IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4270 of 2007 Mani Kant Raut, son of Anandi Raut, resident of Chhoti Kelabari, Sadar Hospital Road, P.S. Kotwali, District Munger … Petitioner Versus 1. The State Of Bihar through Secretary, Health Department, Bihar, Patna 2. The District Magistrate, Munger, District Munger 3. Civil Surgeon cum Chief Medical Officer, Munger District Munger 4. Additional Chief Medical Officer, Munger, District Munger … Respondents ---------------------------------- 6. 25.8.2011 Having heard counsel for the parties and taking into account that the petitioner did not qualify for appointment on compassionate ground in view of the specific restrictions imposed in the Government policy dated 5.10.1991, relevant portion whereof reads as follows: ^^funs'kkuqlkj dguk gS fd vc rd lsokdky esa fdlh ljdkjh lsod dh e`R;q gksus ij e`r ljdkjh lsod ds vkfJrksa dks oxZ &3 ,oa oxZ &4 ds inksa ij fu;qfDr gsrq dkfeZd ,oa iz'kklfud lq/kkj foHkkx }kjk fuxZr lHkh vuqns'kksa dks voØfer djrs gq, ljdkj us ;g fu.kZ; fy;k gS fd vuqdEik ds vk/kkj ij fu;qfDr dh izfØ;kvksa dks bl izdkj ljy ,oa izHkkodkjh cuk;k tk;s fd ljdkjh lsod ds e`R;ksijkUr mlds vkfJr dks fcuk foyEc ds oxZ &3 ds dfri; inksa vFkok oxZ 4 ds inksa ij fu;qfDr fey ldsA bl mn~ns'; ls ljdkj us fuEukafdr fu.kZ; fy;k gS& 1½ fdudk p;u gks ldrk gS & ¼d½ vuqdEik ds vk/kkj ij fu;qfDr dk ykHk oSls e`r ljdkjh lsod ds ,d gh vkfJr dks vuqekU; gksxk ftudh e`R;q lsokdky esa gqbZ gSA ¼[k½ bl gsrq ljdkjh lsod mls gh ekuk tk;sxk ftldh fu;qfDr] Lohd`r in ds fo:) fof/kor dh xbZ gksA ¼x½ lsokdky esa e`r ljdkjh lsodksa ds vkfJrksa dks gh vuqdEik ds vk/kkj ij fu;qfDr dh tk ldrh gSA vkfJr ds vurxZr dsoy iq=] vfookfgr iq=h rFkk iq= dh fo/kok iRuh lfEefyr jgsxhA nÙkd iq=] nkekn] Hkrhtk vkfn dks vkfJr ugha ekuk tk;sxkA ¼?k½ vuqdEik ds vk/kkj ij fuEufyf[kr izkFkfedrkvksa ds vuqlkj muds vkfJr dh fu;qfDr dh tk;sxhA (i) e`r lsod dh iRuh (ii) iq= (iii) vfookfgr iq=h (iv) iq= dh fo/kok iRuh ¼M-½ ;fn ifr iRuh nksuks ljdkjh lsok esa gks vkSj fdlh ,d dh e`R;q gks tk;s rks oSlh fLFkfr esa vuqdEik ds vk/kkj ij fu;qfDr dk ykHk muds ifjokj ds fdlh vkfJr dks ugha feysxkA ¼p½ ;fn dksbZ efgyk ljdkjh lsok esa gks vkSj muds ifr fdlh ljdkjh lsok esa dk;Zjr ugha gksa] rks efgyk ljdkjh lsod dh e`R;q mijkUr muds ifr dks vuqdEik ds vk/kkj ij fu;qfDr dk 2 ykHk izkIr gks ldsxkA 2½ fdudk p;u ugha gks ldrk& fuEukafdr dksfV;ksa esa ls fdlh Hkh dksfV esa vkus okys O;fDr dk vkosnu izkjfEHkd rkSj ij gh vLohd`r dj fn;k tk;sxk] ;fn [kaM ß[kÞ vkSj ßxÞ ds laca/k esa dksbZ izfrdwy 'kiFk&i= ugha fn;k x;k gks A ¼d½ ;fn vkosnd ds izLrkfor in gsrq ljdkj }kjk fu/kkZfjr vgZrk izkIr ugha gks A ijUrq efgyk ds ekeys esa lkbZfdy pykus dh vgZrk dks {kkUr le>k tk;sxk A ¼[k½ ;fn vkosnd dks fdlh laKs; vijk/k ds vijk/kh ds :i esa U;wure 6 ekg ds dkjkokl dk n.M gqvk gS A ¼x½ ;fn vkosnd ij ,slk eqdnek U;k;ky; ds fopkjk/khu gks ftlesa mUgsa e`R;qn.M vFkok lkr o"kZ ls vf/kd ds dkjkokl dh ltk fn;s tkus dh lEHkkouk gks] vFkok mDr okn ds fuLrkj gksus ij vkosnd dks 6 ekg vFkok mlls vf/kd dk n.M fn;k tk;s** (underlining for emphasis) this Court would not find it a fit case for interfering with the impugned order dated 5.8.2006 terminating the petitioner's services by canceling his illegal appointment on compassionate ground made on 13.8.2005. Admittedly the father of the petitioner was alive and was in service of the State Government when the mother of the petitioner had died on 5.10.2000. The petitioner, therefore, did not qualify for his appointment on compassionate ground even on 13.8.2005 in view of aforesaid specific restrictions in the underlined part of the government policy contained in Circular dated 5.10.1991. The submission of the learned counsel for the petitioner that when he became major in the year 2002 and thus entitled for being considered for appointment on compassionate ground and had filed an application some time in the year 2002, the father of the petitioner had no longer continued in service so as to attract the aforementioned restrictions for being denied such appointment is to be also only noted for its being rejected. The 3 policy in the aforesaid Circular dated 5.10.1991 as underlined above talks of a date on which the death of one of the spouses takes place and if on that day the other spouse is still surviving and continuing in government service, no right can be said to have accrued to the dependents to claim