JUDGMENT : ANUBHA RAWAT CHOUDHARY, J. 1. This appeal has been filed against the judgment dated 21.12.2021 passed in W.P. (S) No. 1181 of 2017, whereby the writ petition filed by the appellant has been dismissed. 2. The appellant had filed the writ petition with a prayer for quashing the order dated 29.01.2016, so far it related to the late husband of the appellant, whose name appeared at S. No. 64 of the said order, by which the services of the late husband of the appellant was terminated by the State of Bihar after his death. The appellant had further prayed in the writ petition for a direction upon the respondents to appoint her son on compassionate ground as per the recommendation made by the establishment committee on 30.07.2016. 3. Before the learned writ Court, the appellant had raised various points including the point regarding passing of order of dismissal after death of her husband and that the State of Bihar had no jurisdiction to pass the order of termination when the husband of the appellant was lastly posted in the State of Jharkhand and continued to be in the State of Jharkhand till his death on 06.01.2016 and died while working at Primary Veterinary Hospital, Piska More, Ranchi. However, all the points as raised by the appellant was rejected by the learned writ Court. The learned writ Court also rejected the contention of the appellant that the Regional Director was fully empowered for appoint in view of the various judgments passed by the Hon’ble Supreme Court and the High Courts. The learned writ Court also took into consideration that the decision to terminate the services of the husband of the appellant with similarly situated persons was taken way back in the year 1998 itself and that the husband of the appellant along with others had moved the High Court challenging the action and the husband of the appellant continued to be in service by virtue of interim order passed in the writ petition being CWJC No. 2909 of 2000 and ultimately the writ petition was withdrawn on 10.11.2014 as no cause of action had arisen because no formal letter of removal or dismissal was ever passed. The learned writ Court was also of the view that the son of the appellant was not entitled for compassionate appointment as the initial appointment of the husband of the appellant was illegal and since the services of late husband of the appellant stood dismissed the question of compassionate appointment did not arise. The learned writ Court was of the view that the recommendation of the Committee was malice in law as well as on fact and even on the ground that one son of the deceased-employee was already in government employment. 4. The learned counsel appearing on behalf of the appellant, while assailing the impugned order passed by the learned writ Court, has submitted that the husband of the appellant was appointed as Chaukidar as back as on 21.06.1978 and thereafter he was appointed as peon on 21.08.1980 and his services were made permanent as peon on 23.03.1982. It has been submitted that it was only on 01.02.1988 the husband of the appellant was granted promotion to the post of Technical Assistant by the Revisional Director, Animal Husbandry Department and it was the order of promotion to the post of Technical Assistant which was subject matter of consideration in the various judgments passed by the Hon’ble Supreme Court and the High Courts on the ground that the Regional Director did not have the power to make appointment or grant promotion. The learned counsel has submitted that even if the promotion granted to the husband of the appellant on 01.02.1988 is taken to be illegal/void-ab-initio then also his appointment as a peon on 21.08.1980 and confirmed on 23.03.1982 cannot be disturbed and the husband of the appellant was required to be reverted back to the post he was already holding prior to the promotion to the post of Technical Assistant and, accordingly, the husband of the appellant can at best be said to have died on 06.01.2016 while in service in the post of peon. It has been further argued that once the husband of the appellant died while in service, the son of the appellant was entitled to compassionate appointment. 5. It has been further argued that once the husband of the appellant died while in service, the son of the appellant was entitled to compassionate appointment. 5. The learned counsel has also submitted that so far as the claim of compassionate appointment to the son of the appellant is concerned, the same was also sought to be disputed by the respondents by referring to the circular issued by the then State of Bihar with regard to compassionate appointment dated 12.07.1977 which provided that the compassionate appointment could be granted only if none of the members of the family was employed, but in the instant case, another son of the appellant was already employed. The learned counsel submits that at the time of the death of her husband i.e. on 06.01.2016, the State of Jharkhand had come up with its own circular for grant of compassionate appointment dated 01.12.2015 and as per clause 8 thereof there is a clear provision that no compassionate appointment will be provided if the husband or the wife of the deceased employee as the case may be was found to be in government service. The learned counsel submits that merely because another son of the appellant was in government service, the same was not an impediment in grant of compassionate appointment to another son of the appellant. The learned counsel has also submitted that the appellant had duly responded to the query made by the respondents regarding employment of one son of the appellant in government service and stated that the other son of the appellant, namely, Ram Krishna Ghosh was in government service but he was living separately and that she had applied for compassionate appointment of her son Biswajeet Ghosh. 6. The learned counsel has submitted that the aforesaid aspects of the matter have not been properly considered by the learned writ Court and, therefore, the impugned order of termination of her husband is fit to be set-aside and the son of the appellant, namely, Biswajeet Ghosh is entitled for grant of compassionate appointment as was already recommended by the Establishment Committee. 