IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5852 of 2004 1. SMT. NEELAM JHA 2. BHAIYA SATYAM BHARDWAJ 3. BHAIYA SHIVAM BHARDWAJ---------PETITIONERS. Versus THE STATE OF BIHAR & ANR . ----------- For the Petitioners:- Mr. Dilip Kumar Tiwari, Mr. K.K.Tiwari & Mr. Amit Kumar Anand, Advocates For the State:- Mr. A. Amanullah, G.P.IV 11 18.03.2011 Petitioners in this writ application are legal heirs of late Kumar Manoj and their prayer is for quashing of an order contained in Memo No. 663 dated 26.5.2000 issued by the Regional Deputy Director of Education, Tirhut Division Muzaffarpur, whereby late Kumar Manoj was terminated from his service and a direction was issued for recovery of amount paid to him as salary. Petitioner No.1 Smt. Neelam Jha is the mother of late Kumar Manoj, Bhaiya Satyam Bhardwaj (Petitioner No.2) and Bhaiya Shivam Bhardwaj ( Petitioner No.3) are minor sons of late Kumar Manoj. Further prayer of these petitioners is for directing the respondents for making payment of all consequential benefits for which late Kumar Manoj would have been entitled, in case he would have been in service. It has also been prayed by the petitioners for a direction to the respondents for sanctioning family pension to minor sons of Late 2 Kumar Manoj ( Petitioner nos. 2 and 3) and for compassionate appointment of either petitioner no.1 who is mother of late Kumar Manoj or for compassionate appointment of any son of late Kumar Manoj, after they will attain majority. The facts of the case as disclosed in the writ petition are as follows:- Late Kumar Manoj, son of petitioner no.1 and father of petitioner nos. 2 and 3, was physically handicapped. He filed an application before the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur ( Respondent No.2), after coming to know that large number of Class III posts are lying vacant and for filling up those posts, vide letter No. 10905 dated 16.9.1992 the respondent no.2 had requested the Employment Exchange for recommending names of eligible candidates. Some names, including the name of Late Kumar Manoj was recommended by the Employment Exchange and subsequently on 30.12.1992, local advertisement, inviting applications for appointment on Class III posts, was also published. Kumar Manoj also filed his application and requested for considering his case, since he was physically handicapped person having 3 other requisite qualification for the post. Appointment letters were issued in favour of several persons but name of Kumar Manoj was not considered. He again filed an application for his appointment against post, reserved for physically handicapped person. Respondent no.2 asked Kumar Manoj to appear before the Divisional Establishment Committee for interview on 15.6.1995. The son of petitioner No.1 Kumar Manoj appeared before the Divisional Establishment Committee on 15.6.1995 and Divisional Establishment committee vide Memo No. 12 dated 26.6.1995 made a recommendation for his appointment on the post of Clerk. Appointment letter was issued by Respondent no.2 for appointment of Kumar Manoj on the post of Clerk, in the Office of the District Inspectress of Schools, Hajipur. He joined on this post on 28.6.1995. Thereafter he was shifted to the office of District Education Officer, Vaishali. An order contained in memo no. 2246 dated 23.12.1996 was passed for payment of salary of his salary. Later on, an inquiry was conducted for examining the genuineness, legality of the appointment of Kumar Manoj. He was asked to produce his appointment letter and other related documents before the Deputy 4 Director Secondary Education on 4.10.1997. On account of this verification and enquiry, 70 persons were terminated vide order contained in memo Nos. 4812 and 4813 dated 18.11.1997 as their appointments were found illegal, but so far Kumar Manoj is concerned, his appointment was found to be valid and as per the policy decision of the Government. He was allowed to continue on his post. Kumar Manoj continued to work and receive salary. Specific case of the petitioner no.1 is that the then District Education Officer, Vaishali had some personal malice against the husband of petitioner no.1, who had also worked as cadre of Bihar Education Service prior to his retirement. Due to his old grudge, the District Education Officer, Vaishali started disturbing the son of petitioner no.1. He issued a letter seeking explanation from Kumar Manoj and also passed an order stopping payment of his salary. This order was challenged by him in CWJC No. 5245 of 1999. The writ application filed by Kumar Manoj was still pending, in the meantime, the District Education Officer informed the Director Secondary Education to issue a direction for terminating Kumar Manoj from his service. Repeated request was made 5 by the District Education