Patna High Court - Orders
The State Of Bihar & Ors vs Rajeev Ran Vijay Kumar on 11 May, 2010
Bench: Mihir Kumar Jha, Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA No.321 of 2010
1. THE STATE OF BIHAR,
2. THE DISTRICT OFFICER - CUM - CHAIRMAN,
COMPASSIONATE COMMITTEE BHOJPUR, DISTT.-
ESTABLISHMENT BRANCH, ARA,
3. THE COMMISSIONER - CUM - SECRETARY, PRIMARY
EDUCATION, BIHAR, PATNA,
4. THE DIRECTOR, PRIMARY EDUCATION, BIHAR, PATNA,
5. THE REGIONAL DEPUTY DIRECTOR, EDUCATION, PATNA,
6. THE DISTRICT SUPERINTENDENT OF EDUCATION
BHOJPUR, ARA AT ARA .......... RESPONDENTS-APELLANTS.
Versus
RAJEEV RAN VIJAY KUMAR, S/O LATE KAMLESHWAR
KUMAR SINGH, R/O VILL.- BHAIROTOLA, P.O.- KHANGAON,
P.S.- CHANDI, DISTT.- BHOJPUR, ARA .....
........................................ PETITIONER - RESPONDENT.
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For the Appellants:Mr. Lalit Kishore, AAG-III
Mr. Satyabir Bharti, AC to AAG-III.
For the respondent: Mr. Uma Shankar Singh No.2, Advocate.
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PRESENT- THE HON'BLE THE CHIEF JUSTICE
THE HON'BLE MR JUSTICE MIHIR KUMAR JHA
THE HON'BLE MR JUSTICE JYOTI SARAN
ORDER
(11.05.2010)
As per Dipak Misra, C.J.-
The present appeal was preferred under Clause
X of the Letters Patent assailing the defensibility of the
order dated 30.04.2009 passed by the learned single Judge
in CWJC No. 10795 of 2006.
2. When the matter was heard by the Division
2
Bench, the Bench came across a decision rendered in
Brajesh Kumar V. The State of Bihar & Ors., 2010 (1)
PLJR 339 wherein a reference was made to the Bihar
Panchayat Primary Teacher (Appointment and Service
Conditions) Rules, 2006 (hereinafter referred to as `the
2006 Rules‟), resolution no. 12754 dated 12.07.1997,
letter no. 6905 dated 17.10.2008 and notification dated
22.06.2009 issued by the Department of Personnel &
Administrative Reforms, Government of Bihar pertaining
to compassionate appointment, and further, the Division
Bench decision rendered in Dilip Kumar Bhattacharya
v. The State of Bihar & Ors., 2004 (4) PLJR 889 and,
eventually, it was held that the legal heir of deceased
teacher, who was appointed much prior to coming into
force of the 2006 Rules, is entitled to be appointed on a
government post and not on the post of
Panchayat/Prakhand/Nagar Shikshak as the District
Compassionate Committee which recommends for
compassionate appointment cannot recommend for such
posts.
3. The Division Bench hearing the matter, after
3
taking note of the basic nature of compassionate
appointment, various notifications in the field and the
circular dated 26.02.2009, thought it appropriate that the
matter should be heard and disposed of by a larger bench
to put the controversy to rest from all spectrums. Thus, the
matter has been placed before us.
4. Presently, to the facts which are requisite to be
exposited for the purpose of adjudication of the appeal.
The father of the respondent-writ petitioner (hereinafter
referred to as `the respondent), a teacher in Upgraded
Middle School, Lodipur, Anchal-Koilwar, District-
Bhojpur, died in harness on 23.03.2005. The respondent,
who fulfilled the criteria to be appointed on compassionate
basis, being covered under the scheme, submitted an
application before the District Superintendent of
Education, Bhojpur, who, in turn, forwarded the same to
the District Compassionate Committee (for short `the
Committee‟), Bhojpur. The committee on due deliberation
on 07.12.2005 recommended him for appointment in the
Education Department. Despite the said recommendation,
no appointment was made, and, therefore, the writ
4
petitioner approached this Court for issue of a writ of
mandamus commanding the respondents therein to appoint
him without any delay.
