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. ------ 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. ------------ PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR JUSTICE MIHIR KUMAR JHA THE HON’BLE MR JUSTICE JYOTI SARAN O R D E R (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 12.7.1977 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 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