Officer, Vaishali to respondent no.2 for terminating the service of Kumar Manoj, on the ground that his appointment was illegal as it has been made without following the procedure for legal appointment. Finally, under the pressure of District Education Officer, Vaishali, respondent no.2 issued an order of termination against Kumar Manoj. Prior to issuance of termination order, respondent no.2 asked the son of petitioner no.1, for appearing before him on 17.5.2000, for verification of his appointment letter, examine the validity of his appointment. Kumar Manoj appeared before respondent no.2 on 17.5.2000 and asked for fifteen days time for production of appointment letter, since it was with his lawyer. Though, prayer of Kumar Manoj was not rejected but all of sudden, vide order contained in memo no. 663 dated 26.5.2000, termination order was issued by respondent no.2 against Manoj Kumar with the direction that money paid as salary be recovered from him. The son of the petitioner No.1, by that time had been completely harassed, and could not further sustain this mental pressure. He became so depressed that he committed suicide. His wife also committed suicide on 12.2003 6 out of helplessness. Both of them died, leaving behind petitioner nos. 2 and 3, their minor sons, aged about 14 years and 12 years. CWJC No. 6940 of 2000 filed by Kumar Manoj was still pending, in which petitioner no.1 filed IA No. 851 of 2004 was filed by petitioner No.1 for her substitution, but by order dated 10.3.2004 the writ application was dismissed with a liberty to legal heirs of Kumar Manoj, for filing another writ application. In the light of order dated 10.3.2004 passed in CWJC No. 6940 of 2000, present writ application has been filed by petitioners, legal heirs of Late Kumar Manoj. Counsel for the petitioners has submitted that son of petitioner No.1 and father of other two petitioner’s had been terminated on the ground that appointment was made without following the procedure prescribed by the Department and rules of reservation roaster. Procedure of appointment prescribed in letter No. 16440 dated 3.12.1980, issued by Personnel and Administrative Reforms Department had not been followed. Counsel for the petitioner submits that so far appointment of Class III ministerial staff in Education Department at Divisional level is concerned 7 Notification under proviso to Article 309 of the Constitution of India has been issued by the State Government vide notification no. 3435 dated 13.8.1974, through this notification the State Government framed service conditions rule of the ministerial staff of the Education Department at divisional level and its attached office. As per this notification service conditions of clerks of the education department at the Divisional level has been framed. As per this Rule the Regional Deputy Director of Education was the appointing/controlling authority and the appointment was to be made on the recommendation of the Divisional Establishment Committee, according to the procedure issued by the Government, time to time in this regard. Counsel for the petitioner submits that till the date and also at the time when the petitioner’s son was appointed, there is no other procedure or rule for appointment on Class III employees of the Education Department at the Divisional Level. It has also been submitted by the petitioners’ counsel that following same procedure, several other Clerks were appointed, pursuant to the recommendation of the Divisional Establishment Committee, issued under the signature 8 of Regional Deputy Director of Education Tirhut Division Muzaffarpur. Their names had also been recommended by the Employment Exchange in pursuance to the requisition made by the Regional Deputy Director of Education. They were also terminated from their service on the similar grounds that they were appointed without following the procedure for appointment. In CWJC No. 5003 of 1999 where a similar issue fell for consideration, and the Court arrived at the conclusion that calling of names from the Employment Exchange is also one of modes of inviting application for appointment, and no fault could be found to the same. Regarding non compliance of roaster clearance etc, it was held that it was nothing but administrative deficiency and for latches on the part of the appointing authority, persons appointed cannot be faulted with. Counsel for the petitioner has also submitted that the judgment passed in CWJC No. 5003 of 1999 was affirmed by the Apex Court in SLP No.6077/2001 dated 14.9.2001, which indicated that procedure following which writ petition in CWJC No. 5003/1999 as well as Manoj Kumar had been appointed was not illegal. There was no ground for termination of Kumar 9 Manoj. So far circular issued by the Department of Personnel and Administrative Reforms