Patna High Court
BiharversusRavi Shankar Kumar
- Decided
- Disposal
- DISMISSED
Holding
The appointment of the petitioner’s father was illegal and void ab initio, precluding any entitlement to compassionate appointment and rendering the earlier order allowing the writ petition ultra vires.
Summary
The Patna High Court examined an intra‑court appeal challenging a single judge’s order that set aside two memos rejecting Ravi Shankar Kumar’s claim for a compassionate appointment. The petitioner’s father, a health‑department employee, had been classified as an “illegal” appointee by a five‑member committee, a finding later affirmed by the Supreme Court in Kirti Narayan Prasad and Devendra Sharma. The Court held that an appointment declared illegal and void ab initio cannot confer any service rights, even if post‑mortem benefits were later paid. Consequently, the petitioner cannot claim a compassionate appointment nor parity with similarly situated persons who received such appointments. The Court set aside the single judge’s order, dismissed the writ petition, and allowed the Letters Patent Appeal.
Issues considered
- As to whether the Supreme Court rulings in Kirti Narayan Prasad and Devendra Sharma apply to the petitioner despite his non‑partieship
- Whether the father’s services can be declared illegal posthumously without a hearing
- Whether extending salary and death‑cum‑retirement benefits precludes treating the appointment as illegal
- Whether the State is justified in refusing the petitioner’s compassionate appointment claim
- Whether the petitioner can claim parity with similarly situated individuals such as Munna Kumar
Legislation cited
- Code of Civil Procedure — s. Order XXII Rule 1, Rule 11
- Code of Criminal Procedure — s. Section 394
- Constitution of India — s. Article 14, Article 311
Subjects
- compassionate appointment
- illegal appointment
- service law
- equality
- Article 14
- Letters Patent Appeal
- judicial review
- public service
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.971 of 2025
In
Civil Writ Jurisdiction Case No.12607 of 2014
======================================================
1. The State of Bihar through the Principal Secretary, Department of Health,
Government of Bihar, Patna.
2. The Principal Secretary, Department of Health, Govt. of Bihar, Patna.
3. The Director in Chief, Health Services, Bihar, Patna.
4. The Director, Health Service, Bihar, Patna.
5. The Superintendent, Jawaharlal Nehru Medical College Hospital, Bhagalpur.
6. The District Magistrate, Bhagalpur-cum-Chairman District Compassionate
Appointment Committee, Bhagalpur.
... ... Appellants
Versus
Ravi Shankar Kumar, Son of Late Vijay Thakur, resident of Village-
Gowasha, Shikhpura, P.S. - Pandarak, District Patna.
... ... Respondent
======================================================
Appearance :
For the Appellant/s : Mr. Kinkar Kumar, SC-9
Ms. Vagisha Pragya Vacaknavi, AC to SC-9
For the Respondent/s : Mr. Shiv Kumar, Advocate
Ms. Sweta Burnwal, Advocate
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
And
HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE HARISH KUMAR)
Date : 13-05-2026
Heard Mr. Kinkar Kumar, learned Standing Counsel
No.9 appearing on behalf of the appellants, and Mr. Shiv
Kumar, learned counsel representing the writ petitioner-sole
respondent herein.
2. The present intra-court appeal, preferred under
Clause 10 of the Letters Patent, is directed against the order
dated 28.02.2025 passed by the learned Single Judge of this
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Court in C.W.J.C. No. 12607 of 2014. By the said order, the
learned Single Judge has been pleased to allow the writ
application by setting aside Letter No. 1533 dated 27.03.2014 as
well as Letter No. 1323 dated 23.02.2023, whereby the claim of
the writ petitioner for appointment on compassionate ground
had been rejected. The authorities have further been directed to
take a fresh decision, in accordance with law, with regard to the
petitioner’s claim for compassionate appointment, taking into
consideration all relevant facts as noticed in the order, within the
stipulated time frame.
3. Since the present case has a chequered history, it is
necessary to briefly set out the relevant facts for proper
adjudication of the issues involved, which are delineated
hereinafter.
(i) The present case has its genesis in the appointment
of the petitioner’s father, who was initially engaged on daily
wages in the year 1987 vide Memo No. 645 dated 28.03.1987,
issued by the Superintendent, Medical College and Hospital,
Bhagalpur. Subsequently, his services were regularized/absorbed
to the post of Darban in the pay scale of Rs. 775–1025 vide
Order No. 1161 dated 29.03.1990. However, upon detection of
large-scale irregularities and illegalities in appointments made
across various regional offices of the Health Department, the
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authorities, vide Memo No. 928 dated 29.05.1991, directed that
the salaries of such employees, including the petitioner’s father,
be withheld, and they were further restrained from discharging
their duties.
