Dr Dhananjaya Y Chandrachud, J
1 A Division Bench of the High Court of Judicature at Patna by its judgment
dated 30 March 2015 affirmed the view of the learned Single Judge, and directed
the grant of compassionate appointment to the respondents on a regular scale of
pay in the services of the State Government and not on the post of Nagar
Shikshaks to which they were appointed. This direction was based on an
instruction dated 17 October 2008 issued by the Government of Bihar, which has
SignaturesinceNot Verified been withdrawn. Aggrieved by order of the Division Bench, the State of
2 The father of the first respondent died in harness on 7 May 2006, while in
employment as an Assistant Teacher in a primary school. The mother of the
second respondent was also an Assistant Teacher in a primary school when she
died in harness on 9 September 2006. On 25 January 2008 and 27 June 2008,
the District Compassionate Appointment Committee1 considered the request of
the respondents for compassionate appointment. On 12 April 2008, the first
respondent was offered employment on the post of Nagar Shikshak under Rule
10 of the Bihar Municipal Body Elementary Teachers (Employment and Service
Conditions) Rules, 20062. On 19 August 2008, the second respondent was
offered appointment as a Nagar Shikshak on the basis of the recommendation of
the DCAC. On 17 October 2008, the Personnel and Administrative Reforms
Department of the Government of Bihar, issued an instruction stating that the
posts of Panchayat Teachers and Block Teachers are not borne on the service of
the government, hence it is not within the jurisdiction of the DCAC to recommend
appointments to those posts. The instruction stated thus:
“..that it has been clear from the perusal of the minutes of the
meeting of few District Compassionate Committees that the
recommendation has been made for the appointment against
the post of Panchayat Teacher, Block teacher, town teacher
on the compassionate ground by the District Compassionate
Committee. The post of the Panchayat Teacher, Block
Teacher are not the post of the Government and making a
recommendation for the appointments on such post on the
compassionate ground does not fall under the jurisdiction of
the compassionate committee.
As per the direction, I have to say that it should be ensured
that the recommendation be not made for the appointment
against the appointment on post of the Panchayat Teacher,
Block Teacher. If any such recommendation has been made
then it should be reconsidered by the District Compassionate
1 DCAC 2 2006 Rules
Committee and recommendation be ensured as per the
circular issued by this.”
3 The respondents instituted writ proceedings under Article 226 before the
High Court, seeking a mandamus for their appointment on a compassionate basis
to posts under the control of the State Government. On 15 May 2009, a learned
Single Judge of the High Court accepted the grievance of the respondents that
the posts of Nagar Shikshak to which they were appointed were not government
posts with a regular pay scale but were posts with fixed emoluments. This, in the
view of the learned Single Judge, was contrary to the Government Instruction
dated 17 October 2008. In consequence, while allowing the writ petition, the
learned Single Judge directed that the recommendations of the DCAC be
implemented “strictly” in accordance with the instruction dated 17 October 2008.
4 Subsequently, on 22 June 2009, the State Government issued a fresh
instruction which clarified that it is permissible for the Committee constituted
under the Rules to make compassionate appointments to the posts of panchayat
teachers/block teachers/town teachers. The relevant part of the instruction is
extracted below:
“..the provision has been made as per the Rule 10 of Bihar
Panchayat Primary Teacher Employment and Service
Conditions Rules, 2006 :-
“10 Employment/Appointment on the basis of compassionate
ground:- Employment/appointment against the vacancy
available on the post of Panchayat Teacher/Block Teacher
could be made in accordance with the eligibility prescribed on
the basis of the compassionate ground in respect of the
dependents of the teaching or non-teaching staff, if he gives
the consent clearly for this :-
In view of the terms and conditions prescribed for the
appointment, the appointment on the compassionate ground
by the aforesaid committee, in view of the Circular of the
Personnel & Administrative Department of the Government. It
will be compulsory for untrained dependents to obtain the
training within a period of six years for the date of
appointment”.
Such provisions has also been made under Bihar Panchayat
Primary Teacher Employment and Service Conditions Rules,
2006. In the aforesaid provisions, the meaning of the word
committee is with respect to the committee constituted under
the Rule. In this way, it is clear that the appointment of the
dependent of the teaching and non-teaching employees can
be made on the basis of compassionate basis on the post of
Panchayat Teacher/Block Teacher/town Teacher on the
regular pay by the committee constituted under the aforesaid
rules.”
