JUDGMENT
Chandramauli Kr. Prasad, J.
1. This application has been filed for quashing the order dated 17.6.2003 passed by the Civil Surgeon-cum-Chief Medical Officer, Begusarai whereby the petitioner’s appointment as Clerk has been cancelled with immediate effect.
2. Shorn of unnecessary details facts giving rise to the present application are that the petitioner happens to be husband of one Meena who was working as A.N.M. and died on 25.5.1991 while in service. Petitioner filed an application for grant of appointment on compassionate ground. The Civil Surgeon-cum-Chief Medical Officer, Begusarai forwarded the matter to the District Magistrate by its letter dated 29.5.1992, who rejected the proposal for appointment on compassionate ground. Thereafter, the State Government through its Personnel and Administrative Reforms Department came out with a resolution dated 5.10.1991 which made the husband eligible for appointment on compassionate ground on the death of his wife. Taking note of the same the Civil Surgeon-cum-Chief Medical Officer by order dated 29.7.1994 appointed the petitioner to the post of Clerk on compassionate ground. Later on it was found that the proposal for appointment of the petitioner on compassionate ground was rejected earlier still he was appointed, a show cause notice dated 27.11.2002 (Annexure-2) was issued asking the petitioner to file his show cause as to why his service be not terminated. The petitioner submitted his reply and claimed that he has been appointed by the Civil Surgeon-cum-Chief Medical Officer in view of the direction of the State Government as contained in resolution dated 5.10.1991 which, inter alia, provides that in case of death of the wife husband shall also be one of the dependants, who can be given appointment on compassionate ground. The show cause filed by the petitioner was considered and by the impugned order petitioner’s service has been terminated with immediate effect.
3. There is nothing on the record to show that what procedure was followed before appointing the petitioner on compassionate ground. It is not known as to whether before appointing the petitioner on compassionate ground his case was placed before the District Compassionate Committee.
4. Mr. Rajendra Sharma appearing on behalf of the petitioner contends that the petitioner, has been appointed in pursuance of the resolution of the State Government dated 5.10.1991 which makes the husband eligible for appointment on compassionate ground and as such the termination of his service is bad. He point is out that the prayer of the petitioner for compassionate appointment right have been rejected earlier, but in view of the resolution of the State Government dated 5.10.1991 which is binding on all subordinate authority petitioner was appointed.
5. Standing counsel, III, however, contends that resolution dated 5.10.1991 is a decision of the State Government which provides for compassionate appointment and it had not dealt with the case of the petitioner. He also points out that petitioner’s claim for appointment on compassionate ground was rejected earlier and without placing his case before the District Compassionate Committee, the Civil Surgeon-cum-Chief Medical Officer appointed the petitioner referring to the resolution of the State Government dated 5.10.1991 and as such the appointment of the petitioner was absolutely illegal and after giving show cause notice to him the same has been terminated.
6. Having appreciated the rival submissions, I do not find any substance in the submission of Mr. Sharma. Undisputedly the petitioner’s wife died on 25.5.1991 and at that point of time the resolution providing for appointment on compassionate ground did not provide that on the death of the wife the husband can be given appointment on compassionate ground. In fact the prayer made by the petitioner for appointment on compassionate ground was considered and rejected. Thereafter the State Government came out with resolution dated 5.10.1991, in which it has been provided that husband of the lady dying in harness can also be given appointment on compassionate ground. This was resolution of the State Government and not a direction for appointment of the petitioner. The Civil Surgeon-cum-Chief Medical Officer taking the resolution of the State Government to be a direction had appointed the petitioner on compassionate ground without placing the matter before the District Compassionate Committee. Petitioner was not entitled for appointment on compassionate ground in accordance with the resolution of the State Government prevalent at the time of his wife’s death and, as such, he was illegally appointed on compassionate ground. When the said fact came to the notice of the authority a show cause notice was given to the petitioner and on consideration of the same his appointment has been terminated being illegal in law.
7. Mr. Sharma contends that petitioner’s wife died on 25.5.1991 and the circular of the State Government dated 25.5.1989 provided for filing the application for appointment on compassionate ground within five years from the date of death of the Government servant in harness and before the expiry of the said period, State Government had come out with resolution dated 5.10.1991 making the husband of the deceased employee eligible for appointment, hence his case shall be governed by the later resolution. Accordingly, he submits that petitioner was rightly appointed on compassionate ground. In support of the submission reliance has been placed on a Division Bench judgment of this Court in the case of Vina Kumari v. The State of Bihar and Ors., 2003 (2) BLJR 970, and my attention has been drawn to paragraph Nos. 3 and 8 of the judgment which reads as follows :
“3. The order on the writ petition is, to the effect, that upon death of a Government servant having occurred if a person applying is a minor then that person cannot be considered for a job on the ground of compassionate appointment. To this extent the judgment on the petition, the Court is afraid, is in error.”
“8. Thus, in a cause as was brought by C.W.J.C. No. 1785 of 1994 and on the application as was made on 25 August, 1992 prima facie the appellant was within the field of eligibility. In accordance with the Circular of the Government itself, her case needs to be considered.
8. I do not find any substance in this submission of Mr. Sharma and the decision relied on, in no way, supports his case. Undisputedly, petitioner was not minor at the time of the death of his wife. He filed application for appointment on compassionate ground immediately after the death of his wife. His application was considered and finding him to be ineligible in terms of the resolution prevalent at that time, his prayer was rejected. In such circumstance, the resolution of the State Government making the husband eligible for appointment on compassionate ground later on, shall not govern the case of the petitioner. In the case of Vina Kumari, (supra), the dependent of the deceased employee was minor, who attained majority within five years from the date of death of Government servant dying in harness and taking into account that dependent can file application within five years, she was held to be eligible, which is not the fact in the present case.
9. Mr. Sharma then submits that petitioner had worked for more than nine years, it shall be highly inequitable to terminate his service after such a long period. Reliance has been placed on a decision of the Supreme Court in the case of, AIR 1999 SC 517, Union of India and Ors. v. Kishorilal Bablani and in the case of Mani Bhushan Chaudhary and Anr. v. Bharat Coaking Coal Ltd. and Anr., 1993 (2) PLJR 40.
10. I do not find any substance in this submission of Mr. Sharma also and in my opinion, invoking the theory of equity in the facts of the present case shall be highly inequitable. Petitioner was not eligible for appointment. His prayer for appointment was considered and rejected by the District Compassionate Committee. Thereafter, the Civil Surgeon appointed him without placing the matter before the Committee. In my opinion, appointment of a person who is not eligible for appointment and whose prayer is rejected by the competent body but later on appointed illegally cannot be saved by invoking equity.
I do not find any merit in the application and it is dismissed accordingly. No cost. Application dismissed.