(ii) Aggrieved by the aforesaid action, the petitioner’s
father preferred C.W.J.C. No. 6571 of 1999; in the meantime,
however, his services came to be terminated. The said writ
petition was disposed of vide order dated 26.02.2004, granting
liberty to the petitioner’s father to challenge the order of
termination. Pursuant thereto, the petitioner’s father filed
C.W.J.C. No. 5114 of 2004 assailing his termination, which was
heard analogously along with a batch of similar matters, the lead
case being L.P.A. No. 946 of 2003 (The State of Bihar & Ors.
vs. Purinder Solanki). The said L.P.A., along with other
analogous matters, was disposed of vide order dated 26.06.2006,
with a direction to the State authorities to reconsider the cases of
all affected employees for regularization in terms of the law laid
down by the Constitution Bench of the Hon’ble Supreme Court
in Secretary, State of Karnataka vs. Uma Devi (3), (2006) 4
SCC 1.
(iii) In pursuance of the order dated 26.06.2006, a
Five-Men Committee was constituted under the chairmanship of
the Director-in-Chief, Health Services. Upon conducting an in-
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depth inquiry, the Committee submitted its report in the year
2008, categorizing the concerned employees into three classes,
viz. “irregular”, “illegal”, and “forged”. The High-Level State
Committee found that the appointments of 91 employees were
“irregular”, while the remaining employees were categorized as
either “illegal” or “forged”. The petitioner’s father was placed in
the category of “illegal” appointees. It is pertinent to note that
only those 91 employees whose appointments were found to be
“irregular” were absorbed by the Department as a one-time
measure in terms of the mandate laid down in Uma Devi (3)
(supra).
(iv) Aggrieved by the said inquiry report, several writ
petitions came to be filed, including C.W.J.C. No. 8825 of 2009
filed by the petitioner’s father, which was heard along with
C.W.J.C. No. 6575 of 2009. The Hon’ble Court, vide common
order dated 06.10.2009, set aside the inquiry report dated
21.12.2008 submitted by the Five-Men Committee.
(v) Being aggrieved by the said order passed by the
learned Single Judge, the State of Bihar preferred several Letters
Patent Appeals. A separate L.P.A. was also filed against the
order passed in the case of the petitioner’s father on 19.12.2011,
which was subsequently numbered as L.P.A. No. 300 of 2015.
(vi) In the meantime, the challenge to the order passed
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by the learned Single Judge remained unsuccessful before the
Division Bench. However, the Letters Patent Appeal preferred in
the case of the petitioner’s father remained defective and,
therefore, could not be heard along with the other connected
L.P.As. In the interregnum, on account of a contempt
application filed by the petitioner’s father, being M.J.C. No.
1848 of 2010, he was reinstated in service, subject to the
outcome of the L.P.A. filed in his case. During the pendency of
the proceedings, the petitioner’s father unfortunately died in
harness on 15.04.2012. It is pertinent to note that all death-cum-
retiral benefits were extended in his favour in compliance with
the order passed in M.J.C. No. 3944 of 2013.
(vii) Meanwhile, the matters relating to other
identically situated employees whose appointments had also
been categorized as “illegal” and “forged”, but whose
termination orders were set aside by the learned Single Judge
and affirmed by the Division Bench at the instance of the State
of Bihar were carried to the Hon’ble Supreme Court in Civil
Appeal No. 8469 of 2018 and analogous cases (State of Bihar
& Ors. v. Kirti Narayan Prasad) [(2019) 13 SCC 250]. The
Hon’ble Supreme Court, vide judgment dated 30.11.2018,
accepted the findings of the Five-Men Committee and held that
such appointments were void ab initio and not eligible for
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regularization in terms of paragraph 53 of the judgment
rendered in Uma Devi (3) (supra).
(viii) Another batch of similar matters was further
considered by the Hon’ble Supreme Court in State of Bihar &
Ors. v. Devendra Sharma [(2020) 15 SCC 466], which came to
be decided vide order dated 17.10.2019. The Hon’ble Court held
that such appointments were made without any sanctioned posts
and without following the due recruitment process, and were in
the nature of back-door entries, reflective of nepotism and
favouritism. It was further held that such appointments could
not, by any judicial standard, be termed “irregular”, but were
clearly “illegal”, having been made through a wholly arbitrary
process.
(ix) In the meanwhile, when L.P.A. No. 300 of 2015
was taken up on 18.12.2018, it was submitted on behalf of the
respondent (writ petitioner) that an identical issue was pending
consideration before the Hon’ble Supreme Court in S.L.P. (C)
No. 2806 of 2014, and accordingly, the matter was directed to
be listed after disposal of the said S.L.P. It is relevant to note
that, upon being informed that the original writ petitioner in
C.W.J.C. No. 8825 of 2009 had expired, the State filed I.A. No.
5590 of 2016 for substitution of his legal heirs, which was
allowed, and his son, Ravi Shankar Kumar, was substituted as
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the writ petitioner.
