IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10616 of 2009 BRAJESH KUMAR . Versus THE STATE OF BIHAR & ORS . with CWJC No.11772 of 2009 RAJEEV RANJAN SUMAN & ORS . Versus THE STATE OF BIHAR & ORS . with CWJC No.11803 of 2009 SHIV NARAIN SINGH . Versus THE STATE OF BIHAR & ORS . with CWJC No.11868 of 2009 AMRENDRA KUMAR . Versus THE STATE OF BIHAR & ORS . with CWJC No.11910 of 2009 NIRMAL KUMAR . Versus THE STATE OF BIHAR & ORS . with CWJC No.11923 of 2009 MD.MUNAJIR ALAM . Versus THE STATE OF BIHAR & ORS . with CWJC No.11994 of 2009 MD.NAIYER ALAM . Versus THE STATE OF BIHAR & ORS . with CWJC No.12026 of 2009 RAM RATAN KUMAR &ORS . Versus THE STATE OF BIHAR & ORS . with CWJC No.12052 of 2009 SUBHASH KUMAR . Versus THE STATE OF BIHAR & ORS . with CWJC No.14562 of 2009 1. MANISH PANDEY S/O SHRI BATUKESHWAR PANDEY MOH- MARANPUR, P.S. CIVIL LINE, DISTT. GAYA Versus 2 1. THE STATE OF BIHAR THROUGH THE DIRECTOR SECONDARY, MIDDLE AND PRIMARY EDUCATION, GOVT. OF BIHAR, PATNA 2. THE DIVISIONAL COMMISSIONER MAGADH DIVISION, GAYA, DISTT. GAYA 3. THE DISTRICT COLLECTOR GAYA COLLECTORATE, GAYA, DISTT. GAYA 4. THE REGIONAL DEPUTY DIRECTOR DEPTT. OF EDUCATION, GAYA DIVISION, GAYA, DISTT. GAYA 5. THE DISTRICT EDUCATION OFFICER GAYA, DISTT. GAYA 6. THE DISTRICT SUPERINTENDENT OF EDUCATION GAYA, DISTT. GAYA 7. THE HEAD MASTER-CUM-DRAWING AND DISBURSING OFFICER MIDDLE SCHOOL, BITHO, NAGAR PRAKHAND, DISTT. GAYA with CWJC No.15248 of 2009 1. ARVIND KUMAR SINGH S/O LATE KAMLESHWAR SINGH AT P.O. & P.S.- PHENHARA, DISTT.- EAST CHAMPARAN, MOTIHARI 2. SANTOSH KUMAR PANDEY S/O LATE RAMCHANDRA PANDEY VILL.- BHATKARZA, P.O.- BHATWALIA, P.S.- SANGRAMPUR, DISTT.- EAST CHAMPARAN, MOTIHARI 3. RAJIV RANJAN KUMAR S/O LATE BISHWANATH SINGH VILL.- GOVINDWARA, P.O. + P.S.- PHENHARA, DISTT.- EAST CHAMPARAN, MOTIHARI 4. SURENDRA KUMAR TARUN S/O LATE SATYANARAIN RAI VILL.- MADHUBANI, P.O. + P.S.- PHENHARA, DISTT.- EAST CHAMPARAN, MOTIHARI 5. SUJEET KUMAR S/O LATE RABINDRA NARAIN SINGH VILLAGE + P.O.- BETUNA, P.S.- PATAHI, DISTT.- EAST CHAMPARAN, MOTIHARI Versus 1. THE STATE OF BIHAR 2. THE COMMISSIONER-CUM-SECRETARY PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE DEPUTY SECRETARY PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 4. THE DISTRICT ESTABLISHMENT COMPASSIONATE COMMITTEE EAST CHAMPARAN, MOTIHARI THROUGH ITS CHAIRMAN DISTRICT MAGISTRATE, EAST CHAMPARAN, MOTIHARI 5. THE DISTRICT SUPERINTENDENT OF EDUCATION EAST CHAMPARAN, MOTIHARI with CWJC No.15390 of 2009 1. SHRI KANT UPADHAYA S/O SRI AWADHESH UPADHAYA R/OVILL RATANPURA, P.S. NOORSARAI, DISTT- NALANDA Versus 1. THE STATE OF BIHAR 2. THE SECRETARY , DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS GOVERNMENT OF BIHAR, PATNA 3. THE PRINCIPAL SECRETARY, DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT GOVERNMENT OF BIHAR, PATNA 3 4. THE DEPUTY SECRETARY, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS GOVERNMENT OF BIHAR , PATNA 5. THE DISTRICT MAGISTRATE NALANDA 6. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION PATNA DIVISION , PATNA 7. THE DISTRICT EDUCATION OFFICER NALANDA 8. THE DISTRICT SUPERINTENDENT OF EDUCATION NALANDA with CWJC No.15460 of 2009 1. BIBHA KUMARI D/O SRI JANARDAN PANDEY R/O VILL.+POST- AUNGARI, P.S. AUNGARI, DISTT.- NALANDA Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, DEPTT. OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVT. OF BIHAR, PATNA 3. THE PRINCIPAL SECRETARY, DEPTT. OF HUMAN RESOURCES DEVELOPMENT, GOVT. OF BIHAR 4. THE DEPUTY SECRETARY, DEPTT. OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVT. OF BIHAR, PATNA 5. THE DISTRICT MAGISTRATE, NALANDA 6. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, PATNA DIVISION, PATNA 7. THE DISTRICT EDUCATION OFFICER, NALANDA 8. THE DISTRICT SUPERINTENDENT OF EDUCATION, NALANDA with CWJC No.15461 of 2009 1. AJIT KUMAR S/O SHRI UMA KANT SINGH R/O MOHALLA- KAGZI DEVI STHAN, P.S. TOWN, BIHARSHARIF, DISTT.- NALANDA Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, DEPTT. OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVT. OF BIHAR, PATNA 3. THE PRINCIPAL SECRETARY, DEPTT. OF HUMAN RESOURCES DEVELOPMENT, GOVT. OF BIHAR 4. THE DEPUTY SECRETARY, DEPTT. OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVT. OF BIHAR, PATNA 5. THE DISTRICT MAGISTRATE, NALANDA 6. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, PATNA DIVISION, PATNA 7. THE DISTRICT EDUCATION OFFICER, NALANDA 8. THE DISTRICT SUPERINTENDENT OF EDUCATION, NALANDA with CWJC No.15499 of 2009 1. PRABHAKAR SINHA S/O LATE ARBIND KUMAR SINHA R/O SARFRAJ NAGAR KUMHARA, P.S. GHOSWARI, DISTT.- NALANDA Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVT. OF BIHAR, PATNA 3. THE PRINCIPAL SECRETARY, DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT, GOVT. OF BIHAR 4 4. THE DEPUTY SECRETARY, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVT. OF BIHAR, PATNA 5. THE DISTRICT MAGISTRATE, NALANDA 6. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, PATNA DIVISION, PATNA 7. THE DISTRICT EDUCATION OFFICER, NALANDA 8. THE DISTRICT SUPERINTENDENT OF EDUCATION, NALANDA ----------- For the Petitioners:- Mr. Ganesh Singh, Advocate 8. 