7. Learned counsel appearing on behalf of the respondents, while opposing the prayer of the appellant, has submitted that the learned writ Court has considered all the aspects of the matter and dismissed the writ petition and the same does not call for any interference. 8. 7. Learned counsel appearing on behalf of the respondents, while opposing the prayer of the appellant, has submitted that the learned writ Court has considered all the aspects of the matter and dismissed the writ petition and the same does not call for any interference. 8. However, during the course of argument, the learned counsel appearing on behalf of the respondents could not point out any such provision in the circular issued by the State of Jharkhand dated 01.12.2015 disentitling the claim of compassionate appointment to a dependent of an employee if another son was already in government employment. However, the learned counsel has again referred to the circular issued by the then State of Bihar as back as in the year 1977 to submit that as per the said order if any member of the dependent family of the employee is in government service, the family is not entitled for compassionate appointment. 9. The foundational facts are not in dispute. The husband of the appellant was appointed as Chaukidar on 21.06.1978 on temporary basis and thereafter he was appointed as peon on 21.08.1980 and his appointment was made permanent on 23.03.1982 and his service book was also opened. Thereafter, on 01.02.1988 the husband of the appellant was given promotion to the post of Technical Assistant by the Regional Director, Animal Husbandry Department, where the name of the husband of the appellant stood at serial No. 20 and on 20.02.1988 the pay-scale of the husband of the appellant was also fixed. A decision dated 23.10.1998 was taken by the then State of Bihar canceling the promotion/appointment of all the persons who were appointed or promoted by the Regional Director, Animal Husbandry Department. In such circumstances, the husband of the appellant along with others filed a writ petition before the Hon’ble Patna High Court being CWJC No. 2909 of 2000 where in an interim order dated 31.10.2000 was passed to the effect that if the petitioners have not been removed, they would not be removed from the post. However, the said writ petition was withdrawn vide order dated 10.11.2014 as the counsel for the petitioners in CWJC No. 2909 of 2000 conceded that no cause of action had arisen and sought permission to withdraw the writ petition. 10. However, the said writ petition was withdrawn vide order dated 10.11.2014 as the counsel for the petitioners in CWJC No. 2909 of 2000 conceded that no cause of action had arisen and sought permission to withdraw the writ petition. 10. Pursuant to the aforesaid interim order, the husband of the appellant was posted at Primary Veterinary Hospital, Piska More, Ranchi and while in service he died due to cardiac arrest on 06.01.2016. After the death of the husband of the appellant, the appellant submitted representation for compassionate appointment of her son, which was duly considered by the Establishment Committee in their meeting held on 30.07.2016 and the Establishment Committee recommended the name of the appellant’s on for his appointment to the post of Clerk. 11. In the meantime, vide order impugned in the writ petition dated 29.01.2016, the State of Bihar communicated to the State of Jharkhand that the services of the husband of the appellant along with others were terminated and in the said order the name of the husband of the appellant appeared at Serial No. 64. In such circumstances, the appellant filed the writ petition challenging the order dated 29.01.2016 so far as it related to her late husband issued after his death and also prayed for a direction upon the respondents to appoint her son on compassionate ground as per the recommendation made by the Establishment Committee on 30.07.2016. 12. The writ petition was opposed by the respondents justifying the order of termination and so far as the claim of compassionate appointment of the son of the appellant is concerned reliance was placed on the circular dated 12.07.1977 of the then state of Bihar clarifying that that the compassionate appointment may be granted only if none of the members of family is employed. 13. The writ petition was dismissed upholding the termination of the late husband of the appellant and therefore there was no occasion to consider the claim of compassionate appointment of the son of the appellant. 14. 13. The writ petition was dismissed upholding the termination of the late husband of the appellant and therefore there was no occasion to consider the claim of compassionate appointment of the son of the appellant. 14. After hearing the learned counsels for the parties and going through the writ records and also the records of the Letters Patent Appeal, this Court finds that it is an admitted position on record that the husband of the appellant was appointed as Chaukidar on 21.06.1978 on temporary basis and thereafter he was appointed as peon on 21.08.1980 and his appointment was made permanent on 23.03.1982 and his service book was also opened. This Court finds that so far as the stage till the appointment of the husband of the appellant as peon and his confirmation on 23.03.1982 is concerned, the same is not under any cloud. It is only the promotion of the late husband of the appellant granted on 01.02.1988 to the post of Technical Assistant by the Regional Director, Animal Husbandry Department which was the subject matter of consideration in the various litigations as the then Regional Director, Animal Husbandry Department did not have the necessary jurisdiction to create posts and make appointments. 15. A decision dated 23.10.1998 was taken by the then State of Bihar for cancellation of illegal promotions/appointments of all the employees who were appointed or promoted by the Regional Deputy Director. The content of the said circular dated 23.10.1998 is quoted as under: 16. Upon perusal of the said circular, it is apparent that the same related to direct recruitment and promotion to the post of Technical Assistants in the Animal Husbandry Department and as per the said circular, notices were issued to the concerned employees as to why their promotion or appointment to the post of Technical Assistant be not cancelled. However, being aggrieved by the circular dated 23.10.1998 and before any show cause could be issued to the husband of the appellant, he filed writ petition before the High Court of Patna in CWJC No. 2909 of 2000, wherein an interim order dated 31.10.2000 was passed that if the petitioners of the said case were not already removed, they shall not be removed from the post. However, the writ petition of the late husband of the appellant being CWJC No. 2909 of 2000 was permitted to be withdrawn vide order dated 10.11.2014 as the counsel for the petitioners of the said case had conceded that no cause of action has arisen and accordingly sought permission to withdraw the petition. While leave was granted to withdraw the writ petition, interim relief which was granted earlier was also vacated by the same order. 