(x) Subsequently, S.L.P. (C) No. 28306 of 2014 was
heard analogously with Civil Appeal No. 7879 of 2019 (State of
Bihar & Ors. v. Devendra Sharma), and disposed off
accordingly, as noted hereinabove. However, when L.P.A. No.
300 of 2015, arising out of the common order dated 06.10.2009
in the case of the petitioner’s father, was taken up on
14.12.2020, it was submitted on behalf of the present writ
petitioner that his father (original petitioner) had expired and
his legal heirs had not been substituted. In view thereof, the
Court disposed of the L.P.A. as having abated.
(xi) Thereafter, the State filed a modification
application being M.J.C. No. 2605 of 2022 seeking modification
of the order dated 14.12.2020. The said application was
disposed of with liberty to file a review petition. Pursuant to the
liberty so granted, the State has preferred Civil Review No. 176
of 2024, which is presently pending consideration.
4. In the aforesaid factual background, now we take
up the facts of C.W.J.C. No. 12607 of 2014, filed by the present
writ petitioner for consideration.
(i) The writ petition was instituted seeking quashing
of Memo No. 1533 dated 27.03.2014, issued under the signature
of the Superintendent, Jawahar Lal Nehru Medical College &
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Hospital, Bhagalpur, whereby the petitioner was informed that
his claim for appointment on compassionate grounds would be
considered only after disposal of the L.P.A. arising out of the
case of his father.
(ii) During the pendency of the writ petition, the State
respondents issued Memo No.1323 dated 23.02.2023, rejecting
the petitioner’s claim for compassionate appointment. The said
subsequent development and the order were also brought on
record and challenged by the petitioner through I.A. No. 2 of
2023.
(iii) The State and the concerned respondents filed
their counter affidavit(s) as well as supplementary counter
affidavit(s) opposing the reliefs sought in the writ petition and
the interlocutory application, placing the relevant facts on
record.
(iv) Upon completion of pleadings, the writ petition
was finally heard on 28.02.2025. By the judgment/order passed
therein, the impugned Memo dated 27.03.2014 as well as Memo
dated 23.02.2023 were set aside, and the writ petition was
allowed. The respondent authorities were consequently directed
to take a fresh decision, in accordance with law, with respect to
the petitioner’s claim for appointment on compassionate
grounds within a stipulated period.
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5. Mr. Kinkar Kumar, learned Counsel for the
appellants, while taking this Court through the impugned
judgment/order passed by the learned Single Judge, submitted
that once the very appointment of the petitioner’s father had
been found to be “illegal” by the High-Level State Committee
constituted pursuant to the directions of the learned Division
Bench in L.P.A. No. 946 of 2003, and such findings have also
received affirmation from the Hon’ble Apex Court, the benefit
of compassionate appointment cannot be extended to the present
writ petitioner, who is the son of a deceased employee whose
appointment stood declared illegal and non est in the eyes of
law. It is further contended that the learned Single Judge failed
to appreciate that, in view of the law laid down in Kirti
Narayan Prasad (supra) and Devendra Sharma (supra),
wherein appointments of similarly situated persons have been
held to be “illegal” and “forged”, no subsequent event can
validate such appointments, nor can any service benefits flow
therefrom particularly when the writ petitioner has failed to
establish that his father’s appointment was regular and in
accordance with law.
6. Mr. Kinkar, further submitted that the learned
Single Judge has misinterpreted the order passed in M.J.C. No.
4797 of 2018 by holding that the judgments of the Hon’ble
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Apex Court operate in personam and not in rem, and thereby
erroneously concluded that the respondents were not justified in
rejecting the petitioner’s claim for compassionate appointment
by relying upon judgments of the Hon’ble Supreme Court in
cases to which neither the petitioner nor his father was a party. It
is lastly contended that the grant of certain service benefits
pursuant to orders passed in contempt proceedings does not
have the effect of curing an otherwise illegal appointment or
converting it into a valid one, particularly when such benefits
were extended subject to the outcome of the pending L.P.A.
preferred by the State. Moreover, he submitted that if any
benefit has been erroneously conferred upon a person or a class
of persons without any legal basis, the same cannot be claimed
as a matter of right by others on the ground of parity or equality,
as the principle of equality cannot be invoked to perpetuate an
illegality. In support of the aforesaid submissions, reliance has
been placed on the judgment rendered in L.P.A. No. 1138 of
2024 (State of Bihar & Ors. vs. Upendra Sharma).
7. Per contra, Mr. Shiv Kumar, learned Counsel
appearing for the respondent-writ petitioner, refuting the
aforesaid submissions, submitted that once the order of
termination of the petitioner’s father stood quashed by this
Court vide order dated 06.10.2009 passed in C.W.J.C. No. 6575
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of 2009, and the said order has attained finality, the concerned
authorities are duty-bound to consider the claim of the
dependent of the deceased employee for appointment on
compassionate grounds in accordance with law. It is further
contended that an identically situated person, namely Munna
Kumar, had approached this Court in C.W.J.C. No. 1322 of
2018, wherein direction was issued to consider his case for
compassionate appointment, and pursuant thereto, he has been
duly appointed. It is submitted that denial of similar
consideration to the present petitioner would be arbitrary and
discriminatory.
