Entitlement to compassionate appointment should be considered despite technical flaws in the appointment process.

1. Heard counsel for the parties. The case of the petitioner is that his father, who was class IV employee in the Department of Health died in harness on 29th March, 1980. The petitioner applied for appointment on compassionate ground on 3rd April, 1980, being a son of the deceased employee. That application was duly forwarded by the Civil Surgeon, Bhagalpur, and thereafter by order dated 24.5.80 he was appointed as a Peon, a Class IV post, under the Civil Surgeon, Bhagalpur. On 6.12.1983 the appointment was confirmed. However, by order dated 20th May, 1993, the appointment of the petitioner has been cancelled on the ground that it was made after 1.1.1980.

2. Counsel for the State explained that one Mr. A. A. Mallick, Deputy Director, Tuberculosis, had made large number of illegal appointment and, therefore, those appointments were sought to be cancelled. Moreover, the appointing authority in the instant case was the Deputy Director, who was not competent to make the appointment, as the competent authority was the Director-in-Chief, Health Services.

3. The petitioner had earlier preferred a writ petition before this Court, but the same was disposed of with a direction to the petitioner to make a representation to the Director-in-Chief, Health Services. The Director-in-Chief, Health Services, has since disposed of the representation rejecting the claim of the petitioner holding that the Deputy Director, Health Services, was not competent to appoint him, and the appointing authority was the Director-in-Chief, Health Services.

4. While it is true that technically speaking the plea taken by the State Government has force, but one cannot overlook the fact that the petitioner was entitled to be appointed on compassionate ground after the death of his father. He had duly filed an application which had been forwarded. Since he was appointed, he was not expected to test the correctness, legality etc. of the order of appointment, as he was satisfied with the appointment. The authorities have cancelled that appointment. In my view, having regard to the claim of the petitioner, even if there was some technical flaw in the order of appointment, the Director-in- Chief, Health Services, should have considered the case of the petitioner for appointment on compassionate ground, as such application was pending and, perhaps, he was appointed purportedly pursuant to the application made by the petitioner, therefore, assuming that the appointing authority had not issued the letter of appointment, it still remained to be examined by the Director-in-Chief, whether the petitioner was entitled to appointment on compassionate ground.

5. Having regard to these facts and circumstances, this writ petition is disposed of with a direction to the Director-in- Chief, Health Services, Government of Bihar, Patna, to examine the case of the petitioner for appointment on compassionate ground pursuant to the application dated 3rd April, 1980, in accordance with the rules. The case of the petitioner shall be considered and if it is found that he was entitled as on the date of the application to appointment on compassionate ground, the impugned order cancelling the order of appointment shall be revoked, and the competent authority shall issue a proper letter of appointment in favour of the petitioner. This should be done within a period of three months from the date on which a copy of this order is produced before the Director-in-Chief, Health Services (respondent no.2). If the petitioner is entitled to appointment on compassionate ground, after revocation of the impugned order, cancelling his appointment, he shall also be paid the arrears of salary in accordance with law, and without treating the period of his absence as break in service.