5 A Letters Patent Appeal was filed by the state against the decision of the
Single Judge. The Division Bench, by its judgment dated 30 March 2015, held
that since the death of the employees while in service had taken place before the
2006 Rules were enforced, and the circular/instruction dated 17 October 2008
clarified that compassionate appointments were required to be made to a post in
the service of the government, the writ petition had been correctly allowed. The
Division Bench held that the instruction dated 22 June 2009, recalling the earlier
circular/instruction, would not take away the effect of the mandamus issued by
the Single Judge. The High Court also observed that in Vishwanath Pandey v
State of Bihar3 (“Vishwanath Pandey”), this Court had affirmed the view of a
Single Judge of the High Court that where the occurrence had taken place prior to
the enforcement of the Rules of 2006, the appointment would have to be made as
a teacher under the government.
6 Learned counsel appearing on behalf of the appellants submitted that
compassionate appointments are governed by the 2006 Rules. Under Rule 10,
3 (2013) 10 SCC 545
Nagar Shikshaks are to be appointed on compassionate grounds. Moreover, Rule
20 supersedes all previous rules, resolutions, orders and instructions. In the
present case, it was urged that the respondents consented to their appointment
and joined the post of Nagar Shikshak in terms of Rule 10. Hence, the High Court
was not justified in directing that their services to be shifted from the posts of
Nagar Shikshak to posts under the control of the Government. In the facts of this
case, it has been urged that the offers of appointment to the respondents as
Nagar Shikshaks were made prior to the instruction dated 17 October 2008.
Moreover, the appointments as Nagar Shikshaks being in accordance with the
2006 Rules, the High Court was not justified in directing the state to take over the
services. In this context, reliance has been placed on a judgment rendered by a
two Judge Bench of this Court in Mukesh v State of Bihar4 (“Mukesh”) on 3
April 2017, where the decision of this Court in Vishwanath Pandey has been
considered and distinguished.
7 On the other hand, learned counsel appearing on behalf of the
respondents supported the judgment of the High Court for the reasons which
weighed in the grant of relief. Learned counsel submitted that Letters Patent
Appeals filed by the State against similar decisions of the learned Single Judges
of the High Court were dismissed, and this Court dismissed the Special Leave
Petitions filed under Article 136 of the Constitution by the State. In this context,
reliance has been placed on the orders passed by this Court in:
(i) State of Bihar v Pooja Mishra5 (“Pooja Mishra”); and
4 (2017) 5 SCC 383 5 SLP(C) No. 029453 of 2015
(ii) State of Bihar v Sanjay Kumar6 (“Sanjay Kumar”).
The above Special Leave Petitions were dismissed on 9 October 2015 and 11
November 2016 respectively. It was urged that this Court should follow the same
course of action by dismissing the civil appeal.
8 The 2006 Rules were notified on 1 July 2006. Rule 3 contains a
categorisation of Elementary teachers:
“3. Category of Town Elementary Teachers – There shall be
two category of Town Elementary Teachers :-
(A) Nagar Shikshak (Trained)
(B) Nagar Shikshak (Untrained)”
Rule 8 provides for conditions of eligibility. Rule 9 provides for the procedure for
appointment. Rule 10 contains the following provision:
“10. Appointment on compassionate ground :- The
employment may be made of the dependents of teaching/
non-teaching employees on compassionate ground as per
determined qualification on the post of Town Teacher
(Trained) and Town Teacher (Un-Trained) against the
available vacancies, if he gives manifestly his consent for this.
The appointment may be made by aforesaid Committee in the
light of other conditions concerned with appointment on
compassionate ground by the Personnel Department of
Government. After the employment, un-trained dependents
shall acquire training within maximum 6 years.”
Rule 20, which contains a repeal and savings provision, is in the following terms:
“20. Repeal & Saving :- (i) From the date of enforcement of
this Rules, all the previous Rules, Resolutions, Orders and
Instructions regarding the employment of Primary Teachers/
Physical Teachers in urban area shall be deemed repealed.
(ii) But notwithstanding this repeal no effect shall be made on
any earlier Rules, Resolution, Order, Instruction etc. regarding
the salary etc. and Service Conditions of the teachers.”
6 SLP(C) No. 038376 of 2016
9 With the enforcement of the 2006 Rules, Rule 10 governs the appointment
of Nagar Shikshaks on compassionate grounds. The respondents were appointed
on 12 April 2008 and 19 August 2008, after the enforcement of the 2006 Rules.
Their appointments were in terms of Rule 10 of the 2006 Rules. The respondents
accepted the appointments. The learned Single Judge, in placing reliance on the
instruction dated 17 October 2008, failed to notice the 2006 Rules. The Division
Bench was of the view that withdrawal of the instruction dated 17 October 2008
by the subsequent instruction dated 22 June 2009 would not obviate compliance
with the mandamus issued by the Single Judge on 15 May 2009. The Division
Bench ignored the fact that both the respondents were appointed in terms of Rule
10 of the 2006 Rules. Having accepted the appointment, it was not open to them
to assert, as they did, that they should be appointed in the service of the
Government of Bihar. Moreover, no executive instruction could have superseded
the rules.