8. Mr. Shiv Kumar, learned Counsel appearing for the
respondent/writ petitioner, further contended that it is an
admitted position that the petitioner’s father was reinstated in
service after his termination order was set aside, and he was
extended all consequential benefits, including salary for the
period he had worked or remained out of service, as well as
death-cum-retiral benefits.
9. In such circumstances, it is urged that since the
petitioner’s father died in harness and the order passed by the
learned Single Judge to the extent it relates to the petitioner’s
father has not been set aside till date, the writ petitioner is
entitled, at the very least, to consideration of his claim for
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appointment on compassionate grounds in accordance with law.
10. Having heard the learned counsel for the
respective parties at length, and upon perusal of the materials
available on record as well as the impugned judgment/order
passed by the learned Single Judge, the questions that arise for
consideration before this Court lie within a narrow compass, and
are formulated as follows:
ISSUES
(i) As to whether the law laid down by
the Hon’ble Supreme Court in Kirti Narayan
Prasad (supra) and Devendra Sharma (supra)
would be applicable to the case of the present
writ petitioner, particularly when neither the
petitioner nor his father was a party to the said
proceedings?
(ii) Whether the services of the
petitioner’s father, who died in harness on
15.04.2012, can be declared “illegal”
posthumously, without affording him an
opportunity to contest such findings?
(iii) Whether, the State and its authorities
having extended all consequential service
benefits, including salary and death-cum-retiral
dues to the petitioner’s father, it is open to them
at this stage to treat his appointment as illegal?
(iv) Whether, in the facts and
circumstances of this case, the State is legally
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justified in declining to consider the claim of
the writ petitioner for appointment on
compassionate grounds; and
(v) Whether the petitioner’s claim of
parity with similarly situated persons, such as
Munna Kumar, can be denied without any
justifiable basis?
11. Having formulated the aforesaid issues; for its
consideration, this Court now proceeds to examine the same in
the light of the pleadings on record, the submissions advanced
by the learned counsel for the parties, and the settled principles
of law.
12. Issue No. I: As to whether the law laid down by
the Hon’ble Supreme Court in Kirti Narayan Prasad (supra)
and Devendra Sharma (supra) would be applicable to the case
of the present writ petitioner, particularly when neither the
petitioner nor his father was a party to the said proceedings?
12.1 It is not in dispute that the petitioner’s father,
along with several others engaged on daily wage basis in
different regional offices of the Health Department, was initially
restrained from discharging his duties and was subsequently
terminated, leading to multiple rounds of litigation. In order to
resolve the controversy, a Five-Men Committee was constituted
pursuant to the order dated 26.06.2006 passed in L.P.A. No. 946
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of 2003, to examine the legality of such appointments.
12.2 The Five-Men Committee, upon a thorough
examination of the records and after conducting an extensive
inquiry, submitted its report categorizing the concerned
employees into three classes viz., “irregular”, “illegal”, and
“forged”. The report identified 91 employees whose
appointments were found to be “irregular” and whose services
were consequently directed to be regularized as a one-time
measure, in view of the directions contained in Uma Devi (3)
(supra). The remaining 228 persons were found to be illegally
appointed and 358 persons as forged, whose services were
terminated, consequently. Aggrieved thereby, the affected
employees challenged the said report and the consequential
orders of termination before this Court, and the writ petitions
were allowed.
12.3 The matters ultimately reached the Hon’ble
Supreme Court in Kirti Narayan Prasad (supra) and Devendra
Sharma & Ors. (supra). A three-Judge Bench of the Hon’ble
Supreme Court, in Kirti Narayan Prasad (supra), while
reiterating the mandate of the Constitution Bench judgment in
Uma Devi (3) (supra), held as follows:
“16. In the instant cases, the writ
petitioners have filed the petitions before the
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High Court with a specific prayer to regularise
their service and to set aside the order of
termination of their services. They have also
challenged the report submitted by the State
Committee. The real controversy is whether the
writ petitioners were legally and validly
appointed. The finding of the State Committee is
that many writ petitioners had secured
appointment by producing fake or forged
appointment letter or had been inducted in
government service surreptitiously by the Civil
Surgeon-cum-Chief Medical Officer concerned
by issuing a posting order. The writ petitioners
are the beneficiaries of illegal orders made by
the Civil Surgeon-cum-Chief Medical Officer.