5. A counter affidavit was filed by the District
Superintendent of Education, Bhojpur, Ara, the respondent
no. 6 in the writ petition, stating, inter alia, that the
petitioner had already been appointed on the post of
Prakhand Teacher and joined on the post. It was put forth
in the return that after receipt of the resolution of the
Committee, the matter was processed in the light of the
departmental Notification No. 974 dated 01.07.2006 and,
eventually, a communication was made by the District
Superintendent of Education, Bhojpur, Ara to the writ
petitioner on 28.09.2006 vide Annexure-A requiring his
consent to be appointed as Prakhand Teacher. As there
was initially no response, a reminder was sent on
03.11.2006 vide Annexure-B and, thereafter, the
respondent-writ petitioner by communication dated
12.03.2007 requested the authorities to appoint him on the
post of Prakhand Teacher in Koilwar Block. On the basis
of the said letter, he was appointed on the post of
5
Prakhand Teacher vide Memo No. 15 dated 04.07.2007
issued by the Block Development Officer, Koilwar and
posted in the Middle School, Khangaon, Koilwar where he
had already joined on 05.07.2007.
6. A supplementary affidavit was filed on behalf
of the respondent-writ petitioner by way of rejoinder
contending, inter alia, that the authorities have not acted in
accordance with the recommendation made by the
Committee inasmuch as they had offered the post of
Prakhand Teacher. A reference has been made to letter
no. 3/Anu/17/2005 Ka 6905 dated 17th October, 2008
issued by the Deputy Secretary, Personnel &
Administrative Reforms Department, Government of
Bihar that the employment as Panchayat Shikshak or
Prakhand Shikshak was not a post under the Government
and, therefore, no appointment could be given on
compassionate ground. It has been asserted in the affidavit
that this Court has already decided the issue in CWJC No.
13944/2005 (Md. Sadare Alam Vrs. The State of Bihar &
Ors.) with CWJC No. 4179/2007 (Anil Kumar Jha Vrs.
The State of Bihar & Ors.), disposed of on 04.12.2008 that
6
the posts of Panchayat Shikshak / Prakhand Shikshak are
not posts under the State Government and no
recommendation can be made on such posts. It was also
pleaded therein that the respondent-writ petitioner was
forced to accept the appointment as Prakhand Teacher. It
was put forth that he was entitled to be appointed on a
Class III post in the Government Department.
7. The learned single Judge, upon perusal of the
pleadings and the circular no. 6905 dated 17.10.2008, has
held that in view of the directions issued in the aforesaid
circular, it is evident that the respondent-writ petitioner
had not been given appointment on compassionate ground
in the Government as recommended by the Committee and
as per the requirement of the Government circulars and,
accordingly, directed the respondents therein to appoint
the petitioner on an appropriate post in the Government as
per the recommendation of the Committee within a period
of two months.
8. We have heard Mr. Lalit Kishore, learned
Additional Advocate General-III for the appellants, and
Mr. Uma Shankar Singh No. 2, learned counsel for the
7
respondent-writ petitioner.
9. Assailing the legal substantiality of the order
passed by the learned single Judge, it is submitted by Mr.
