An appointment made in violation of the prescribed procedure for appointment on compassionate grounds cannot be considered legal, and the principle of natural justice is not attracted in such cases.

Chandramauli Kumar Prasad, J.

1. This application has been filed for issuance of a writ in the nature of certiorari for quashing the order as contained in memo dated 27th of August, 2004 (Annexure-14) whereby the petitioners adjustment as clerk by memo dated 8.7.1991 (Annexure-10), has been cancelled and excess salary paid to him on account of his adjustment as clerk has been directed to be recovered.

2. Shorn of unnecessary details facts giving ruse to the present application are that the petitioners father was a teacher posted in Primary School and died while in service on 1.7.1980. Petitioner passed the Secondary School Examination, conducted by the Bihar School Examination Board, held in the year 1984 and thereafter, applied for appointment on compassionate ground. Prayer of the petitioner for appointment on compassionate ground was considered by the District Compassionate Committee in its meeting held on 2.9.1988 (Annexure-2) and it resolved to appoint him to a class IV post. In the light of the aforesaid resolution, by order as contained in memo dated 2.3.1989 (Annexure-3), petitioner was appointed as Peon and posted at Project Girls High School, Brahmpur in the district of Bhojpur. In the order of appointment, there was some error in regard to his surname which was lateron corrected by order as contained in memo dated 15.4.1989 (Annexure-4).

3. The petitioner although joined as Peon but later on represented before the authority for appointment to a class III post. The Deputy Director of Education, by its letter dated 10.8.1990 (Annexure-5), called for a report from the District Education Officer as to why petitioner was appointed as Peon and whether Class III posts were not available at that time. The District Education Officer, in response thereto, wrote to the Deputy Director of Education that petitioner was appointed as Peon on the recommendation of the District Compassionate Committee and as such, he is not in a position to assign the reason as to why he was appointed as such.

4. The Director of Secondary Education by its letter as contained in memo dated 17.9.1990 (Annexure-7), wrote to the District Education Officer that appointment of the petitioner as clerk shall not be proper on administrative ground. The District Education Officer further by letter dated 6th of November, 1990 (Annexure-8) stated that in the nationalised high Schools of the district of Bhojpur, there is no post of clerk and as such, petitioner can not be posted as Clerk. Till then, the wind was blowing against the petitioner and it goes to the credit of one Dashrath Tiwary, Deputy Director of Education who by his memo dated 26.3.1991 wrote to the District Education Officer to adjust the petitioner to a vacant post of Clerk at Project Balika High School, Etahi in the district of Bhojpur. Accordingly, by order as contained in memo dated 8.7.1991 (Annexure-10) petitioner was adjusted against the post of Clerk and posted in the Project Girls High School, Etahi. Thereafter, the petitioner was transferred to another school.

5. Lateron, it came to the notice of the authority that petitioner was promoted to the post of Clerk illegally by the District Education Officer and as such, by the impugned order dated 27th of August, 2004 (Annexure-14), same was cancelled and excess amount paid to him on account of his adjustment as clerk has been directed to be recovered. It is stated in the impugned order that petitioner was promoted as Clerk without following any procedure. It is this order which is impugned in the present application.

6. Mr. Ras Bihari Thakur appearing on behalf of the petitioner, submits that the impugned order has been passed on the ground that petitioner was promoted as Clerk, which assumption is unfounded on fact. He points out that the petitioner in fact was appointed as Clerk and hence, no procedure as required for promotion needed to be followed. Thus according to the petitioner, the impugned order being founded on erroneous a