They were given notice to establish the
genuineness of their appointment and to show-
cause. None of them could establish the
genuineness or legality of their appointment
before the State Committee. The State
Committee on appreciation of the materials on
record has opined that their appointment was
illegal and void ab initio. We do not find any
ground to disagree with the finding of the State
Committee. In the circumstances, the question
of regularisation of their services by invoking
para 53 of the judgment in Umadevi (3) does
not arise. Since the appointment of the
petitioners is ab initio void, they cannot be said
to be the civil servants of the State. Therefore,
holding disciplinary proceedings envisaged by
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Article 311 of the Constitution or under any
other disciplinary rules shall not arise.
(Emphasis Supplied)
17. Therefore, the civil appeals filed
by the writ petitioners in the aforesaid batch of
appeals are hereby dismissed. The civil appeals
filed by the State of Bihar are allowed and the
writ petitions filed before the High Court of
Patna in the said cases are hereby dismissed.
There shall be no order as to costs.”
12.4 Similarly, in Devendra Sharma (supra), a two-
Judge Bench of the Hon’ble Supreme Court, following the
dictum laid down in Kirti Narayan Prasad (supra), held that the
appointments in question could not be treated as “irregular”,
but were clearly “illegal” in terms of the law laid down in Uma
Devi (3). The Court observed that such appointments were made
without any sanctioned posts, without any advertisement
inviting applications from eligible candidates, and without
following any recognized recruitment procedure. It was further
held that such appointments were nothing but back-door entries,
reflecting nepotism and favouritism, and therefore, by no
judicial standard could they be termed “irregular”; rather, they
were illegal, having been made through a wholly arbitrary
process.
12.5 Upon a conjoint reading of the aforesaid
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decisions, it emerges that the Hon’ble Supreme Court approved
the course adopted by the State and the report submitted by the
Committee issued in compliance with the decision of the
learned Division Bench in Purinder Solanki (supra). The
Committee had duly considered the materials furnished by the
concerned employees and arrived at a categorical finding that
the appointments made were vitiated from very inception and
were liable to be set aside, leading to the issuance of the
impugned termination orders. The father of the petitioner was
also subjected to enquiry conducted by the duly constituted
Committee and his appointment was found to be illegal like
many other persons and finally the findings of the Committee’s
report was duly accepted by the Hon’ble Supreme Court.
12.6 It would also be worth noting that the Hon’ble
Supreme Court further observed that, in the peculiar facts and
circumstances of the case, the principles of natural justice were
not violated merely because no individual opportunity of
hearing was afforded to the employees prior to termination,
particularly in view of the foundational illegality attached to
their appointments. Besides the fact, such Committee had issued
public notices and 987 candidates appeared before the
Committee, which had considered the materials supplied by the
employees and then came to a firm decision to the effect that all
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these appointments made by Dr. Mallik were vitiated since the
inception.
12.7 Having discussed the aforesaid aspects, it stands
crystallized that the very legality of the appointment of the
petitioner’s father, along with thousands of other similarly
situated employees, was subjected to a detailed inquiry
conducted by a High-Level Committee constituted pursuant to
the judgment of the Division Bench of this Court. The report of
the Committee, in unequivocal terms, classified such
appointments under the categories of “irregular”, “illegal”, and
“fraudulent”.
12.8 It is not in dispute that the petitioner’s father fell
within the category of illegal appointees. Nevertheless, upon
challenge being made, the order of termination was set aside
and the petitioner’s father came to be reinstated. However, the
State preferred a Letters Patent Appeal, which was registered as
L.P.A. No. 300 of 2015. In the meantime, the petitioner’s father
expired, though his reinstatement remained subject to the
outcome of the said L.P.A.
12.9 The report of the Committee was ultimately
subjected to scrutiny before the Hon’ble Supreme Court, and the
Hon’ble Supreme Court did not find any reason to differ from
the findings recorded therein. Consequently, this Court finds no
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difficulty in accepting the veracity and correctness of the said
report.
12.10 Thus, in the considered opinion of this Court,
the law laid down by the Hon’ble Supreme Court in Kirti
Narayan Prasad and Devendra Sharma (supra) shall squarely
apply to the case of the present writ petitioner, notwithstanding
the fact that neither the writ petitioner nor his deceased father
was a party to the aforesaid cases.
13. Issue No. II: Whether the services of the
petitioner’s father, who died in harness on 15.04.2012, can be
declared “illegal” posthumously, without affording him an
opportunity to contest such findings?
13.1 Before answering the issue, as culled out
hereinabove, it would be pertinent to observe that, undisputedly,
the death of a delinquent during the pendency of disciplinary
proceedings would ordinarily result in abatement of such
proceedings. However, it is equally well settled that where the
death occurs after conclusion of the inquiry and when the matter
is pending either for final orders or at the appellate stage, the
situation stands on a different footing, and there can be no
abatement of disciplinary proceedings which have already
attained finality.
13.2 In such circumstances, the right to sue survives,
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and the legal heirs, if desirous of contesting the findings of guilt
or the order of punishment passed by the disciplinary authority,
may pursue the appeal already preferred by the deceased
delinquent or may themselves prefer an appeal where the
delinquent has expired after passing of the order of penalty. If,
while pursuing such appellate remedy, the legal heirs are able to
demonstrate that the matter requires reconsideration at the stage
of the disciplinary authority by way of remand, the proceedings
may then be held to have abated; otherwise, not.
