An illegal appointment on compassionate grounds is void ab initio and cannot be cured solely based on long continuation.

1. Heard Mr. Banwari Sharma, learned counsel for the petitioner and the counsel for the State.

2. 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 Annexures-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 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 Honble Court and several directions have also been passed time to time in identical case which is fully covered the petitioners case. Apart from this the Honble High Court and the Honble 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 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."

3. 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 circular only on 5.10.1991 and therefore, if the petitioner had already been appointed in the year 1989, 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 V/s. 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 Rehabilitation-cum- Deputy Secretary of the Irriga