18.12.2009 Petitioners in these writ applications are the dependents and legal heirs of Assistant Teachers, who died in harness, while working in Primary and Middle Schools. Some of the Petitioners had applied for their compassionate appointment and the District Compassionate Appointment Committee had recommended for their appointment on Class III Government posts, in case of non-availability of Class III posts on any Government Class IV posts. In cases of some petitioners, their applications for compassionate appointment have been returned by the District Compassionate Appointment Committee, in view of the order issued by the Deputy Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna vide letter no. 2955 dated 22.6. 2009. Through this letter a direction has been issued by the Deputy Secretary, Department of Personnel and 5 Administrative Reforms that the District Compassionate Appointment Committee will not make any recommendation for compassionate appointment in case of legal heirs of teachers and non teaching employees in Primary and Middle Schools, for any Government Class III and Class IV posts. Their cases will be considered by the competent Committee for compassionate appointment on the posts of Panchayat and Prakhand Teachers in fixed salary. Petitioners have prayed for quashing of letter No. 2955 dated 22.6.2009 on the ground that it is arbitrary, unwarranted, unconstitutional and violative of Articles 14 and 16 of the Constitution of India. Further prayer of the petitioners is for a direction to the respondents to appoint them on compassionate ground on any Class III/Class IV Government posts as per their eligibility and recommendation of the District Compassionate Appointment Committee. Petitioners have also prayed for a direction to the District Compassionate Committee to recommend their cases for appointment on Government posts by recalling their 6 applications as the applications have been returned in the light of letter No. 2955 dated 22.6.2009. The Department of Personnel and Administrative Reforms, Government of Bihar, Patna, vide resolution no. 12754 dated 12.7.1977 had 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 mad in the resolution relating to period 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 7 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. In the State of Bihar, imparting School education at primary, middle and High School Levels is the primary responsibility of the State Government. In the past, the State Government established some Schools which were known as Government Schools and some privately managed or under the Management of the 8 Board, Municipalities were also taken over by the Government. Such schools were known as taken over schools and such Schools also became the Government Schools. Teaching and non-teaching staffs working in these schools were Government employees and entitled for all benefits as a Government Employee. In case of their death in harness, District Compassionate Appointment Committee used to recommend for the appointment of their legal heirs on Class III and Class IV posts. Petitioners‟ fathers/mothers were also working an Assistant Teachers in such schools, which was under the Management of the State Government. They were also entitled for all benefits for which a Government servant was entitled, till the date of their death they were Government servants and after their death, their legal heirs (petitioners) filed their applications for compassionate appointment before the departmental head i.e. District Superintendent of Education, who recommended their applications to the District Compassionate Appointment Committee for 9 taking decision. The District Compassionate Committee recommended for petitioners‟ appointment on Class III posts considering their eligibility and qualification. In some of the cases the recommendations were made much earlier to 2006. In some cases recommendations were made later on, but appointment letters were issued after 1.7.2006 for the posts of Panchayat/Prakhand teachers on a fixed salary. This is the grievance of the petitioners,for redressal, of which all these writ applications have been filed. The framer of the Constitution had casted duty upon the State under Article 45 of the Constitution to make endeavor for providing free and compulsory education to all children until they complete the age of 14 years. In the constitution itself, under Article 45, it was anticipated that within a period of ten years the State will be able to fulfill this responsibility. This was not done within the period anticipated. However, the Government of India in its National Education Policy of 1986 envisaged said that the promise of Article 45 is needed to be redeemed before the end of this century. 