Lalit Kishore, learned Additional Advocate General-III,
that once the respondent-writ petitioner had accepted the
appointment on the post of Prakhand Teacher, he cannot
take a somersault and advance a stand that he was forced
to accept the appointment and join the same post. It is
urged by him that the learned single Judge has erroneously
placed reliance on the circular dated 17.10.2008 although
the respondent-writ petitioner was extended the benefit of
appointment on 04.07.2007, i.e., much prior to the date of
coming into force of the aforesaid circular. The learned
Additional Advocate General has canvassed that the
appointment of the respondent-writ petitioner as Prakhand
Shikshak is in accord with the Bihar Panchayat Primary
Teacher (Appointment and Service Conditions) Rules,
2006 (hereinafter referred to as `the 2006 Rules‟) and,
hence, no fault can be found with the same. It is his
further submission that the circular dated 17.10.2008 has
already been withdrawn vide letter no. 2955 dated
8
22.06.2009 of the Personnel & Administrative Reforms
Department wherein it has been stipulated that the
dependants of the teachers / non-teaching staff can be
appointed on compassionate ground on the basis of the
prescribed qualifications as Panchayat / Prakhand Teacher
against the available vacancies and the appointment on
compassionate ground can be made by the Committee
regard being had to the related conditions prescribed by
the Personnel & Administrative Reforms Department. It
has been further postulated in the latter letter-circular that
the appointment of the dependants of the teachers / non-
teaching staff on compassionate ground shall not be
considered by the Committee and, hence, no application
for such appointment shall be sent by the Officers of the
Personnel & Administrative Reforms Department to the
Committee. However, such application shall be filed to the
concerned appointment unit which shall produce the same
before the Committee constituted under the 2006 Rules
and if the applicant fulfills all the prescribed conditions
and the vacancy exists, the applicant shall be appointed
within thirty days. It is proponed by the learned counsel
9
for the State that neither the Rules nor the policy confer
any right to be appointed on a Class III post in a
Government Department and the interpretation placed by
the learned single Judge on a subsequent circular which
has a different contour is wholly incorrect as a conclusion
has been arrived at by way of inherence as if the applicant
has a hereditary right to the post. It is contended by him
that in Brajesh Kumar (supra), the learned single Judge
has misconstrued the purpose and purport of the circular
issued under Memo No. 3/R 1-304/73 Ka 12754 dated
12.07.1977 as if a right is inherent in the legal heir of the
deceased employee to be appointed to the post and,
therefore, the said decision deserves to be overruled.
10. Mr. Uma Shankar Singh No. 2, learned counsel
for the respondent, supported the order passed by the
learned single Judge contending, inter alia, that when there
is clarification by circular dated 17.10.2008 that Panchayat
Shikshak and Prakhand Shikshak are not posts under the
State Government, the respondent could not have been
appointed on the said post. It is urged by him that any
appointment, even compassionate in nature, must be
10
commensurate with the post held by the person, who died
in harness, and the only consideration that is required to be
seen is that the appointee possesses the requisite
qualifications. The decision in Brajesh Kumar (supra)
has rightly interpreted the circular dated 12.07.1977 and,
hence, no fault can be found with it.
11. Before adverting to the submissions raised at
the Bar, in the backdrop of the present factual matrix, it is
necessary to appreciate the basic concept of compassionate
appointment.
12. In Haryana State Electricity Board and
Anr. Vs. Hakim Singh, (1997) 8 SCC 85, the Apex Court
has expressed the view that grant of compassionate
appointment is to give succour to the family which has
been suddenly plunged into penury due to the untimely
death of the sole breadwinner. Their Lordships have
opined that the same cannot be treated or regarded as an
alternative mode of appointment.
13. In Director of Education (Secondary) and
Another Vs. Pushpendra Kumar and Others, (1998) 5
SCC 192, it has been held thus:
"8. The object underlying a provision for grant
11
of compassionate employment is to enable the
family of the deceased employee to tide over
the sudden crisis resulting due to death of the
bread earner which has left the family in
penury and without any means of livelihood.
