IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.775 of 2010 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 2. THE DIRECTOR, PRIMARY EDUCATION, HUMAN RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 3. THE DISTRICT COMPASSIONATE APPOINTMENT COMMITTEE THROUGH ITS CHAIRMAN CUM DISTRICT MAGISTRATE CUM COLLECTOR, VAISHALI. 4. THE DISTRICT MAGISTRATE CUM COLLECTOR, VAISHALI. 5. THE DISTRICT SUPERINTENDENT OF EDUCATION, VAISHAI. … RESPONDENTS/APPELLANTS. VERSUS 1. SHAILENDRA KUMAR, SON OF LATE PRAHALAD PATHAK, RESIDENT OF BANK MENS COLONY, YUSUFPUR, P. S. HAJIPUR TOWN IN THE DISTRICT OF VAISHALI. 2. NITESH KUMAR, SON OF LATE SHIV SHANKAR PRASAD SINGH, RESIDENT OF VILLAGE- CHAKMUNI, P. S. VAISHALI IN THE DISTRICT OF VAISHALI. 3. AJAY KUMAR, SON OF LATE SATYA NARAYAN PRASAD SAH, RESIDENT OF VILLAGE- MAJHAULI, P. S. VAISHALI IN THE DISTRICT OF VAISHALI. 4. VIJAY RATNA PANKAJ, SON OF LATE SHIV SHANKAR RAI, RESIDENT OF VILLAGE- CHAKAKOO, P. S. BHAGWANPUR IN THE DISTRICT OF VAISHALI. …PETITIONERS/ RESPONDENTS. With LPA No.782 of 2010 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT GOVT. OF BIHAR, PATNA 3. THE DISTRICT MAGISTRATE -CUM-CHAIRMAN, DISTRICT COMPASSIONATE COMMITTEE JEHANABAD 2 4. THE ADDITIONAL COLLECTOR , ESTABLISHMENT JEHANABAD 5. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION GAYA 6. THE DISTRICT EDUCATION OFFICER JEHANABAD 7. THE DISTRICT SUPERINTENDENT OF EDUCATION JEHANABAD. … RESPONDENTS/APPELLANTS VERSUS JITENDAR KUMAR S/O LATE BHAGWAN PRASAD SHARMA R/O VILL HATI , P.S.KAKO, DISTT-JEHANABAD. …. PETITIONER/ RESPONDENT. ----------- For the appellants : Mr. Braj Kishore Pd. Sinha, Adv. : Mrs. Nivedita Nirvikar, G. P. 16 For the respondents : Mr. Sunil Kumar, Adv. : Mr. Ranjeet Kumar, Adv. -------- 4. 12.05.2010 I. A. No. 4130 of 2010 & I. A. No. 4133 of 2010 Having heard learned counsel for the parties as also taking into consideration the facts and circumstances mentioned in these applications, the delay of 70 days and 41 days in preferring L.P.A. No. 775 of 2010 and L. P. A. No. 782 of 2010 respectively is condoned. I. A. No. 4130 of 2010 & I. A. No. 4133 of 2010 are, accordingly, allowed. L. P. A. No. 775 of 2010 & L. P. A. No. 782 of 2010 3 As we have condoned the delay we, with the consent of the parties, are also inclined to take up these two appeals for final disposal at the motion stage. L. P. A. No. 775 of 2010 arises out of CWJC No. 11184 of 2009 which was disposed of by the learned Single Judge by order dated 8.1.2010 directing the authorities of the State Government to appoint respondents-writ petitioners on an appropriate post in the Government on compassionate ground. L. P. A. No. 782 of 2010 arises out of the order dated 25.01.2010 passed by the learned Single Judge in CWJC No. 13957 of 2009 wherein following the ratio of the judgment of this Court in the case of Brajesh Kumar & Ors vs. the State of Bihar & Ors., reported in 2010 PLJR 339, a direction has been issued for issuance of appointment letter in favour of respondent-writ petitioner against any vacant sanctioned post of Education Department or any Government post by way of compassionate appointment. The issue as with regard to appointment on compassionate ground on a Government post vis-à-vis the post of Panchayat teacher has now been decided by the 4 Full Bench of this Court in the case of State of Bihar & Ors. Vs. Rajeev Ran Vijay Kumar in L.P.A. No. 321 of 2010 disposed of on 11.5.2010 wherein while laying down the law that appointment on compassionate ground on the post of Panchayat teacher was permissible in terms of scheme of compassionate appointment of the State Government and that the law laid down by the learned Single Judge in the case of Brajesh Kumar (supra) was not correct, it has been held therein as follows:- 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 5 changes were made 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 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 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 6 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. “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 7 family does not work for earning any type of livelihood and, if he is working, his income is not sufficient to maintain 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. 7. 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 8 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 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 9 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 `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 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 nonteaching 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, 10 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 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 11 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 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 12 case vacancies are not available for the time being, then the concerned officer of 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 Government.” 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 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 13 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.” In view of the authoritative and binding pronouncement of the Full Bench of this Court in the case of Rajeev Ran Vijay Kumar (supra), the view recorded by the learned Single Judge in the two impugned orders which are the subject matter of these appeals must be held to be unsustainable and accordingly these appeals are allowed by setting aside both the impugned orders of the learned single Judge and the connected writ applications being CWJC No. 11184 of 2009 and CWJC No. 13957 of 2009 are dismissed. Before parting with, we must record here that the respondents-writ petitioners were desirous of being appointed against Government post and not on the post of Panchayat Teacher. Now in the changed scenario when the 14 appointment on Government posts on compassionate ground is not possible in view of the law laid down by the Full Bench judgment in the case of Rajeev Ran Vijay Kumar (supra) counsel for the respondents- writ petitioners in both the cases have shown their eagerness and willingness for consideration of the case of the respondents-writ petitioners in both the cases on the post of Panchayat Teacher. Mrs. Nivedita Nirvikar, learned counsel for the State of Bihar fairly submits that the cases of the respondents-writ petitioners for appointment on compassionate ground on the post of Panchayat Teachers would be considered and if there are vacancies they would also be appointed. We therefore while allowing these two appeals and setting the order of the learned Single Judge would give liberty to the respondents-writ petitioners to approach the competent authority for their appointment on compassionate ground on the post of panchayat teachers whereafter the said authority would consider the grievance of the respondents-writ petitioners favourably within a period of six months from the date of receipt/production of 15 a copy of this order. With the aforementioned observation and direction, both these appeals are disposed of. There would be, however, no order as to costs. Kanchan (Dipak Misra, CJ.) (Mihir Kumar Jha, J.)