is concerned, it had no application in appointments on Class III posts in the Muffasil offices/ or at Divisional Level, as such if appointments were made without following the procedure in Letter No. 16440 dated 3.12.1980, appointment could not be held to be illegal. The circular of the Administrative Reforms cannot have an overriding effect upon statutory rules issued in exercise of the power under Article 309 of the Constitution of India. The statutory rules provided that Divisional Level appointment on Class III posts will be made by the Divisional Level Committee constituted under the Chairmanship of RDDE. Appointment letters can be issued under the signature of RDDE on recommendation of the Divisional Level. Following this procedure, appointments letter was issued in favour of Manoj Kumar. This issue has also been considered in several similar decisions including in case of Bharat Ram & ors. Vs. State of Bihar and ors.(CWJC No. 4333 of 2000). In all these decisions it has been held that in view of the rules framed in exercise of the power under Article 309 of the 10 Constitution of India, having statutory force, cannot be diluted or interfered with merely by administrative circular. The question of applicability of any administrative circular including the circular dated 3.12.1980 would not have any application in the facts of the present case. If that be so, there would be no illegality in the appointment of writ petitioner, especially in absence of any assertion with regard to non compliance of the rule framed under Article 309 of the Constitution of India. Considering the submissions made by the petitioners and reference of several cases like CWJC No. 5003 of 1999 and CWJC No. 4333 of 2000 having identical facts, I find substance in submission of petitioner. So far the legality of the appointment of petitioner’s son Kumar Manoj is concerned. He was appointed on the basis of an appointment letter issued by RDDE on recommendation of Divisional Level Establishment Committee, following the procedure as provided under statutory rule. On two occasions enquiry was conducted by the competent authority who examined legality of the appointment of Kumar Manoj. On both the occasions, authorities concerned were satisfied so far validity of his appointment is 11 concerned. Subsequently, he was terminated on the ground that the procedure for appointment as provided in circular issued by the Personnel and Administrative Reforms Department, dated 3.12.1980 was not followed. Other ground was that then Regional Deputy Director of Education could not have issued appointment letter. Both these grounds have been held to be not sufficient for termination in the decision referred by the petitioners. In these decisions it has been held that if the statutory rule relating to procedure for appointment was followed, there was no illegality in the appointment. I find that the appointment of the son of the petitioner No.1, Kumar Manoj, was also identical and the prayer relating to the quashing of the order of termination vide memo no. 663 dated 26.5.2000 issued by respondent no.2 is fit to be quashed. The termination order is thus quashed. On account of this, order of recovery, if there had been any recovery that has to be refunded by the respondents in favour of the writ petitioners. The writ petitioners are also entitled for other monetary benefits, for which Kumar Manoj would have been entitled in case he would have remained in service. 12 But, so far the prayer of the petitioner regarding compassionate appointment is concerned, it cannot be allowed, considering the fact that Manoj Kumar did not dye his natural death. He committed suicide. Suicide is an offence under the Penal Code. Petitioner no.1 is the mother of Kumar Manoj, she must have crossed the age of appointment on Class IV posts. Other two petitioners were minor on the date, Kumar Manoj died, as he committed suicide. The circular of the State Government relating to Compassionate appointment provides limitation of five years, for filing any application for compassionate appointment and for consideration of compassionate appointment. Both the petitioner nos. 2 and 3 were minor on the date of the death of their father. More than five years have passed, Limitation is also one of the grounds for not considering the prayer of the petitioners, for a direction relating to compassionate appointment either Petitioner nos. 2 and 3. However, they have liberty to represent their case before respondent no.2 for allowing them family pension, since the date of death of their father. In case any such representation is filed by petitioner nos. 2 and 3, the respondent no.2 will consider and dispose it off 13 within eight weeks, in accordance with law. The writ application is disposed off. A. Kumar ( Mridula Mishra, J.)