel submitted that in spite of the direction of the Deputy Director of Secondary Education, the District Superintendent of Education, Bhagalpur, without initiating a departmental proceeding had passed the order terminating the 6 service of Writ Petitioner-Respondent No.1 after completion of 15 years in service. Learned counsel drew attention of this Court towards the application filed by the petitioner for his appointment on compassionate ground which is contained in Annexure-‘2’ to the writ petition to demonstrate that in such application at serial no.1, the complete details of his family members had been provided by him including the fact that his mother, namely, Madhulata Sinha, was already an Assistant Teacher in a Primary School. Thus, it had been submitted that there had been no concealment on his part. In the same aforesaid application there had been endorsement by the then District Education Officer, while forwarding his application that the same is to be considered in the light of the Letter No.839 dated 23.6.1990. Learned counsel submitted that the aforesaid letter of the State Government had been brought on record, as contained in Annexure-‘28’. It was urged that in the aforesaid Memo/instruction of the State Government, it had clearly been clearly mentioned that the widow or the son who was not earning his/her livelihood could be considered for such appointment. Thus, it had further been contended that the aforesaid noting upon the application of the writ petitioner- Respondent No.1 shows that his application for compassionate 7 appointment was not considered in the light of the directions as contained in Circular No.13293 dated 5.10.1991 rather the Letter No.839 dated 23.6.1990 had been considered. Learned counsel had further placed reliance upon the Circular as contained in Annexure-‘A’ to the counter affidavit upon which the learned counsel for the State has also placed reliance. It had been stated that Clasuse-10 of such Circular indicated in a clear term that the Circular would have application in cases of appointment from the date of issuance of the same and in case of the Government employees having died before the issuance of this Circular, it would have no application. Further, the subsequent Circular dated 22.11.1991, as contained in Annexure-‘22’, had further clarified the issue clearly explaining the aforesaid Clause-10 and clearly indicating that in case the death had occurred prior to the issuance of the Circular dated 5.10.1991, the said Circular would not be applicable. It had further been stated that the issue of 1977 Circular, as contained in Annexure-‘1’ to this appeal had not been raised before the learned Single Judge. However, since the subsequent Circular of 1990 had been followed in course of appointment of the writ petitioner-Respondent No.1, the same would not be of very much relevance. 8 6. Upon consideration of the rival submissions and the facts and the circumstances of the case, we also find force in the submissions made on behalf of the Writ Petitioner- Respondent No.1. In the application form, as contained in Annexure-‘2’ to the writ petition, the forwarding note itself goes to indicate that the instruction, as contained in Memo No.839 dated 23.6.1990 as separately contained in Annexure- ‘28’ to the writ petition was being considered for the appointment and in view of Clause-10 to the Circular dated 5.10.1991 as well as the subsequent clarification, as contained in Annexure-‘22’ to the writ petition , thus, it had been held by the learned Single Judge that the same would not be applicable in such cases when the death of the Government employee had taken place prior to the issuance of such Circular. 7. Be that as it may, the application form of the writ petitioner-Respondent No.1 clearly indicates that he had not concealed the fact that his mother was already in Government Service and his appointment had been made on due recommendation by the District Establishment Committee. The writ petitioner-Respondent No.1 had remained in service for 15 years and no question was raised during such period. 9 Thus, it is not apparent from the record that any fraud has been committed by the writ petitioner-Respondent No.1 for getting appointment on compassionate ground. In that view of the matter, the learned Single Judge has rightly come to the conclusion that after remaining in service for so many years without any concealment of fact or fraud committed by the writ petitioner-Respondent No.1, he cannot be terminated in this manner and, thus, the orders as contained in Annexures- ‘17’, ‘18’ and ‘20’ had been held to be arbitrary as the order dated 20.11.2007 has also been passed without initiating any departmental proceedings in spite of the direction of the Deputy Director of Secondary Education and other subsequent orders are consequential thereof. 8. We also do not find any reason warranting interference by this Court in this intra-court appeal. 9. As a result, this appeal fails and is, accordingly, dismissed. However, there shall be no order as to costs. I agree. (Dipak Misra, C.J.) (Dr. Ravi Ranjan, J.) Patna High Court. The 22nd of March, 2010. Pradeep Srivastava/N.A.F.R.