10 Learned counsel appearing on behalf of the respondents has placed
reliance on the orders of this Court dated 9 October 2015 and 11 November 2016
dismissing the Special Leave Petitions filed under Article 136 by the State in the
cases of Pooja Mishra and Sanjay Kumar. The above orders, by which this
Court dismissed the Special Leave Petitions against the decision of the Patna
High Court, will not aid the submissions of the respondents. This is for the simple
reason that subsequently, a two Judge Bench of this Court in Mukesh, in its
decision dated 3 April 2017 considered the provisions of the 2006 Rules as well
as the precedent on the subject. This Court extracted from the decision in
Vishwanath Pandey (on which reliance has also been placed by the impugned
judgment of the Division Bench of the High Court). In Mukesh’s case, this Court
held:
“By the impugned judgment, a Division Bench of the High
Court correctly held that the Appellants have no legal right to
seek appointment on compassionate grounds. Compassionate
appointments are not a source of recruitment and they are
made to provide succour to the family of an employee who
dies in harness. In the State of Bihar compassionate
appointments are governed by instructions issued by the
Government. Some of the Appellants were recommended for
appointment to Class III posts on a regular basis by the District
Compassionate Committee. However, they were appointed as
Prakhand Teachers/Panchayat Shikshaks/ Nagar Shikshaks,
etc. on a fixed pay. The Appellants could not have been
appointed on a fixed pay and they are entitled for appointment
to either on Class III or Class IV posts on regular basis or
payment of regular pay scale in the posts of as Prakhand
Teachers/Panchayat Shikshaks/Nagar Shikshaks, etc. in which
they are working at present. Some of the Appellants who were
recommended for appointment to Class III posts but were
appointed as Prakhand Teachers/Panchayat Shikshaks/Nagar
Shikshaks, etc. on fixed pay are similarly situated to
Vishwanath Pandey and they are entitled to be appointed on a
regular pay scale.”
In regard to those of the appellants who were appointed after 1 July 2006 (the
date of enforcement of the 2006 Rules), this Court observed:
“The other Appellants who were appointed after 01.07.2006
are not entitled to the relief granted to those who were
recommended for appointment to Class III or Class IV posts
prior to that date. A Full Bench of the Patna High Court in
State of Bihar and Others v. Rajeev Ran Vijay Kumar,
reported in (2010) 3 PLJR 294 (FB), held that the dependents
of deceased Government employees do not have a legal right
to be appointed in Government posts. Their appointments on
compassionate grounds shall be in accordance with Bihar
Panchayat Primary Teacher (Employment and Service
Conditions) Rules, 2006 (hereinafter referred to as the
‘Rules’) which came into force w.e.f. 01.07.2006. Rule 10 of
the said Rules provides for employment on compassionate
grounds to the dependents of teaching/ non-teaching
employees against available vacancies of Panchayat
Teachers/Block Teachers/Prakhand Teachers, etc. Such
appointments can be made only on a fixed pay by the
committee constituted under the Rules. The Appellants who
have not been recommended for appointment to Class III
or Class IV posts prior to 01.07.2006 are not covered by
Vishwanath Pandey’s case (supra). On the other hand, they
are squarely covered by the judgment of Full Bench of the
Patna High Court. They are not similarly situated to those
who were recommended for appointment to Class III posts
prior to 01.07.2006. The Appellants, who were appointed
after 01.07.2006, the date on which the Rules came into
force, are not entitled to claim appointment on regular
pay scales. It is relevant to note that the judgment of the Full
Bench of the High Court of Patna was challenged before this
Court. The said SLP was withdrawn with liberty granted to the
petitioners therein to approach the Government for suitable
relief.”
(Emphasis supplied)
11 Admittedly, in the present case as well, the respondents have been
appointed after 1 July 2006. Their case would hence be governed by the 2006
Rules. The above observations contained in the decision of the Division Bench in
Mukesh will apply to the respondents in the present case. The High Court was
manifestly in error in directing the Government of Bihar to appoint the
respondents in its regular service despite the fact that their appointments were
made after the 2006 Rules were brought into force. The respondents duly
accepted their appointments as Nagar Shikshaks. However, we grant liberty to
the respondents to approach the State Government for suitable relief in terms of
the orders passed in Special Leave Petition (C) No 29655 of 20107 and in the
same terms as ordered by this Court in its judgment dated 3 April 2017 in
Mukesh.
7 Rajiv Ranvijay Kumar v State of Bihar
12 The civil appeal is allowed. The judgment and order of the High Court
dated 30 March 2015 is set aside. There shall be no order as to costs.
13 Application for impleadment is disposed of. Pending application(s), if any,
are also disposed of.
[Dr Dhananjaya Y Chandrachud]
[Indira Banerjee]
New Delhi; July 18, 2019