13.3 A learned Division Bench of this Court, in The
State of Bihar & Ors. v. Shanti Kumari & Ors. [L.P.A. No.247
of 2015], while emphasizing the aforesaid legal position,
categorically observed as follows:
“A death of the delinquent at the
stage of disciplinary proceeding and at the
stage of appellate proceeding is vastly different.
In fact if the death of a delinquent occurs in the
midst of the disciplinary proceeding there can
be no confusion that the proceeding would
abate instantly. But the situation would be
vastly different if the death takes place after the
proceeding has concluded and the matter is
resting with the Disciplinary Authority for final
orders or after orders are passed or where the
death takes place at the appellate stage.”
The learned Division Bench, in the afore-noted case,
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while considering the challenge to the order passed by the
learned Single Judge whereby the writ petition was allowed and
the disciplinary proceeding was held to have abated and the
State Government was directed to extend consequential benefits
to the substituted legal heirs of the deceased Government
servant, disagreed with the findings recorded by the learned
Single Judge on the issue of abatement of disciplinary
proceedings as well as the direction for remand to the appellate
authority.
13.4 The learned Division Bench held that the view
taken by the learned Single Judge was contrary to the settled
legal position discussed hereinabove. While emphasizing the
provisions contained in Order XXII Rule 1 read with Rule 11 of
the Code of Civil Procedure, as also Section 394 of the Code of
Criminal Procedure, the Division Bench observed that the right
to sue survives in favour of the legal heirs, who are fully entitled
to pursue the matter at the appellate stage for examining the
legality and validity of the order passed by the original
authority.
13.5 Now again coming to the facts of the present
case, it would appear that during the lifetime of the petitioner’s
father, he was restrained to discharge duty and later on
terminated from service, whereafter he challenged the said
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action by filing C.W.J.C. No. 5114 of 2004. Subsequently, in
order to resolve the controversy regarding the legality of such
appointments, a batch of writ petitions and Letters Patent
Appeals came to be disposed of analogously in Purinder
Solanki (supra) with a direction for constitution of a
Committee. The petitioner’s father was also subjected to inquiry
by the said Committee, which categorically recorded a finding
that his appointment fell within the category of “illegal
appointees”.
13.6 Upon challenge to the inquiry report, the learned
Single Judge, in C.W.J.C. No. 6575 of 2009 and analogous
cases, held that the impugned inquiry report had been prepared
in complete violation of the principles of natural justice and the
Committee had ignored relevant Government circulars while
categorizing the petitioners as illegal and forged appointees;
and had merely relied upon the dispatch register without
examining the signatures under which the appointment letters
had allegedly been issued.
13.7 However, the aforesaid order was challenged
during the lifetime of the petitioner’s father, by preferring a
Letters Patent Appeal on 19.12.2011, which was subsequently
registered as L.P.A. No. 300 of 2015. When the said L.P.A. was
taken up on 18.12.2018, it was submitted on behalf of the writ
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petitioner that an identical issue was pending consideration
before the Hon’ble Supreme Court in S.L.P.(C) No. 2806 of
2014, and accordingly the matter was directed to be listed after
disposal of the said Special Leave Petition.
13.8 In the meanwhile, upon information being
furnished regarding the death of the original writ petitioner, the
State filed an application for substitution of his legal heirs,
whereafter his son, Ravi Shankar Kumar, was substituted as the
writ petitioner in place of the deceased original petitioner.
However, vide order dated 14.12.2020, L.P.A. No. 300 of 2015,
arising out of the common order dated 06.10.2009 passed by the
learned Single Judge, came to be disposed of as abated upon
submission made on behalf of the writ petitioner that his father
had already expired and the legal heirs had not been substituted
within time.
13.9 Notwithstanding the aforesaid facts, once this
Court finds that the decisions rendered by the Hon’ble Supreme
Court in Kirti Narayan Prasad and Devendra Sharma (supra)
are fully applicable to the facts of the present case, and further
that the services of the petitioner’s father had already been
categorized as “illegal” during his lifetime, based upon the
report of the Committee, the finding of which was duly accepted
in the above noted cases, this Court finds no difficulty in
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reaffirming and accepting such finding of illegal appointment in
light of the authoritative pronouncement of the Hon’ble
Supreme Court. Even, if it is after the death of the petitioner’s
father, in view of the settled position of law that when death
occurs after conclusion of inquiry or the matter is pending,
either for final order or appellate stage, there can be no
abatement of proceeding. Accordingly, Issue No.II stands
answered.
14. Issue No. III: Whether, the State and its
authorities having extended all consequential service benefits,
including salary and death-cum-retiral dues to the petitioner’s
father, it is open to them at this stage to treat his appointment
as illegal?
