Full Judgment
S.J. Mukhopadhyaya, J.
1. This case relates to payment of salary stated to be due since May, 1999.
2. On the other hand, the Respondents having issued a show cause notice alleging illegality in the matter of earlier withdrawal of salary. The notice issued vide letter No. 64 dated 1st July, 1999 has also been challenged.
3. It appears that the Respondents have raised the question of legality and propriety of appointment of petitioner which is the ground for non-release of salary since May 99 and issuance of the notice dated 1st July. 99.
4. In this respect, the petitioner has taken plea that his appointment having made on compassionate ground, the Respondents cannot withhold salary for any one or other technical ground.
5. It appears that the father of the petitioner Late Surendra Prasad was in the services of In sic as a Block Animal Husbandry Officer and was posted at Chauparan, Haribagh. He died in harness of 4th February.1988 whereinafter the petitioner applied for compassionate appointment on 17th April.1988.
6. Subsequently, the petitioner was given appointment vide order No. 170 dated 6th September. 1988. It was so issued by the Regional Director, Animal Husbandry. Bhagalpur Range. Bhagalpur. After such appointment, the petitioner was given posting by the Director. Animal Husbandry, vide order dated 22nd May. 1989 and continued to receive salary. However, since May 99, his salary was withheld alleging appointment is illegal for which show cause notice issued on 1st July. 1999.
7. The Respondents in their counter affidavit have accepted that the father of petitioner was in service: he died in harness; and that the petitioner applied in time for compassionate appointment. The plea taken is that the application was preferred by the petitioner before the Regional Director. Animal Husbandry Bhagalpur, who was a close relative, though the application should have been filed before the Regional Director, Animal Husbandry, Hazaribagh. The appointment letter was so issued in anticipation of the approval of the Director. Animal Husbandry, Patna, but subsequently no order of approval having-issued, the petitioner's appointment is to be held as illegal. However, the stand taken by the Respondents was disputed by the petitioner by taking plea that thematter was referred to the Director. Animal Husbandry.
8. From the pleading made by the parties, it will be evident that the petitioner had a right to be considered for appointment on compassionate ground, ft is not the case of the Respondents that the petitioner was not eligible for appointment against class-III post, the petitioner being a graduate.
9. So far as power of appointment is concerned, it is not in dispute that the Regional Director is the competent authority to issue appointment letter. The sole ground taken is that the order of appointment should have been issued by the Regional Director. Animal Husbandry, Hazaribagh and not by the Regional Director. Animal Husbandry, Bhagalpur. However, such stand is not supported on the basis of the Government instruction for compassionate appointment which does not stipulate appointment of a ward of a deceased employee in the same Office/Department, but merely gives opportunity to such ward of the deceased employee for consideration of case for appointment under the State. It is always open to the competent authority to appoint person on one or other place.
10. In the present case, the petitioner applied for compassionate appointment in April, 1988 and the order of appointment was issued on 6th September. 1988. The Director. Animal Husbandry. Patna also issued order of transfer, as back as on 22nd May, 1989.
11. In the aforesaid background, the appointment having made on compassionate ground, I am not inclined to allow the Respondents to reopen the question of legality and propriety of appointment, merely on the ground that the appointment should have been made in the district of Hazaribagh.
12. Accordingly, the writ petition is allowed. The notice, as contained in Annexure 7 dated 1st July. 1999 is set aside with direction to the Respondents to pay the petitioner the arrears of salary as is due since May 99, uptil date, which is to be made within three months from the date of receipt/production of a copy of this order.
13. The writ petition stands disposed ofwith the afore-said observations and directions.
14. Writ disposed of with directions.