Out of pure humanitarian consideration and
having regard to the fact that unless some
source of livelihood is provided, the family
would not be able to make both ends meet, a
provision is made for giving gainful
appointment to one of the dependents of the
deceased who may be eligible for such
appointment. Such a provision makes a
departure from the general provisions
providing for appointment on the post by
following a particular procedure. Since such a
provision enables appointment being made
without following the said procedure, it is in
the nature of an exception to the general
provisions. An exception cannot subsume the
main provision to which it is an exception and
thereby nullify the main provision by taking
away completely the right conferred by the
main provision. Care has, therefore, to be
taken that a provision for grant of
compassionate employment, which is in the
nature of an exception to the general
provisions, does not unduly interfere with the
right of other persons who are eligible for
12
appointment to seek employment against the
post which would have been available to them,
but for the provision enabling appointment
being made on compassionate grounds of the
dependent of a deceased employee. In Umesh
Kumar Nagpal v. State of Haryana, (1994)
4 SCC 138 : (1994 AIR SCW 2305) this Court
has taken note of the object underlying the
rules providing for appointment on
compassionate grounds and has held that the
Government or the public authority concerned
has to examine the financial condition of the
family of the deceased and it is only if it is
satisfied, that but for the provision of
employment, the family will not be able to
meet the crisis that a job is to be offered to the
eligible member of the family. In that case the
Court was considering the question whether
appointment on compassionate grounds could
be made against posts higher than posts in
Classes III and IV. It was held that such
appointment could only be made against the
lowest posts in non-manual and manual
categories. It was observed:-
"The provision of employment in such
lowest posts by making an exception to
the rule is justifiable and valid since it is
not discriminatory. The favourable
treatment given to such dependent of the
13
deceased employee in such posts has a
rational nexus with the object sought to
be achieved, viz., relief against
destitution. No other posts are expected
or required to be given by the public
authorities for the purpose. It must be
remembered in this connection that as
against the destitute family of the
deceased there are millions of other
families which are equally, if not more
destitute. The exception the rule made
in favour of the family of the deceased
employee is in consideration of the
services rendered by him and the
legitimate expectations, and the change
in status and affairs, of the family
engendered by the erstwhile
employment which are suddenly
upturned."
14. In Commissioner of Public Instructions and
others Vs. K.R. Vishwanath, (2005) 7 SCC 206, the
Apex Court, after referring to the decisions rendered in
State of Haryana and Others Vs. Rani Devi and
Another, (1996) 5 SCC 308; Life Insurance Company
of India Vs. Asha Ramchandra Ambekar (Mrs) and
Another, (1994) 2 SCC 718; and, Umesh Kumar Nagpal
14
v. State of Haryana and others, (1994) 4 SCC 138, has
opined thus:
"9. As was observed in State of Haryana
v. Rani Devi ((1996) 5 SCC 308 : 1996
SCC (L&S) 1162 : AIR 1996 SC 2445), it
need not be pointed out that the claim of
person concerned for appointment on
compassionate ground is based on the
premises that he was dependant on the
deceased employee. Strictly this claim
cannot be upheld on the touchstone of
Articles 14 or 16 of the Constitution.
However, such claim is considered as
reasonable and permissible on the basis of
sudden crisis occurring in the family of such
employee who has served the State and dies
while in service. That is why it is necessary
for the authorities to frame rules, regulations
or to issue such administrative orders which
can stand the test of Articles 14 and 16.
Appointment on compassionate ground
cannot be claimed as a matter of right. Die-
in-harness scheme cannot be made
applicable to all types of posts irrespective
of the nature of service rendered by the
deceased employee. In Rani Devi case
((1996) 5 SCC 308 : 1996 SCC (L&S) 1162
: AIR 1996 Supreme Court 2445) it was held
15
that scheme regarding appointment of
compassionate ground if extended to all
types of casual or ad hoc employees
including those who worked as apprentices
cannot be justified on constitutional
grounds. In LIC of India v. Asha
Ramchandra Ambekar (Mrs) and
Another, ((1994) 2 SCC 718 : 1994 SCC
(L&S) 737 : (1994) 27 ATC 174) it was
pointed out that High Courts and
Administrative Tribunals cannot confer
benediction impelled by sympathetic
considerations to make appointments on
compassionate grounds when the regulations
framed in respect thereof do not cover and
contemplates such appointments. It was
noted in Umesh Kumar Nagpal v. State of
Haryana, (1994) 4 SCC 138 : 1994 SCC
(L&S 930 : (1994) 27 ATC 537) that as a
rule in public service appointment should be
made strictly on the basis of open invitation
of applications and merit. The appointment
on compassionate ground is not another
source of recruitment but merely an
exception to the aforesaid requirement
taking into consideration the fact of the
death of employee while in service leaving
his family without any means of livelihood.
In such cases the object is to enable the
16
family to get over sudden financial crisis.
