IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2442 of 2003 UDAY KANT JHA, son of Sri Tara Kant Jha, resident of village Ram Nagar Mahesh, P.O. Ram Nagar Bazar, P.S. Kumar Khand, District Madhepura (Bihar) … Petitioner Versus 1. THE STATE OF BIHAR through the Commissioner cum Secretary, Department of Water Resources (Jal Sansadhan), Government of Bihar, Patna 2. Director, Department of Land Acquisition and Rehabilitation and Water Resources, Government of Bihar, Patna 3. Special Land Acquisition Officer, Koshi Project Purnea 4. Sepcial Land Acquisition Officer, Koshi Project Saharsa … Respondents ----------- 4. 20.7.2009 Heard Mr. Banwari Sharma, learned counsel for the petitioner and the counsel for the State. The prayer in this writ application reads as follows: “ The present application is for issuance of a writ in the nature of writ of certiorari for quashing the office order dated 25.1.2003 vide memo no. 555 passed by the respondent no.2 alongwith the order of communication dated 1.2.2003 vide memo no. 139 passed by the respondent no.4 as contained in Annexure 11 and 12 respectively to this writ application; whereby this impugned order, the services of the petitioner has been terminated on a ground of illegal appointment which is not actually a ground as the 2 same is evident from the impugned order dated 25.1.2003 itself as this appointment is neither fake or forge, but a compassionate appointment. The said impugned order itself speaks that the petitioner has been appointed in the year 1988 itself on compassionate ground, after the death of his father-in-law namely Balkrishna Jha, who was fourth grade government employee and died in harness in the year 1986 itself where the appointment letter of the petitioner was issued on 8.3.1988 vide memo no. 893 by the Director i.e. respondent no.2 and the most important ground for termination of service of the petitioner has been shown that son in law is not eligible for the appointment of compassionate ground. Although the ground for termination of service has already been decided by this Hon’ble Court and several directions have also been passed time to time in identical case which is fully covered the petitioner’s case. Apart from this the Hon’ble High Court and the Hon’ble Apex Court has also passed several orders as if an employee continued on a post for several years his service should not be terminated either the appointing 3 officer was not competent to appoint the petitioner or the process of selection was not properly followed by the authorities, hence it should not be reopened and appointments already made should not be disturbed after a long period. And further be pleased to issue a writ in the nature of writ of mandamus, directing the concerned respondents to allow the petitioner to work on the post of Junior Account Clerk on which place he was posted and further be pleased to pay the petitioner his entire due salary and month to month salary alongwith all consequential benefits, according to law.” Mr. Sharma in support of the aforementioned prayer would submit that the appointment of the petitioner when it was made in the year 1988, there was no clear prohibition in the guideline circular issued by the Government on the subject laying down that a son-in-law would not be a dependent of the deceased employee dying in harness for his appointment on compassionate ground. He would submit that such clarification for the first time was issued by a Government 4 circular only on 5.10.1991 and therefore, if the petitioner had already been appointed in the year 1988, his appointment could not have been questioned on the basis of aforementioned subsequent Government circular dated 5.10.1991. He would further submit that in any event neither the petitioner nor the mother-in-law of the petitioner had made any misrepresentation while seeking appointment of the petitioner on compassionate ground and therefore, removal of the petitioner after he had been allowed to continue in service for a period of 15 years, was wholly illegal. In this context he refers to the judgment of the Division Bench of this Court in the case of State of Bihar vs. Indra Mohan Rai, reported in 2009(2) PLJR 869. He would finally submit that it is not only in the case of the petitioner that such son-in-law came to be appointed on compassionate ground but even earlier in the year 1983, one Rampadarath Thakur being a son-in-law of the deceased employee was appointed in the same department on compassionate ground under the orders of the Director, Land Acquisition and 5 Rehabilitation cum Deputy Secretary of the Irrigation Department. It is claimed that petitioner in his show cause reply had made a mention and annexed documents relating to appointment of Ram Padarath Thakur but the respondents have while passing the impugned order not even addressed themselves on this issue. Counsel for the State, on the other hand, with reference to the materials on record would submit that such an appointment made of a son-in-law on compassionate ground was wholly impermissible, inasmuch as right from the first circular on the subject of compassionate appointment, dated 12.7.1977 it had been made clear that the appointment on the basis of compassionate ground could be made only of a widow, son unmarried daughter or widow of a predeceased son who alone were defined as dependent family member of a deceased employee. He has also explained that a married daughter and consequently a son-in-law were never notified to be the dependent family member of the deceased employee. He would further submit that as a matter of fact a procedure 6 had been laid down for undergoing appointment on compassionate ground under which it is the District