14.1 To answer the aforesaid issue, this Court again
finds it necessary to recapitulate the relevant facts. Undoubtedly,
the order of termination passed against the petitioner’s father
had been set aside by the learned Single Judge; however, the
same was challenged by the State by filing a Letters Patent
Appeal. In the interregnum, on account of initiation of contempt
proceedings being M.J.C. No. 1848 of 2010 by the petitioner’s
father, he was reinstated in service, though such reinstatement
was expressly made subject to the final outcome of the L.P.A.
preferred by the State.
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14.2 It is well settled that where reinstatement,
consequential salary, or death-cum-retiral benefits are extended
to an employee during the pendency of litigation and are
expressly made subject to the result of an appeal or other
judicial proceedings, any action taken during such interregnum
period must necessarily abide by the final verdict rendered in
the lis. There may be several reasons, as evident in the present
case, which resulted in payment of salary and release of death-
cum-retiral dues to the petitioner’s father. Nevertheless, the
order of the learned Single Judge, pursuant to which
reinstatement and consequential benefits were granted,
ultimately came up for consideration before the highest Court of
the land.
14.3 Once the matter was examined by the Hon’ble
Supreme Court, any findings recorded by the learned Single
Judge, or even affirmed by the learned Division Bench,
necessarily became subject to and governed by the authoritative
pronouncement of the Hon’ble Supreme Court. In the present
case, the Hon’ble Supreme Court has categorically upheld the
findings of the State Committee that the appointments in
question were illegal and void ab initio.
14.4 Therefore, irrespective of the fact that the
petitioner’s father had been granted consequential service
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benefits, including salary and death-cum-retiral dues during the
pendency of the proceedings, there exists no legal impediment
even at this stage in treating the very appointment as illegal in
terms of the law laid down in Kirti Narayan Prasad and
Devendra Sharma (supra). Accordingly, Issue No. III is
answered.
15. Issue No. IV: Whether, in the facts and
circumstances of this case, the State is legally justified in
declining to consider the claim of the writ petitioner for
appointment on compassionate grounds?
15.1 Before proceeding to consider the aforesaid
issue, it would be apposite to observe that appointment on
compassionate grounds is an exception to the mandate of Article
14 of the Constitution of India. The right to seek such
appointment is not an inherent right, but is entirely dependent
upon the prevailing scheme or the statutory rules, if any,
governing the field. It is also pertinent to note that service
benefits are purely statutory in nature and springs from the legal
right of an employee to validly hold the post. It is only by virtue
of such lawful entitlement to the post that a person becomes
entitled to receive the consequential service benefits attached
thereto.
15.2 It would be prudent to refer to the Full Bench
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decision of this Court in Rita Mishra v. Director Primary
Education [1987 SCC OnLine PAT 159], wherein the Court,
while dealing with appointments in the Education Department
and claims for salary despite the appointments being forged,
fraudulent, or illegal, declined such claims and observed as
follows:
“36. Right to salary stricto sensu
springs from a legal right to validly hold the
post for which salary is claimed. It is a right
consequential to a valid appointment to such
post. Therefore, where the very root is non-
existent, there cannot subsist a branch thereof
in the shape of a claim to salary. The rights to
salary, pension and other service benefits are
entirely statutory in nature in public service.
Therefore, these rights, including the right to
salary, spring from a valid and legal
appointment to the post. Once it is found that
the very appointment is illegal and is non est in
the eye of the law, no statutory entitlement for
salary or consequential rights of pension and
other monetary benefits can arise.”
15.3 Since this Court has already concluded in the
foregoing paragraphs that the appointment of the petitioner’s
father had been declared “illegal” by the Committee, the
findings whereof have subsequently been accepted by the
Hon’ble Supreme Court, it necessarily follows that no employee
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can claim entitlement to consequential service benefits unless
his appointment and continuance in service are held to be legal
and valid.
In the facts and circumstances of the present case,
therefore, the State is legally justified in declining to consider
the claim of the writ petitioner for appointment on
compassionate ground. Issue No. IV is answered accordingly.
16. Issue No. V: Whether the petitioner's claim of
parity with similarly situated persons, such as Munna Kumar,
can be denied without any justifiable basis?
16.1 To answer the aforesaid issue, this Court deems it
appropriate to refer to the settled proposition of law that Article
14 of the Constitution of India is not meant to perpetuate
illegality or fraud by extending the benefit of an erroneous
decision rendered in some other case. The Hon’ble Supreme
Court, in Basawaraj v. Special Land Acquisition Officer
[(2013) 14 SCC 81], has underscored that even if some similarly
situated persons have inadvertently or mistakenly been granted a
particular relief or benefit, such an order does not confer any
legal right upon others to claim identical relief.
16.2 The Hon’ble Supreme Court has consistently
held that if a wrong has been committed, the same cannot be
perpetuated. Equality is a positive concept and cannot be
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claimed in illegality. Therefore, Article 14 cannot be invoked
either by a citizen or enforced by a Court in a negative manner.