But such appointments on compassionate
ground have to be made in accordance with
the rules, regulations or administrative
instructions taking into consideration the
financial condition of the family of the
deceased.
15. In State of J&K and Others Vs. Sajad
Ahmed Mir, (2006) 5 SCC 766, their Lordships, after
referring to earlier decisions rendered in Rani Devi
(supra), Asha Ramchandra Ambekar (supra) and Umesh
Kumar Nagpal (supra), have expressed thus:
"11. We may also observe that when the
Division Bench of the High Court was
considering the case of the applicant holding
that he had sought „compassion‟, the Bench
ought to have considered the larger issue as
well and it is that such an appointment is an
exception to the general rule. Normally, an
employment in Government or other public
sectors should be open to all eligible
candidates who can come forward to apply and
compete with each other. It is in consonance
with Article 14 of the Constitution. On the
basis of competitive merits, an appointment
should be made to public office. This general
rule should not be departed except where
compelling circumstances demand, such as,
death of sole bread earner and likelihood of
17
the family suffering because of the set back.
Once it is proved that in spite of death of bread
earner, the family survived and substantial
period is over, there is no necessity to say
„goodbye‟ to normal rule of appointment and
to show favour to one at the cost of interests of
several others ignoring the mandate of Article
14 of the Constitution.
12. In State of Haryana v. Rani Devi ((1996)
5 SCC 308 : AIR 1996 SC 2445), it was held
that the claim of applicant for appointment on
compassionate ground is based on the premise
that he was dependant on the deceased-
employee. Strictly this claim cannot be upheld
on the touchstone of Article 14 or 16 of the
Constitution. However, such claim is
considered reasonable as also allowable on the
basis of sudden crisis occurring in the family
of the employee who had served the State and
died while in service. That is why it is
necessary for the authorities to frame rules,
regulations or to issue such administrative
instructions which can stand the test of
Articles 14 and 16. Appointment on
compassionate ground cannot be claimed as a
matter of right."
16. Yet, again in I.G. (Karnik) and Others Vs.
Prahalad Mani Tripathi, (2007) 6 SCC 162 = (2007) 2
18
SCC (L&S) 417, emphasis has been laid on the mode of
recruitment and the constitutional scheme for the purpose
of appointment. In the said case, the Apex Court has
opined that public employment is a national wealth and
only in certain circumstances, exception has been carved
out. When an appointment is made on compassionate
ground, it should be kept confined only to the purpose it
seeks to achieve, the idea being not to provide for endless
compassion.
17. The Full Bench of Madhya Pradesh High Court in
Bank of Maharashtra and Another v. Manoj Kumar
Deharia and Another, (Writ Appeal No. 1007 of 2007),
decided on 27.10.2009, has held thus:
"10. From the enunciation of law laid down
therein, it is clear that employment to
government and other public services should
be open to all eligible candidates and by open
competition on merit. This is in consonance
with the mandate of Articles 14 and 16 of the
Constitution. This general rule can be departed
from only when compelling circumstances
demand and one such circumstance is the
death of the sole breadwinner of a family.
However, it is held by the Supreme Court that
19
appointment on compassionate ground is
governed by Rules and Regulations or Scheme
and taking into consideration instructions
framed in this regard and the same should
confirm to the requirement of Articles 14 and
16 of the Constitution. That apart, the
principles clearly indicates that grant of
compassionate appointment is not a right,
vested in nature, available to a person. It is a
benefit granted dehors the normal mode of
recruitment and, therefore, it is to be granted
strictly in accordance to the Scheme or Policy
formulated in this regard."
18. The Full Bench has further proceeded to state
as follows:
"31. It is, therefore, clear that compassionate
appointment is not a vested right nor is it a
hereditary right. Its grant is based on the
Policies and Scheme which are framed by
carving out an exception to the General Rule
governing public appointment. Once it is held
that it is an exception to the General Rule and
is granted in accordance with the Scheme or
Rules formulated, then considerations to be
made for grant of the appointment would be
governed by the provision of the Rules or the
Scheme and in that view of the matter when
the Rules and the Guidelines play a dominant
20
role, considerations have to be made in
accordance with the Rules and Scheme which
are applicable at the time of grant........"
