IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL NO.1164 OF 2009 IN (CIVIL WRIT JURISDICTION CASE 7218/2007) ========================================================= 1.The State Of Bihar 2.The District Magistrate, Buxar 3.The District Superintendent of Education, Buxar 4.The Area Education Extension Officer, Dumraon, District-Buxar 5.The Block Education Extension Officer, Brahmpur, District-Buxar .... .... Appellant/s Versus Vishwanath Pandey, S/o Late Dadan Pandey, R/o Village and P.O.- Pokhranhan, P.S.- Bagen Gola, Block-Brahmpur, District-Buxar .... .... Petitioner/Respondent/s ========================================================= Appearance : For the Appellant/s : Mr. D.K. Sinha, Sr. Adv (AAG-2) : Mr. S.B. Kumar, Adv (SC-7) For the Respondent/s : Mr. Jitendra Kr. Roy, Adv. ========================================================= CORAM: HONOURABLE JUSTICE SMT. T. MEENA KUMARI and HONOURABLE MR. JUSTICE VIKASH JAIN ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE VIKASH JAIN) This L.P.A. has been filed against the order dated 19.2.2009 passed by the learned Single Judge in C.W.J.C. No. 7218 of 2007, inter alia, allowing the writ petition and directing the District Superintendent of Education, Buxar, to make correction in the appointment letter vide Memo No. 201 dated 25.11.2006 of the petitioner (Respondent herein) and for making payments of arrears and current salary of the Respondent, thus effectively granting the Respondent the regular pay scale applicable in respect of his appointment as teacher as prayed for, in place of the fixed salary payable in Patna High Court LPA No.1164 of 2009 dt.19-08-2011 2 terms of the aforesaid appointment letter. 2. The brief facts relating to the case may be narrated hereinafter. 3. The undisputed facts of the case are that the father of the Respondent, an Assistant Teacher, died in harness on 14.10.2004, pursuant to which the Respondent made an application on 05.02.2005 for his appointment on compassionate basis. 4. As the requested appointment was not forthcoming, the Respondent filed C.W.J.C. No. 7258 of 2005 for consideration of his application which was disposed of by this court in terms of the order dated 29.06.2005 (Annexure-1). It is relevant to reproduce the text of the order which reads as follows:- “Heard both the parties. Let the application of the petitioner for appointment on compassionate ground be decided one way or the other in accordance with law as quickly as possible but not later than 12 weeks from the date of service of a copy of this order upon the respondent no.2. This disposes of the writ petition”. 5. Pursuant to the aforesaid order of this Court, the District Compassionate Committee, Buxar in its decision dated 29.11.2005 seems to have recommended the Respondent’s name for compassionate appointment but owing to a ban against compassionate appointment of teachers as evident from Patna High Court LPA No.1164 of 2009 dt.19-08-2011 3 the Human Resources Department’s letters dated 17.11.2003 and 16.4.2005 (Annexures-3 and 4) the Committee recommended the Respondent’s appointment to a class III post. It appears, however, that there was no availability of any class III post in the department at the relevant time and as such the matter was once again placed for consideration before the District Compassionate Committee. 6. Thereafter a material change in circumstances occurred with the issuance of the State Government’s Notification as contained in letter no. 1078 dated 01.07.2006 through the Human Resources Department, whereby the existing ban on compassionate appointment of teachers was withdrawn and a decision taken to make appointments to the post of teacher. 7. Ironically, yet another material factor simultaneously came into play with the Panchayat Prarambhik Shikshak (Bihar Panchayat Primary Teachers Appointment and Service Conditions Rules, 2006) (hereinafter referred to as “the Rules”), coming into effect also on 01.07.2006, which contributed to the instant controversy as we shall presently see. 8. The preamble to the Rules is relevant and may be extracted as follows:- **Hkkjr ds lfoa/kku dh /kkjk 243N ¼11oha vuqlwph en la[;k 17½ rFkk fcgkj iapk;r jkt vf/kfu;e] 2006 ds vuqPNsn 47 ,oa 48 lg ifBr vuqPNsn 146 ds v/khu iznRr “kfDr;ksa dk iz;ksx djrs gq;s jkT; ljdkj jkT; ds xkzeh.k {ks=ks ds izkjfEHkd fo|ky;ks esa f”k{kdksa ds fu;kstu gsrq fuEukafdr fu;ekoyh cukrh gSA Patna High Court LPA No.1164 of 2009 dt.19-08-2011 4 9. In the light of the lifting of the aforesaid ban w.e.f. 01.07.2006, the District Compassionate Committee reconsidered the matter of the Respondent’s appointment on compassionate basis on 25.09.2006 and recommended for his appointment on the post of teacher. 