Compassionate Appointment Committee which alone is empowered to examine and recommend for appointment on compassionate ground but such procedure was not followed in the appointment of the petitioner and the Director, Land Acquisition and Rehabilitation, who had made such appointment of the petitioner was not even competent and authorized, being not the Head of the Department, to make such appointment. As with regard to the case of Rampadarath Thakur it has been submitted that as this issue was not raised in the writ application in so many words the respondents have not answered but then if it is a fact that Rampadarath Thakur though being a son-in-law was appointed on compassionate ground and was still continuing in service, the respondents would take appropriate steps for his removal as well. In the opinion of this Court, the concept of a policy for appointment on compassionate ground introduced by the State 7 Government in the circular dated 12.7.1977 had itself envisaged providing of immediate relief only to one of the dependent family member of the deceased employee. Under such scheme/policy of appointment on compassionate ground the dependent family members was classified as wife son and unmarried daughter. It is, therefore, clear from the aforesaid 1977 circular, the first on the subject, that neither a married daughter nor a son-in-law was not included amongst the dependent members of the deceased employee. The same categorization was reiterated in the subsequent circular dated 30th November, 1984 with a minor modification that in addition to the wife son and unmarried daughter even the widow of a predeceased son would stand included in the category of the dependent of the deceased employee. It is, therefore, very clear that even in the original scheme that was framed in the year 1977 or its modification made in the year 1984 there was a clear prohibition for appointment of a married daughter or son-in-law on compassionate ground and therefore, it is 8 not correct to say that such scheme for appointment on compassionate ground confining wife, son, unmarried daughter and wife of a predeceased son was introduced by the State Government by its circular dated 5.10.1991 only after appointment of the petitioner in 1988. That apart, the procedure of appointment on compassionate ground being altogether different, which at that relevant point of time required consideration by the departmental head i.e. the Commissioner of the Department through a Committee and was not followed in the case of the petitioner, his consideration at the local level by Executive Engineer recommending appointment on compassionate ground by the Director or the eventual decision of Director for such appointment on compassionate ground was itself in violation of the manner prescribed for appointment on compassionate ground. The reliance placed by the counsel for the petitioner on an order of this Court dated 25.1.2002 in L.P.A. No. 115/2002 being not connected with appointment on compassionate ground and infact relating to 9 the order upholding appointment made on Class III and IV by the Director, can hardly of any avail for the petitioner. As noted above the requirement of the policy for appointment of the petitioner on compassionate ground of screening through a Committee headed by the Commissioner of the Department based on recommendation of such Committee was never followed and/or adhered to in the case of the petitioner and as such his appointment on compassionate ground being in teeth of the guidelines issued by the State Government was void ab-initio conferring no right on him. The last submission of the learned counsel for the petitioner that since there was no fraud or misrepresentation on the part of the petitioner he must be allowed to be continued in service in view of ratio laid down in the judgment of a Division Bench of this Court in the case of Indra Mohan Rai (Supra) is also untenable inasmuch here the impugned order itself talks of not only the appointment on compassionate ground being per se illegal but it also mentions of punitive action to be taken against the 10 Director who had made such an illegal appointment of the petitioner. In the present case in the impugned order itself it has been said that since the Director himself has made such an illegal appointment of the petitioner, he had been subjected to both criminal case as also departmental proceeding for his proven misconduct. Therefore, this Court would not find any applicability to the aforesaid judgment of the Division Bench of this Court in the facts of present case. In any event the said judgment of this court in Indra Mohan Rai (supra) has lost its precedential value in the light of judgment of constitution bench of the Apex Court in the case of State of Karnataka Vs. Uma Devi(3) reported in 2006(4) SCC 1, laying down a law that an illegal appointment is void ab-initio and cannot be cured only on account of long continuation. Finally while this Court may not put a last word with regard to Ram Padarath Thakur an allegedly similarly situated person said to be appointed by memo no. 417 dated 8th February, 1983 under the orders of 11 the Director, Land Acquisition and Rehabilitation, specially when the counsel for the State has himself undertaken to get his matter of appointment examined and if found to be similarly situated as that of the petitioner, to also take steps for his removal from service. This Court would however expect the respondents would honour the aforementioned commitment made by the counsel for the State. With the aforementioned observations and/or directions this application is dismissed. Let a copy of this order be given to S.C. 21. (Mihir Kumar Jha,J.) Surendra/