19. We have referred to the aforesaid authorities to
highlight that a compassionate appointment cannot be
claimed as a matter of right and no one should harbour or
nurture an idea that he has a vested right or he has a
hereditary right. The grant is founded on the rules and, in
the absence of the rules, on the policies in vogue.
20. In Brajesh Kumar (supra), the learned single
Judge in paragraph 3 has held thus:
"3. The Department of Personnel and
Administrative Reforms, Government of Bihar,
Patna, vide resolution no. 12754 dated
12.7.1977had made provisions for compassionate appointment of dependents/ legal heirs of those Government employees, who died in harness. The recommendation was to be made on any Class III and Class IV posts as per the eligibility. This provision was made to give financial support to the family of Government employee dying in harness, as on account of sudden death of bread earner, the family was forced to face starvation and serious financial hardship. Time to time some changes were made in the resolution relating to period 21 of limitation for filing an application and the list of dependents but so far the constitution of the Compassionate Committee and the effect of recommendation made by the Compassionate Committee is concerned, it remained unchanged. In case of death of Government employee in harness, the recommendation of Compassionate Committee was to be followed by the concerned Department and its authorities where the deceased employee used to work. The authorities in the Department had to issue appointment letter as per the recommendation of the District Compassionate Appointment Committee. The District Compassionate Committee used to consider the application of compassionate appointment of legal heirs of such Government employees, who died in harness. The meeting of the Compassionate Committees are held under the Chairmanship of the District Magistrate and the departmental heads of each Department as members. Recommendations made by the Committees are final and it cannot be altered by any individual officer, on its own decision. Any review, change, alteration is to be made by the Committee itself."
21. Thereafter, the learned single Judge has referred 22 to the 2006 Rules and the notification dated 22.06.2009 and has held as follows:
"10. ..... The notification dated 22.6.2009 issued by the Department of Personnel and Administrative Reforms, Government of Bihar dated 22.6.2009 will have application, in case of such `teachers‟, who were either absorbed or appointed, on or after 1.7.2006. Such appointed teachers will come within the definition of `teacher‟ under Rule 2(iv) of 2006 Rules, as they have been appointed following the procedure for appointment under Rule 4. In case of such teachers only Rule 10 of 2006 Rules relating to compassionate appointment will have application and their legal heirs shall be appointed on Panchayat/Prakhand teachers‟ Posts in the fixed salary, since, the teachers appointed under 2006 Rules belong to a different class."
22. We have referred to the circular no. 12754 dated 12.7.1977. We have carefully scanned the language employed in the said circular. To have a complete picture, it is apt to reproduce the English translation of the circular, the same being in Hindi.
23"Memo No.3/R1-304/73 Ka 12754 dated 12-7-1977. To, All Departments of the Government/ All the Heads of the Departments. Subject - Priority in appointment to the post of Class-3 and Class-4 under State Government to the dependant family members of such government servants, who died casually during service period.
The undersigned is directed to say that on account of casual death of government servant during service period, the dependant of his family member has to face severe financial crisis in many cases. The question of providing assistance in such a time of distress, to the family of concerned government servant, was under
consideration before the government for the last some time. In this regard, the State Government has decided to give priority in appointment to one of the family members of such government servant where there is no need to consult Public Service Commission, to the post of Class-3 and Class-4. Following conditions and facts shall be essential for the said priority.
1. The financial condition of the family of deceased government servant is not sound, i.e., any member of the said family does not work for earning any type of livelihood and, if he is working, his income is not sufficient to maintain 24 the entire family and considering his property and indebtedness, it is proper to give such benefit.
2. The family member of government servant of the aforesaid category possesses qualification prescribed for the said post and his age is within prescribed age-limit. Relaxation in age-limit may be given under Rule-54 of Service Code in special circumstance.
3. As per government order no. 8167 Ni.
dated 21.6.66 issued by Appointment Department, it is essential for the candidate to get his name enrolled in Employment Exchange for getting appointment under the State Government but the family member of such government employee is exempted from the said order. Simultaneously, the Appointing Officer shall himself decide whether the concerned person is eligible for appointment to the said post or not.