17. As the interim order stood vacated and the writ petition being CWJC No. 2909 of 2000 was also withdrawn by observing that no cause of action had arisen, an order dated 29.01.2016 was passed terminating the services of the husband of the appellant mentioning his name at Serial No. 64 and showing his designation as Technical Assistant and the column with regard to any action taken earlier remained vacant. Admittedly, by this time, the husband of the appellant had expired on 06.01.2016. Thereafter, vide order dated 30.07.2016, a decision was taken by the Establishment Committee and a recommendation was made to the District Animal Husbandry Officer to grant compassionate appointment to the son of the appellant, namely, Biswajeet Ghosh under Class-III post by taking into consideration that the husband of the appellant had expired while in service working as Technical Assistant, a class-III post. 18. However, as soon as the appellant came to know about the termination of her husband, she raised a protest by saying that even if the promotion of her husband to the post of Technical Assistant was found illegal, he was to be reverted to the post of peon instead of being terminated. She also raised a grievance that in spite of a recommendation made by the Establishment Committee for appointment of her son Biswajeet Ghosh on compassionate ground, the same was not being granted and she also raised a grievance that there was a demand of illegal gratification. 19. Upon perusal of the circular dated 23.10.1998, this Court finds that the same was essentially in relation to the appointments made in the post of Technical Assistant by way of direct appointment or promotion and had nothing to do with the initial appointment of late husband of the appellant to the post of peon who was also confirmed in service way back in the year 1982. Thus, the consequence of various judgments touching upon the appointment and promotion to the post of Technical Assistant has no bearing in the matter of initial appointment of late husband of the appellant to the post of peon in the year 1982 itself and the impugned order dated 29.01.2016 terminating the services of late husband of the appellant instead of reverting him to the post of peon cannot be sustained in the eyes of law. 20. The aforesaid aspects of the matter have not been properly considered by the learned writ court and accordingly the impugned order passed by the learned writ Court is set-aside. 21. In view of the aforesaid findings, the order impugned in the writ petition dated 29.01.2016 shall only have the effect of taking away the promotion granted to the late husband of the appellant to the post of Technical Assistant and, therefore, the husband of the appellant shall be deemed to have continued in the post of peon in which he was appointed and confirmed way back in the year 1982. 22. In aforesaid circumstances, the husband of the appellant would be deemed to have died in harness while working as peon, class IV post in the year 2016 and, consequently, all the benefits flowing out of his death while working as peon, a class IV post has to follow. This would also include the claim for consideration for compassionate appointment as per applicable circular of the state government. 23. This Court is of the considered view that once the circular of the State of Jharkhand with regards to grant of compassionate appointment has come into force with effect from 01.12.2015, there was no occasion to refer to any circular of the year 1977 issued by the then State of Bihar to deny compassionate appointment to the son of the appellant on the ground that another son of the appellant was in government service. Paragraph 8 of the said circular clearly provides that compassionate appointment cannot be granted if the husband or wife of the deceased employee, as the case may be, is in government service. There is no such clause in the circular dated 01.12.2015 disentitling the claim of compassionate appointment if one or the other son of family member of the deceased employee is already in government service. 24. Paragraph 8 of the circular dated 01.12.2015 is quoted as under: 25. There is no such clause in the circular dated 01.12.2015 disentitling the claim of compassionate appointment if one or the other son of family member of the deceased employee is already in government service. 24. Paragraph 8 of the circular dated 01.12.2015 is quoted as under: 25. In view of the aforesaid findings, the respondents cannot be permitted to rely upon the circular issued by the then State of Bihar dated 12.07.1977 providing that the compassionate appointment may be granted only if none of the family members of the deceased is employed as the case of compassionate appointment to the son of the appellant will be guided by the circular issued by the State of Jharkhand dated 01.12.2015 as the date of death of the husband of the appellant is 06.01.2016. Accordingly, merely because one of the sons of the appellant was in public employment that cannot be a ground to deny compassionate appointment to the other son of the appellant in connection to whom the Establishment Committee took a decision to recommend the name of the son of the appellant for appointment on class-III post subject to the candidate qualifying the Hindi typing test. However, since the appointment of late husband of the appellant Shanti Chandra Ghosh is affirmed on class-IV post, the son of the appellant shall be granted appointment on class-IV post subject to his fulfilling other necessary conditions. 26. LPA No. 78 of 2022 is allowed to the aforesaid extent. 27. Pending interlocutory application, if any, is closed.