IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.15351 OF 2009. SHIVBRAT CHAUDHARY, S/O LATE NAND KISHORE CHAUDHARY, R/O VILLAGE PARIHARA, P.S BAKHRI, DISTRICT BEGUSARAI. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, DEPARTMENT OF HEALTH, GOVT. OF BIHAR, PATNA. 2.THE DIRECTOR IN CHIEF, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT. OF BIHAR, PATNA. 3.THE CIVIL SURGEON CUM CHIEF MEDICAL OFFICER, MADHEPURA. ………………………RESPONDENTS. ----------- 05/ 05.12.2011 Heard counsel for the parties. The petitioner in this writ application has sought for the following relief:- “(i)Issuance of appropriate writ in the nature of certiorari, for quashing the decision of three man Enquiry Committee Report dated 25.08.2008, (Annexure-3), whereby and whereunder, the petitioner has been placed in the category of illegal appointee, saying that „Appointment on the post of Labour‟. (ii)Issuance of appropriate writ in the nature of mandamus, commanding/directing the respondents to re-instate the petitioner in service with effect from the date of his termination, i.e. 26.02.2002 with all consequential benefits.” As a matter of fact, the petitioner is the son of the deceased employee whose services were terminated on 26.02.2003, 2 whereafter he had himself moved this Court in the writ application assailing the aforementioned order being C.W.J.C No. 14406 of 2003, this Court had remitted the matter back to the State Government with certain directions in the order dated 26.06.2006 in the case of State of Bihar Vs. Purendra Sulan Kit reported in 2006 (3) PLJR 386, Counsel for the petitioner has submitted that when the case was remitted to the State Government, a Committee of officials had declared the appointment of the father of the petitioner as illegal only by making remark for the post of labour. He would explain the fact that the father of the petitioner being appointed on the post of labour is not an admitted fact and that by itself cannot be held to be illegal unless the respondents disclose the reasons. Counsel for the State with the help of the counter affidavit has referred to paragraph no. 4, 5 and 8 but ultimately could not put his finger on the case and the statement made in the counter affidavit, which could have explained the 3 nature of illegality on the appointment of the father of the petitioner. True it is that certain reasons are mentioned in the order of the Civil Surgeon dated 26.02.2003 terminating the services of the father of the petitioner relevant portion whereof reads as follows:- vkidh fu;qfDr rRdkyhu flfoy&ltZu lgjlk ds i=kad 58 fnukad 08-01-83 ds }kjk Jfed ds in ij fu;qfDr dh x;h] ;g n”kkZrs gq, fd vkidk ifj/kkid ds in ds iSuy lwfp esa dzekad 26 esa gS fu;qfDr i= esa i=kad 596¼25½ fnukad 23-12-82 LokLF; funs”kky; ds vkyksd esa mi;qZDr fuf;qfDr dh x;hA ifj/kkid ds 15 inksa ij fu;qfDr ds fy, foKkiu la[;k& 34@82 fnukad 10-07-82 izdkf”kr fd;k x;kA foKkiu ea vkjf{kr inksa dk dksbZ mYys[k ugha gS vkSj jksLVj Dyh;jsal laca/kh lwpuk lafpdk esa miyC/k ugha gSA fu;kstuky; ds ek/;e ls vkosnu izkIr gq, ijarq p;u lfefr dh cSBd ugha gqbZ gSA pwafd vkidh fu;qfDr esa fofgr izfdz;k dk iw.kZ:isu ikyu ugha gq, gSa] blfy, vkidh fu;qfDr voS/k gSA The Division Bench of this Court, however, had remitted the matter back in its order dated 26.06.2006 in the case of Purendra Sulan Kit(supra), it had expected that the case of each and every petitioner shall be considered in the light of the facts of his case. The father of the petitioner had continued in service for a period of almost 20 years and thus had also earned a right for getting pension in view of the minimum requirement of pensionable service under the Bihar Service Code of 10 years. This Court, 4 however, has not been apprised by the petitioner as to what show cause reply was filed by his father in response to the show cause notice dated 24.11.2001 and to another show cause notice dated 21.01.2003. Today, this Court cannot expect much from the petitioner, he being the son of the deceased employee and as such this Court would only direct the Director in Chief of the Health Services to look into the aspect as to whether there is any inherent infirmity in the appointment of the father of the petitioner. Such inherent infirmity may be that the post of labour (shramik) was not advertised yet and was filled up from the different panel or the Civil Surgeon had no competence to make such appointment. In any event, the Director-in-chief of the Health Services must examine the case of the father of the petitioner in the light of the facts explained by the petitioner, inasmuch as, all that the petitioner may get now is only pensionary relief because the termination order of the father of the petitioner has been found to be bad and 5 unsustainable. This Court however would make it clear that the petitioner cannot now claim compassionate appointment in view of the fact that the death of the father of the petitioner had taken place on 24.07.2006 and a period of five years have already elapsed and therefore, the Authorities would be required to only examine as to whether the widow of the deceased employee would be entitled for family pension on account of the death of the father of the petitioner by treating him to have been irregularly appointed and thus entitled for similar benefit as was extended to nine of them by the order of the health department dated 03.10.2009. Considering all these aspects, this Court would give liberty to the petitioner to file a self contained representation for claiming the death cum post retirement benefits of his father and if the Director-in-chief finds that the order of termination of the father of the petitioner was bad, he would also pass consequential order for extending the 6 retirement benefit to the family of the deceased employee, the father of the petitioner. If, however, on the other hand he would find that the appointment of the father of the petitioner was inherently defective being in teeth of Article 14 and 16 of the constitution of India and thus void ab initio he would pass a reasoned order and communicate it to the petitioner. Such exercise must be completed within a period of six months from the date of receipt/production of a copy of this order. With the aforementioned observation and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)