4. Generally this benefit shall be available for two years after the date of death of government employee.
5. The appointment shall be absolutely on temporary and ad hoc basis and it shall not be considered for seniority in cadre. Their appointment shall be regularized only after fulfilling prescribed procedure.
6. The word `family‟ as mentioned in this order commonly means - wife, son and unmarried daughters.
257. At the time of submitting application for ad hoc appointment, the family member of the deceased government employee shall also have to furnish necessarily the enclosed informations.
8. The appointing officer after examining the facts of application submitted for appointment on compassionate ground independently shall obtain the order of the concerned department and the department shall take opinion of Personnel Department on every matter before giving order.
The government has also decided that all the concerned departments shall give direction to this effect to all the Public Enterprises, autonomous bodies and local institutions and municipalities, etc., falling within their jurisdiction."
23. On a reading of the said circular, it is vivid that the legal heirs/dependants/representatives are to be given preference in respect of Class III and Class IV posts under the said circular where consultation with the Public Service Commission is not necessary. Conditions have been laid down for giving such preference. On a scrutiny of the same, we are not in a position to hold that any indefeasible right has been conferred on the dependants or legal heirs to claim the said posts as a matter of right. As 26 has been laid down in various pronouncements / authorities, this kind of appointment is an exception and dependent on the rule or the policy of the Government.
The circular, as we understand, confers a right to be considered in respect of these posts. If it is not possible to give the benefit of such a post, a person cannot seek a writ of mandamus.
24. In Brajesh Kumar (supra), the learned single Judge has not appreciated the circular in proper perspective and has opined as if the dependant or the legal heir has a right in law. The State Government by circular dated 17.10.2008 has opined that Panchayat Shikshak and Prakhand Shikshak are not posts under the State Government and, therefore, no appointment can be given on compassionate ground in respect of the said posts. The said circular has been withdrawn by circular no. 2955 dated 22.06.2009 wherein it has been postulated that the dependants of teaching / non-teaching staff can be appointed on compassionate ground on the basis of the prescribed qualification as Panchayat Teacher against the available vacancies. Rule 2(i) of the 2006 Rules defines 27 `Primary School‟. It reads as under:
"2(i) `Primary School‟ means those Government and Nationalised Schools where education up to Class V is at present imparted."
25. Rule 2(ii - iv) of the 2006 Rules, which is relevant for the present purpose, is reproduced below:
"2.(ii) `Middle School‟ means those Government / Nationalised Schools where education up to Class VII or Class VIII is at present imparted.
(iii) `Elementary School‟ means those Government / Nationalised Primary and Middle Schools.
(iv) `Panchayat Elementary Teacher‟ means Prakhand Shikshak and Panchayat Shikshak employed as per Clause 3 of the Rules in the Elementary Schools of the State."
26. From Rule 4 onwards, there is a procedure for appointment of teachers. Rule 10 deals with appointment on compassionate basis. We are really concerned with Rule 2. On a perusal of the scheme, especially Rule 2(ii), it is clear as crystal that the schools have been taken over by the government. The responsibility of management and control of the schools has been shifted to the Panchayat 28 Raj Institution. The State Government by the circular dated 22.06.2009 has laid down the procedure for appointment of the dependants of the teaching and non-
teaching employees on compassionate basis to the post of teacher. The said circular, which is in Hindi, on being translated into English, reads as follows:
"Letter No. 3/Anu-17/2005 Ka 2955/ Government of Bihar Personnel & Administrative Reforms Department.
From, Saryug Prasad, Deputy Secretary to the Government, To, All Departments, All the Heads of the Department, All the Divisional Commissioners, All the District Officer-cum-Chairman, District Compassionate Committee.
Patna (15), 22 June, 2009.
Subject : As regards making appointment of dependants of teaching and non-teaching employees to the post of teacher on compassionate ground.