If any illegality or irregularity has been committed in favour of
an individual or a group of individuals, or if an erroneous order
has been passed by a judicial forum, others cannot invoke the
jurisdiction of a superior Court for repeating or multiplying the
same illegality or irregularity, nor can they seek parity on the
basis of such wrong decision. A wrong order or erroneous
decision in favour of one party does not create any enforceable
right in favour of another person to claim similar benefits.
The Hon’ble Supreme Court has further cautioned that
Article 14 cannot be stretched to such an extent so as to make
the functioning of the administration impossible.
16.3 This Court is also persuaded to recapitulate the
observations made by the Hon’ble Supreme Court in R.
Muthukumar & Ors. v. Chairman and Managing Director,
TANGEDCO & Ors.[2022 SCC OnLine SC 151], wherein, in
paragraph 28, it was observed as follows:
“28. A principle, axiomatic in this
country's constitutional lore is that there is no
negative equality. In other words, if there has
been a benefit or advantage conferred on one
or a set of people, without legal basis or
justification, that benefit cannot multiply, or be
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relied upon as a principle of parity or equality.
In Basawaraj v. Special Land Acquisition
Officer[(2013) 14 SCC 81], this court ruled
that:
“8. It is a settled legal proposition
that Article 14 of the Constitution is not meant
to perpetuate illegality or fraud, even by
extending the wrong decisions made in other
cases. The said provision does not envisage
negative equality but has only a positive aspect.
Thus, if some other similarly situated persons
have been granted some relief/benefit
inadvertently or by mistake, such an order does
not confer any legal right on others to get the
same relief as well. If a wrong is committed in
an earlier case, it cannot be perpetuated.”
16.4 It is now well settled that the guarantee of
equality before law is a positive concept and cannot be enforced
in a negative manner. Wrong decision by the Government does
not confer any right upon another person to enforce such wrong
order and claim parity or equality.
16.5 Once this Court has already concluded and held
that the appointment of the petitioner’s father was illegal in
terms of the law declared by the Hon’ble Supreme Court, as
noticed hereinabove, the petitioner’s claim of parity with Munna
Kumar and others, who are stated to have been granted
compassionate appointment, is wholly untenable both in law
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and on facts. Issue No. V is answered accordingly.
17. Upon consideration of the issues framed
hereinabove, this Court arrives at the following conclusions:
(i) The law laid down by the Hon’ble Supreme Court
in Kirti Narayan Prasad and Devendra Sharma (supra)
squarely applies to the case of the present writ petitioner,
notwithstanding the fact that the petitioner and/or his father was
not a party to the said proceedings, inasmuch as the appointment
of the petitioner’s father was also examined by the duly
constituted Committee and found to be “illegal”.
(ii) The services of the petitioner’s father can validly
be treated as “illegal” even after his death, since the inquiry
regarding the legality of his appointment had already attained
finality during his lifetime and the right to pursue the matter
survived at the appellate stage. Besides the fact that
Committee’s report, which crystallized the appointment of the
petitioner’s father as “illegal” stood affirmed by the Hon’ble
Supreme Court in Kirti Narayan Prasad and Devendra Shrama
(supra).
(iii) Mere grant of consequential service benefits,
including salary and death-cum-retiral dues during the pendency
of litigation, does not create any estoppel against the State,
particularly when such benefits were extended subject to the
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final outcome of the proceedings and the Hon’ble Supreme
Court has ultimately held the appointments to be illegal and
void ab initio.
(iv) Since compassionate appointment is not a vested
right and can arise only from a lawful and valid appointment,
the State was fully justified in declining the claim of the
petitioner for appointment on compassionate grounds after the
appointment of his father stood declared illegal.
(v) The petitioner cannot claim parity with other
persons who may have been granted similar benefits, as Article
14 of the Constitution does not envisage negative equality, nor
can illegality or an erroneous benefit extended in another case
be relied upon to claim similar relief.
18. Having answered all the issues and arrived at the
conclusions noted hereinabove, this Court, with utmost respect
to the learned Single Judge, is of the considered opinion that the
impugned judgment/order suffers from patent illegality and is
contrary to the law laid down by the Hon’ble Supreme Court in
Kirti Narayan Prasad and Devendra Sharma (supra).
Accordingly, the judgment/order dated 28.02.2025 passed in
C.W.J.C. No. 12607 of 2014 is hereby set aside. Consequently,
the writ petition stands dismissed.
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19. The present Letters Patent Appeal stands allowed.
20. There shall, however, be no order as to cost(s).
(Harish Kumar, J)
(Sangam Kumar Sahoo, CJ):
(Sangam Kumar Sahoo, CJ)
rohit/-
AFR/NAFR AFR
CAV DATE 16-04-2026
Uploading Date 14-05-2026
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