10. The letter of appointment was finally issued vide memo no. 201 dated 25.11.2006 under the signature of the District Superintendent of Education, Buxar (“DSE” for short), by which the Respondent was appointed as teacher on the vacant post in Kanya Madhya Vidyalay, Raghunathpur with the admissible fixed pay. It is noteworthy that the Respondent gave his joining on 01.12.2006 before the Headmaster of the school and also submitted his documents as required, upon which his joining was accepted and he commenced working as such. 11. The Respondent has been agitating his right to a regular pay scale and has questioned the validity of his appointment on the basis of fixed pay as stated in his appointment letter dated 25.11.2006. As his claim was being denied, the same led to his filing C.W.J.C. 7218 of 2007 which has been disposed of in terms of the order dated 19.02.2009 impugned herein. 12. Learned senior counsel, Mr. D.K. Sinha (AAG-2) submitted on behalf of the Appellant-State that the Respondent was not entitled to a regular pay scale and was merely seeking to take advantage of the fact that the appointment letter Patna High Court LPA No.1164 of 2009 dt.19-08-2011 5 through inadvertent mistake had been issued by the D.S.E. and which ought to have been issued by the Panchayat Samiti comprising of its Pramukh and other members in terms of the Rules. It is submitted that the Respondent’s appointment has been made as “Prakhand Teacher” under Rule 10 of the Rules and the requisite consent of the Respondent for such appointment is intrinsically implied from the very fact that he gave his joining and has been working on the post. The Respondent has thus not questioned the appointment per se rather he has only questioned the validity of the fixed pay admissible to him. 13. Leaned counsel for the State further highlights the provisions of the Rules, according to which the power of appointment in middle schools of the blocks came to vest in the respective Panchayat Samitis. To that extent, he fairly concedes that the appointment letter ought to have been issued by the concerned Panchayat Samiti rather than by the DSE. This however, he submits, cannot alter the position that with the advent of the 2006 Rules, all prior orders, circulars etc. stood repealed under Rule 20 and the only saving was in respect of the teachers who had already been appointed prior to 01.07.2006 in which case the service conditions of such persons were not to be affected by the said Rules. Such was not the case here inasmuch as admittedly the Respondent’s appointment has been made after the Rules came into force and Patna High Court LPA No.1164 of 2009 dt.19-08-2011 6 the mere fact of his application for compassionate appointment having been made prior thereto, namely on 05.02.2005 is of little moment. It is submitted that the DSE was no longer the competent authority for granting appointment of teachers in the Block Primary Schools, rather the very jurisdiction in that regard had shifted to the Panchayat Samiti. 14. Learned counsel for the Respondent, on the other hand, reiterates his stand taken before the learned Single Judge to say that the dominant facts will go to establish that he was intended to be appointed on a regular pay scale, given that the appointing authority was the DSE and further, that he had never given his consent for appointment on fixed pay which was a pre-condition in terms of Rule 20. Besides it is submitted that his appointment as teacher would have been made on a regular pay scale basis earlier but for the existing ban. The only effect of the lifting of the ban, therefore, was that he became eligible for appointment and regular pay scale after 01.07.2006. 15. On careful consideration of the materials on record and the submissions of the parties, we are of the view that the Respondent’s appointment must be treated as having been made under the 2006 Rules and there is no error in granting him the fixed pay as done in terms of his letter of appointment dated 25.11.2006, notwithstanding that the same has been issued by the DSE through inadvertence. 16. It is evident that the controversy in the present Patna High Court LPA No.1164 of 2009 dt.19-08-2011 7 case arises mainly because the ban against appointment teachers was lifted on 01.07.2006 and it is on the very same date that the Rules also became effective. 17. There can be no gainsaying that once the Rule came into force, the Panchayat Samiti came to be vested with the exclusive jurisdiction in the matter of appointment of teachers (known as Prakhand Teachers) in respect of the primary schools falling within the rural areas of the State. This is evident from the preamble of the Rules as already extracted above. 18. No doubt the ban against appointment of teachers was lifted on 01.07.2006, but at the same time, the fact that the Rules also came into existence on the same day cannot be lost sight of. The scrapping of the ban thus merely entitled the Respondent for appointment as a teacher which was why the matter was reconsidered by the District Compassionate Committee and his appointment as a teacher did indeed ensue. However, the question of his appointment to a particular vacant post was an independent matter altogether. This could only be effected in terms of the newly introduced Rules which had also come into force on and from 01.07.2006. All appointments thereafter on the post of teacher insofar as the rural areas of the State were concerned could only be made with reference to the 2006 Rules. In other words, the jurisdiction to appoint teachers after 01.07.2006 became restricted on Patna High Court LPA No.1164 of 2009 dt.19-08-2011 8 territorial basis having regard to the location for which the appointment had to be made. Thus, if appointment had to be made in rural areas, it could be done solely by the Panchayat Samiti and the DSE continued to be the competent authority for making appointments, only in the non-rural areas of the State. 