Sir, I am directed to say that keeping in view the direction contained in letter no. 6905 dated 17.10.08 of Personnel and Administrative Reforms Department and letter no. 2209 dated 28.12.06 of 29 Human Resources Development Department, a few District Officers have sought guidelines with reference to appointment of dependants of teaching and non-teaching employees on compassionate ground.
2. After deliberation with the Human Resources Development Department on this subject, it became clear that a provision in Rule-10 of Bihar Panchayat Primary Teacher (Employment and Service Conditions) Rules, 2006 has been made as follows:
"10- Employment on the basis of compassionate ground - The dependants of teaching / non-teaching employees could be appointed on compassionate ground against the available vacancies of Panchayat Teachers / Block Teachers in conformity with the prescribed qualification, if they give their clear consent for it. Appointment could be made on the basis of compassionate ground by the aforesaid committees in the light of other conditions prescribed for appointment by the Personnel and Administrative Reforms Department of the Government, it shall be essential for untrained dependants to obtain training within a maximum period of 6 years after appointment". There is also a similar 30 provision contained in Bihar Nagar Primary Teachers (Employment and Service Conditions) Rules, 2006. The word used for `Committees‟ in the aforesaid provision means the committees constituted in the said rules."
3. In this way it is clear that dependants of teaching/non-teaching employees could be appointed against the posts of Panchayat Teacher / Block Teacher / Town Teacher, etc. on a fixed pay by the committees constituted in the aforesaid rules.
4. Therefore, the matters related to the dependants of teaching and non-teaching staff can not be considered by the District Compassionate Committees. Subsequently, the Officers of Human Resources Department shall not send the applications, etc. of the dependants of teaching and non-teaching employees to the District Compassionate Committee. Such applications shall be submitted in the concerned employment unit (exchange) and the concerned unit (exchange) shall place them before the committee constituted under the said rules. If the applicants are fulfilling all the qualifications / conditions required for such appointment and vacancies are available, then it would be necessary to appoint them within 30 (thirty) days. In case vacancies are not available for the time being, then the concerned officer of 31 the Human Resources Development Department shall have to ensure such appointment within 30 (thirty) days of the availability of vacancy.
5. Human Resources Development Department has accorded the consent in respect of aforesaid instructions.
6. The aforesaid letter no. 6905 dated 17.10.08 of the Personnel and Administrative Reforms Department is cancelled herewith.
7. You are requested to ensure that all the Officers working under you have been apprised of the aforesaid instructions.
Yours faithfully, Sd/- (Illegible) 22.06.09.
(Saryug Prasad) Deputy Secretary to the Governmnet."
27. We have referred to the above circular in extenso only to appreciate that a legal heir or dependant having no legal right to be appointed to a government post cannot claim it as a matter of right. The State Government has withdrawn the preference that existed in the circular dated 12.07.1977. It has made an alternative arrangement that the teachers serving in the erstwhile government schools, when die in harness, their legal heirs can be accommodated as Prakhand Teachers. The view expressed in Brajesh Kumar (supra) that they cannot be appointed 32 in the said schools is really not a matter to be adverted to by this court as it is the policy decision of the Government to appoint such teachers in those schools by carving out an exception. As has been stated in many a decision, a compassionate appointment by its very nature is an exception and the same has to be treated as an exception for all purposes. Possibly, the matter would have been different had the rule been in force conferring a particular privilege on the legal heir or dependant of the government teacher, who died in harness. That not being the position, the Government has the power / authority to change the policy from time to time and that having been done, no fault can be found with the appointment given to the appellant on the post of Prakhand Teacher in the Koilwar Block.
28. In view of our preceding analysis, we are unable to persuade ourselves to accept the view expressed in Brajesh Kumar (supra) and, accordingly, the same stands overruled. Any decision following the said judgment is deemed to be overruled.
29. In the result, the appeal is allowed and the 33 order passed by the learned single Judge is set aside.
However, in the facts and circumstances of the case there shall be no order as to costs.
(Dipak Misra,C.J.) (Mihir Kumar Jha,J.) (Jyoti Saran, J.) Patna High Court.
The 11th May,2010.
AFR.
Dilip