- (1.) CHALLENGE in this writ application to the letter No. 832 dated 18.06.2008 (Annexure -11) written by the Respondent No. 5 addressed to Respondent No. 6 stating therein that the petitioner's father could not be treated as a Government Servant and therefore the petitioner's appointment on compassionate ground is illegal and irregular. Besides his prayer for quashing the aforesaid letter, the petitioner has also prayed for restraining the respondents to act thereon. The petitioner has also prayed for quashing the Office Order No. 1285 dated 23.07.2008 issued by the Respondent No. 6 (Annexure -13) whereby the payment of the petitioner's salary has been stopped.
(2.) FACTS of the case in brief is that the petitioner's father Late Mahendra Prasad Ram was appointed on the post of Assistant Teacher in the year 1983 along with several others, by the order of the then District Superintendent of Education, Sahebganj. Later, such appointments were declared illegal by the Special Secretary, Dep.ment of Education, Government of Bihar, Patna sometime in the year 1983 -84 and the payments of salary of the petitioner's father and others were stopped. Being aggrieved, the petitioner's father along with other teachers filed a writ petition before the Patna High Court against withholding of their salary vide C.W.J.C. No. 3852 of 1984. While disposing of the writ application by its order dated 19.12.1984, the Court had directed the respondents to pay the salary to the teachers since it was the admitted case of the party that the teachers were continuously working on their respective posts. Thereafter, the Special Secretary, Department of Education, Government of Bihar, Patna by his order, terminated the services of the petitioner's father and that of several other teachers. Being aggrieved, the teachers including the petitioner's father filed another writ application before the Patna High Court vide C.W.J.C. No. 177 of 1985. By an interim order dated 26.03.1985, while admitting the writ application for hearing, the Court had stayed the operation of the termination order. Meanwhile, in compliance of the High Court's order passed in the earlier C.W.J.C. No. 3852 of 1984, the Respondent No. 6 issued a directive vide Memo dated 15.03.1986 to pay the salary to the appointed teachers which was earlier stopped. Accordingly, payment of salary to all such teachers including the petitioner's father was resumed and they continued to discharge their duties as Assistant Teachers in their respective schools. The petitioner's father was posted at the relevant time at the Primary School, Demba in Mirzachowki Circle. During the period of his service, the petitioner's father Late Mahendra Prasad Ram died in harness on 05.02.1996. After the death of his father, the Respondent No. 6 by his letter dated 05.08.1997 addressed to the Deputy Director of Primary Education, Bihar, Patna, sought for guidelines in the matter of payment of family pension, gratuity and also for the appointment of one of the dependents of the deceased teacher on compassionate ground. In reply, the Respondent No. 6 was advised by the Deputy Director of Education, Bihar, Patna vide his letter dated 05.08.1997 to act in accordance with the Rules considering the fact that the deceased at the time of his death was treated to be in service and was paid the amount of Group Insurance and unavailed earned leave. The petitioner thereafter filed his application praying for his appointment on compassionate ground. The Respondent No. 6 by his letter dated 18.03.1998 referred the petitioner's application to the Deputy Commissioner, Sahebganj and in due course, the petitioner's case was put up before the District Compassionate Committee, Sahebganj on 24.04.1998 for taking a decision on the petitioner's prayer for his compassionate appointment. After inviting all relevant detailed information regarding the petitioner's claim and the grounds thereon from the Respondent No. 6, the District Compassionate Committee at its meeting dated 20.12.2001 took a decision that the petitioner was found eligible for his appointment on the post of Clerk. The recommendation of the District Compassionate Committee was forwarded to the Deputy Commissioner -cum -Chairman of District Compassionate Committee through the concerned department on 30.03.2002. The recommendation so forwarded to the concerned authorities and ultimately by the order of the Regional Deputy Director of Education, Santhal Pargana Division, Dumka dated 27.06.2002, the petitioner was appointed on the vacant post of Clerk in the Office of Respondent No. 6. On being so appointed, the petitioner, since the date of his joining the post on 29.06.2002, was continuously in service without any blemish. While the petitioner's appointment came to be accepted and regularized by the respondents, the District Education Officer, Sahebganj called for the concerned documents relating to the petitioner's appointment from Respondent No. 6 and thereafter by his impugned letter dated 18.06.2008 addressed to the Respondent No. 6, the District Education Officer (Respondent No. 5) declared that the petitioner's appointment was illegal since the petitioner's father Late Mahendra Prasad Ram could not be treated as a Government Servant and as such, the services of the petitioner should not be taken any further. On the above direction being communicated to the petitioner, he filed his representation before the Respondent No. 6 questioning the propriety of the decision taken by the Respondent No. 5. It is this decision of the Respondent No. 5 and the consequent actions of the Respondent No. 6 refraining from taking any further work from the petitioner and stopping payment of salary, that has been assailed in this writ application. A counter affidavit has been filed on behalf of the Regional Deputy Director of Education, Dumka (Respondent No. 4) as also on behalf of the District Superintendent of Education, Sahebganj (Respondent No. 6).
(3.) HEARD learned counsel for the petitioner and learned counsel for the Respondents.;