10 Finally right to free and compulsory education was made fundamental right for children up to the age of 14 years. To fulfill this object, the Government of India, adopted a policy of Sarva Shiksha Abhiyan, which was duly adopted by the State Government. The State of Bihar to fulfill the object of Sarva Shiksha Abhiyan and to educate children in between the age of 6 to 14 years, decided to shift the responsibility of imparting education in Primary and Middle Schools level, upon Gram Panchayats. In order to reach this goal the State Government had to establish new Schools in rural areas, as taken over some Schools in rural areas, as well as to appoint Teachers in these Schools. The Department of Human Resources Development, Government of Bihar, Patna, issued notification No.7/E-3-02/06/-974 dated 1.7.2006 known as “Bihar Panchayat Primary Teachers (Appointment and Service Conditions) Rules, 2006”( hereinafter referred to as the Rules), relating to appointment and service conditions of teachers in two primary/Middle Schools at Panchayat/Prakhand level. The responsibility of the Management and Control of 11 such schools were shifted on the Panchayati Raj Institutions. The Panchayat/Prakhand Teachers were brought under the Management and Control of Gram Panchayat with an object of spreading education among children in between the age of 6 to 14 years in rural areas. After coming into force of 2006 Rules, all appointments in Primary and Middle Schools in the rural areas were to be made under these rules. Rule 2 of 2006 Rules is definition section under which different words used under the Rules have been defined:- Rule 2(1)- defines “primary schools”, which includes all such Government or taken over Schools by the Government, where there is provision for teaching up to class V. Rule 2(ii)- defines “Madhya Vidlaya”, which includes all such Government or taken over schools where presently students up to Class VII are being taught. Rule 2(iii)- defines “primary schools”, which includes all government or taken over Primary and 12 Middle Schools. Rule 2(iv)- provides that “Panchayat Primary Teachers”, are such teachers, who are appointed as Prakhand/Panchayat teachers under Rule 3. Rule 3 under its definition includes two categories of teachers: (1) Prakhand teachers (teachers appointed at Prakhand level which also includes physical teacher) (ii) Panchayat Teacher ( appointed at Panchayat level). Rule 4- deals with the appointment of “Panchayat- Primary Teachers”. Rule 8 (ka) deals with the eligibility and qualification for appointment as Panchayat/Prakhand teachers. Rule 9 provides the procedure for appointment. Rule 10 deals with the compassionate appointment of legal heirs of teaching and non-teaching employees working in Schools at Panchayat/Prakhand level, on the basis of their qualifications, on the available vacant posts of Panchayat/Prakhand teachers, in case 13 they give consent for such appointments. The compassionate appointment is to be made in terms of the resolution of the Personnel and Human Resources Development Department relating to compassionate appointment. Mr.Ganesh Singh, counsel for the petitioners has contended that admittedly fathers/mothers of the petitioners were appointed on the posts of Assistant Teachers and working as regular Government employees till the date of their death. They used to receive all benefits of a permanent Government employee. In case the Assistant Teachers died in harness, their family members used to receive family pension and legal heirs were being appointed on compassionate grounds on Class III and Class IV posts as per eligibility of the candidates. After the death of petitioners‟ fathers/mothers they applied for their compassionate appointment and in some of case recommendations were also made for appointment on Class III posts, but appointment letters were issued in favour of the petitioners for the post of Prakhand/Panchayat Teachers 14 in a fixed salary. In case of some petitioners, their applications, which were duly recommended by the District Superintendent of Education to the Compassionate Appointment Committee, later on were returned, in the light of the notification contained in letter No. 2955 dated 22.6.2009 issued by the Department of Personnel and Administrative Reforms, Government of Bihar. Counsel for the petitioners has assailed the notification dated 22.6.2009 as illegal, arbitrary and also violative of Articles 14 and 16 of the Constitution of India. It has been submitted that the Government through this notification has made an illegal and arbitrary classification among the same category of Government employees. The legal heirs of Assistant teachers‟, who died in harness, were being appointed on compassionate ground till the date letter no. 2955 dated 22.6.2009 was not issued. The only reason for classification is that in case of petitioners‟, appointment letter were not issued prior to 1.7.2006, i.e. the date with effect from which 2006 Rule became effective and operating. All Assistant Teachers including the parents 15 of the petitioners were treated as Government servant and entitled for all such benefits, for which Government servants are entitled. The question which has been raised by the petitioners is whether the respondent can make distinction and discrimination in between the similar category of employees in the matters of compassionate