appointment on compassionate ground on the ground of death of one of the spouses. The aforesaid policy is very clear in its scope and unambiguous in its application. It is also well settled that any compassionate appointment being an exception to the mandate of Articles 14 and 16 of the Constitution of India has to be made strictly in accordance with the policy and the petitioner, therefore, when he was not eligible to be appointed on compassionate ground, in view of the aforementioned restrictions in the policy, could not have been retained in government service merely because he had continued in service for a period of one year approximately. The next submission of the learned counsel for the petitioner that he had not suppressed any fact when he had filed his application for appointment on compassionate ground also will not in any way change the Government policy, inasmuch as it is at field level that some one in the office of In-charge Medical Officer including the Head Clerk and Clerk had misused their power while recommending the case of the petitioner by not properly scrutinizing the application filed by the petitioner. For that purpose they were also later on subjected to a show cause notice. Though the learned counsel for the State is not aware of its ultimate result but then such illegality in the appointment of the petitioner can not 4 be cured either on account of his continuation in service for a period of one year and/or no punishment inflicted on his supported holding the post of Head Clerk and Clerk in the office of Incharge Medical Officer who himself no power except recommending the case of the petitioner. This Court, however, would find that as the respondents themselves have discovered that two clerks were responsible in getting the petitioner illegally appointed by making a wrong recommendation despite the petitioner being disqualified under the policy, it would direct the concerned Civil Surgeon of Munger District to ensure that a final order of exemplary punishment for such misconduct is passed also against Sita Sharan Singh, the Head Clerk of the office of Civil Surgeon, Munger and as also Laxmi Narayan Yadav, a Clerk, who were earlier given show cause notice on 7.7.2006 vide Annexure ‘D’ to the counter affidavit. Counsel for the petitioner has also submitted that when the petitioner was already appointed and such appointment letter had contained certain conditions, non-compliance of which alone could render him unfit to be continued in service, the services of petitioner could not have been dispensed with on any other ground. Attractive though the aforementioned submission may be but when this Court would pierce the whole thing, it would find that it is a desperate plea of the learned counsel for the petitioner to bring the case of the petitioner within the ambit of the terms and conditions of the appointment letter. Here in this case the appointment of the petitioner was not permissible under the 5 policy and yet he got it with the connivance of some Head Clerk and Clerk of the office of the Civil Surgeon who had suppressed the material facts and therefore, if the petitioner’s appointment was itself void ab initio being in teeth of the Government policy, it would not matter that the petitioner did not violate the terms and conditions of his appointment letter in course of his continuation of service for a period of less than a year. The last submission of the learned counsel for the petitioner that similarly situated persons whose services were also terminated on the same ground have been retained also is only to be noted for its being rejected inasmuch as in paragraph 13 certain vague statement to this effect has been made but not a single person has been named therein. The respondents could not have answered such vague allegations of discrimination. Infact a vague statement like one made in paragraph 13 of writ petition would itself go to show that the petitioner was not sure of such a case and had mentioned it only for attracting sympathy of this Court. That being so, this Court would not find any merit in this application, especially when the respondents have also paid full salary to the petitioner for the period he had been illegally appointed and continued by way of compassionate appointment. This application is wholly misconceived and is accordingly dismissed. (Mihir Kumar Jha,J.) Surendra/