19. The further submission of the learned counsel for the Respondent is that there are two classes of teachers working side by side in the block schools, some on a regular pay scale while others on a fixed pay basis. He therefore claimed that the Respondent was eligible for appointment on regular scale basis and the Rules would not pose a hurdle in the way. 20. We are unable to accept this proposition inasmuch as admittedly, regular pay scale was being enjoyed by only those teachers who had been appointed prior to 01.07.2006 and it is by virtue of the savings clause embodied in Rule 20 that their service conditions could not have been altered. That is not the situation of the Respondent. 21. It may also be relevant to note that if the variance in the two pay structures had been objectionable or impermissible as offending Article 14, the same might have been challenged by other teachers working on fixed pay basis under the new Rules but the same, however, does not also appear to have been challenged by the others on that score. 22. We have also carefully gone through the impugned order of the learned Single Judge and we feel that the Patna High Court LPA No.1164 of 2009 dt.19-08-2011 9 decision in favour of the Respondent appears to have resulted from a possible misappreciation of the earlier order dated 29.06.2005 passed by this Court in C.W.J.C. No. 7258 of 2005 as already reproduced above. 23. It is clear that the learned Single Judge has proceeded on the footing that “the Respondent was appointed on the post of Assistant Teacher as per the direction of this Hon’ble Court in C.W.J.C. No. 7258 of 2005”; that “appointment of the Respondent on the post of Assistant Teacher was made as per direction of this Hon’ble Court”; that “so far as the appointment of the Respondent is concerned, it was special appointment on the direction of the High Court”; and finally that “the direction was issued for making appointment of the Respondent as Assistant Teacher on compassionate ground”. 24. These observations are clearly errors of record in that the earlier writ petition had been disposed of with an open direction for disposal of the writ petitioner’s application for appointment on compassionate ground by taking a decision “one way or the other in accordance with law”. It is therefore, evident that this Court had not issued any direction for appointment of the writ petitioner as an Assistant Teacher. This crucial aspect goes to the very root and changes the entire perspective of the matter. 25. The District Compassionate Committee has validly recommended the case of the Respondent for Patna High Court LPA No.1164 of 2009 dt.19-08-2011 10 appointment as a “teacher”, which is also not disputed by the State. It can only be said that the appointment letter mentions an incomplete description as to the status of the Respondent as “teacher” which had to be understood as referable to a “Prakhand Teacher” contemplated under the 2006 Rules”. 26. We have taken note of the submission of the learned counsel for the appellant state that in fact the appointment letter had been issued by the DSE through inadvertence. At the same time, we also take note of the averment in para 4 of the counter affidavit filed on behalf of the DSE in course of hearing of the writ petition, which may be reproduced hereunder:- “That it is respectfully stated that earlier the salary of petitioner as Prakhand Teacher has been released through this office vide letter no. 16 (Ni.) Dated 15.1.2009 and the same has been sent to the authority concern for making the payment of petitioner”. It is, therefore, evident that the State Government has treated the petitioner as a Prakhand Teacher. 27. In the above view of the matter, therefore, we have no hesitation in concluding that the Respondent is entitled only for the fixed pay admissible in respect of a “Prakhand Teacher” in the status of which he was understood to have been appointed, and not for a regular pay scale. 28. The order dated 19.2.2009 passed by the learned Single Judge is accordingly hereby set aside and the Patna High Court LPA No.1164 of 2009 dt.19-08-2011 11 concerned authorities directed to make payment of the arrears of salary, if any be due, and resume payment of current salary to the Respondent on fixed pay basis in accordance with the 2006 Rules. The L.P.A. is accordingly allowed. PATNA HIGH COURT DT. 19.08.2011 FAHAD/AFR (T. Meena Kumari, J.) (Vikash Jain, J.)