appointment, on the ground of subsequent Government Policy to appoint teachers in Primary and Middle schools in rural areas under 2006 Rules, which have now come under the control and management of Gram Panchayat. The law is well settled that classification can be made when employees fall into two different classes. Assistant Teachers appointed prior to 2006 Rules cannot be brought in the same class in which the teachers appointed under 2006 Rules have been put. Fathers/mothers of the petitioners were appointed under different rules and regulations through out their service career. They were governed by different service conditions rules, legally, even after their death their heirs should also be given same benefits for which legal heirs 16 of any Government employees are entitled. Since the petitioners belonged to same class to which any other Government employees‟ legal heirs belonged, as such there could not have been this illegal and arbitrary classification. Equality Clause under Articles 14 and 16 of the Constitution of India, operates into every Act of the State and the State cannot deviate from it in the matters of compassionate appointment. This view has been propounded in the Division Bench decision of this Court in the case of Dilip Kumar Bhattacharya vs. State of Bihar reported in 2004(4) PLJR 889. In case of petitioners, the State Government cannot make any difference; simply on the ground that later on Personnel and Administrative Reforms Department had issued a notification dated 22.6.2009 depriving them of the benefit of appointment on any Government class III, Class IV posts. Petitioners being legal heirs of a Government employee are entitled for compassionate appointment, as per the recommendation of the District Compassionate Appointment Committee. The notification dated 22.6.2009 issued by the 17 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/Prkhand teachers‟, Posts in the fixed salary, since, the teachers appointed under 2006 Rules belonge to a different class. So far the petitioners are concerned, they could not have been discriminated by the respondents in the matters of compassionate appointment, treating them as legal heirs of „teachers‟ appointed under Rule 2006. Petitioners‟ fathers were appointed much earlier to the date of 2006 Rules coming into force. Since 2006 Rules has no retrospective application, as such in case of Assistant Teachers appointed earlier, this Rule will not 18 have any application. The Rule relating to compassionate appointment i.e. Rule 10 will also not have any application in the case of the petitioners. The respondents are directed to consider the case of petitioners‟ appointment in the light of letter no. 6905 dated 17.10.2008 issued by Personnel and Administrative Reforms Department, Government of Bihar, Patna, where it has clearly been pointed out that the posts of Panchayat/Prakhand/Nagar Shikshaks are not the posts under the State Government and with respect to such posts the District Compassionate Committee cannot make any recommendation since it is beyond the jurisdiction of the District Compassionate Committee. In the cases of some of the petitioners, the District Compassionate Committee had made recommendation for their appointment as per their eligibility on Class III and Class IV posts. The respondents should appoint the petitioners on any Government posts as per the recommendation of the Compassionate Committee or allow the petitioners‟ 19 regular pay scales of an Assistant Teacher. The respective District Compassionate Appointment Committee are further directed to recall the application filed by some of the petitioners for their compassionate appointment, which have been returned by the Compassionate Committee in the light of Government notification dated 22.6.2009. In such cases, recommendation should be made by the District Compassionate Committee for compassionate appointment of the petitioners, on any class III or Class IV posts as per the eligibility of the petitioners. The respondents are further directed to consider the claim of the petitioners for arrears of salary, in the regular scale,as the petitioners have been appointed on the post of Panchayat/Prakhand Teachers, ignoring the recommendation of the compassionate Committee for their appointment on class III Government post in regular scale. Since, the District Superintendent of Education, of the respective Districts, were not competent to ignore the recommendation of the Compassionate Committee, appointment letters issued in 20 favour of some of the petitioners, requires modification and regular pay scale should be allowed to such petitioners as Committees‟ decision is the collective decision and not an individual decision. The respondents will comply the direction of this Court in case of petitioners as well as in cases of all similarly situated persons. There should not be any undue delay in compliance of the direction of this Court, preferably the direction of this Court should be complied within twelve weeks from the date of production/communication of this order. (Mridula Mishra,J.) A.Kumar