IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3058 of 2003 WASI ALAM son of Late Mohmood Alam, resident of Mohalla- Chik Toli, Dumraon, District Buxar. Working as a Orderly at Phularhi Project Balika UcheVidyalaya, Sandesh, District- Bhojpur, Ara… Petitioner. Versus 1. THE STATE OF BIHAR 2. The District Collector, Ara 3. The District Education Officer, Bhojpur, Ara. 4. The Assistant Head Master, Phularhi Project Balika High School, At and P.O. Sandesh, District- Bhojpur at Ara…. Respondents. ----------- 4. 04.08.2010 Heard learned counsel for the petitioner and learned counsel for the State. The prayer of the petitioner in this writ petition which was filed on 26.3.2003 reads as follows; “(i) For issuance of a writ of certiorari or any other appropriate writ, order or direction for quashing the impugned order published in News Paper “Dainik Jagran’ dated 17.2.2003 passed by the District Education Officer, Ara, Bhojpur by which order the service has been most arbitrarily terminated and also gave the direction for recovery the salary which has been paid to the petitioner during the period of his service without providing of opportunity of hearing to him. (ii) For issuance of a writ of mandamus or any other appropriate writ, order or direction commanding the respondents authorities to reinstate the petitioner with all the consequential and monetary benefits as if he had not been terminated from service.” Counsel for the petitioner has submitted that 2 the petitioner was appointed on compassionate ground on 1.8.1990 by an order of the District Education Officer, Bhojpur, Ara vide Annexure-2 to this writ petition. He therefore would submit that once such appointment was made, the petitioner could not have been terminated from service without giving an opportunity of hearing and/or serving the order of the termination. He has also submitted that in fact the petitioner came to know of such termination by newspaper publication made in Dainik Jagaran on 17.2.2003 and therefore when he could not get the copy of the said order, he had filed this writ petition annexing the newspaper item for its being quashed. The respondents have not filed any counter affidavit but an earlier counter affidavit sworn and kept in the record of the standing counsel would go to show that the appointment of the petitioner made on compassionate ground was found to be illegal inasmuch as there was no recommendation by the District Compassionate Appointment Committee and the District Education Officer had in fact made the appointment of the petitioner waiving the requirement as laid down in the Government Circular dated 5.10.1990. 3 This Court, accordingly, had gone into the appointment letter of the petitioner which for sake of convenience and clarify is quoted hereinbelow; ^^dk;kZy; ftyk f’k{kk inkf/kdkjh] HkkstiqjA dk;kZy; vkns'k bl dk;kZy; ds Kkikad 931 fnukad 30-3-90 dks fujLo djrs gq;s Jh o'kh vkye dh fu;qfDr QqykMh izkstsdV ckfydk mPp fon~;ky; esa vkns'kiky ds fjDr in ij fofgr osrueku 775&12&955 n0v0 14&1025 esa djrs gq;s ;ksxnku dh frfFk ls inLFkkfir fd;k tkrk gSA vuqdaik dh fu;qfDr izfdz;k dks leatu u djus ij fdlh le; lsok lekfIr dh dkjZokbZ dh tk ldrh gSA g0 ftyk f'k{kk inkf/kdkjh] Hkkstiqj vkjk Kkikad 1679 fnukad 01&08&90** From the content of the said appointment letter, two things become clear that earlier appointment of the petitioner was made by some District Education Officer vide Office Memo No. 931 dated 30.3.90. This order has not been produced by the petitioner though he was aware of the same inasmuch as his representation vide Annexure-3 clearly mentions about such appointment of the petitioner. The suppression of the first appointment letter and a clear mention of the same condition in the aforesaid second appointment letter dated 1.8.1990 that the 4 appointment of the petitioner could be terminated if the procedure for compassionate appointment was not undergone therefore is a good enough material to suggest that at no point of time the case of the petitioner was actually placed before the Bhojpur District Compassionate Appointment Committee. At this stage, counsel for the petitioner has placed before this Court a photo copy of the proceedings of the District Compassionate Appointment Committee of Buxar District dated 4.8.92 which in while considering case of the petitioner it was recorded as follows : - ^^Lo0 egeqn vkaye] vkns'kiky jkt mPp fo|ky;] Mqejkao budh e`R;q lsok dky esa fnukad 22-11-85 dks gqbZ gSA buds f}rh; iq= olh vkye vuqdEik ds vk/kkj ij fu;qfDr gsrq vksonui= fnukad 2-2-86 dks fn;k gSA lk{kkRdkj ds le; olh vkye us cryk;k fd budh fu;qfDr iwoZ esa gh osykjh ¼lUns'k½ esa gks pqdh gS vr% lfefr muds vkosnu dks vLohd`r djrh gSA** It would thus become clear from the aforementioned decision that the application filed by the petitioner for appointment on compassionate ground on 22.2.1986 for the first time was placed before the District Compassionate Appointment Committee of Buxar District 5 in the meeting held on 4.8.92 wherein the petitioner was also called for interview but he himself had taken a plea that he had already been appointed in Belari (Sandesh) and therefore the Buxar District Compassionate Appointment Committee had rejected the application for compassionate appointment of the petitioner. From the facts noted above, it would be thus clear that the procedure meant for compassionate appointment as laid down by the Government Circular was never followed in the case of the petitioner and one Mr. T. P. Singh, the then District Education Officer, Bhojpur on his own had appointed the petitioner by putting a unique condition that if the condition of compassionate ground would not be completed in the case of the petitioner his services will be terminated. This Court would fail to understand under which authority he had made such conditional appointment of the petitioner. This Court however has been informed that a departmental proceeding against Mr. T.P. Singh the then D.E.O., Bhojpur was drawn for making such illegal appointment of the petitioner but then the counsel for the State has no instruction as to what final order was passed 6 against him. One thing is however very clear that the father of the petitioner had died on 22.11.1985 in harness holding the post of clerk in Rajkrit High School Dumraon and he was a regular employee and therefore the petitioner being his son was entitled for consideration for this appointment on compassionate appointment provided he had fulfilled the requirement within a period of five years, the period of limitation at that point of time in the government circular on the subject. If the petitioner, however, could manage his appointment through back door on the compassionate ground by taking District Education Officer into collusion, he had to ultimately suffer by termination of his service. The petitioner infact was removed from service in the year 2003 but then he was well aware of such illegality in his appointment because his payment of salary was stopped in the year 2001 and at that point of time the petitioner had explained his case as would appear from his representation wherein he could not justify his appointment by placing any resolution of Bhojpur District Compassionate Appointment Committee. This Court would therefore not 7 find any error in the decision terminating the service of the petitioner but then the question would that had the petitioner been not appointed in the year 1990 even by a back door method, the District Compassionate Appointment Committee, Buxar before whom the case of the petitioner was placed in 1992 could have recommended the case of the petitioner for his appointment on compassionate ground instead of rejecting it only on the ground of his earlier appointment and his appointment could have been also made in Buxar District. In that view of the matter, this Court would direct the Collector of Buxar District to place the case of f the petitioner for his appointment on compassionate ground before the District Compassionate Appointment Committee as a fresh candidate and the Committee after giving relaxation of age to the petitioner if it would find the petitioner otherwise fulfiling the required terms and conditions prescribed in the Government Circular for such compassionate appointment, the District Compassionate Appointment Committee shall make a recommendation for appointment of the petitioner on any Class IV posts in the District of Buxar. Such appointment of the petitioner 8 would be a fresh appointment with no benefit of backwages and/or any benefit of his earlier appointment made by the D.E.O., Bhojpur. The petitioner is therefore given liberty to file a fresh representation to the Collector of Buxar District who would initiate the process of the case of appointment the petitioner and get a final decision taken by the Committee strictly in accordance with law. It is however made clear that the case of the petitioner will not be rejected on the ground of his becoming overage. Such exercise must be completed by the District Compassionate Appointment Committee within a period of three months from the date of receipt of a copy of this order and the petitioner’s fresh appointment in any establishment and/or school on a Class-IV post may be made by the Controlling Authority if there be a recommendation in his favour by the District Compassionate Appointment Committee, Buxar. With the aforementioned observation and direction, this writ petition is disposed of. kanchan (Mihir Kumar Jha, J.)