IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9377 of 2002 ANIL KUMAR YADAV, S/O SRI UCHIT PRASAD YADAV, R/O VILLAGE-BANDEHARA, P.S PARRABA (PARBATTA), DISTRICT-KHAGARIA. Versus 1.THE STATE OF BIHAR. 2.THE DIRECTOR, DEPARTMENT OF EDUCATION, GOVERNMENT OF BIHAR, PATNA. 3.THE DISTRICT SUPERINTENDENT OF EDUCATION, KHAGARIA. 4.THE DISTRICT SUPERINTENDENT OF EDUCATION, BEGUSARAI. 5.SHAMBHU NATH THAKUR, S/0 LATE MOHENDRA THAKUR, R/O VILLAGE-TALAN JAKIA, P.S.BHAGWANPUR, DISTRICT-BEGUSARAI. AT PRESENT ASSISTANT TEACHER, PRIMARY SCHOOL, FULMALIK, P.S. SAHPUR, DISTRICT- BEGUSARAI. For the petitioner:- Mr. Ripudaman Prasad Sinha, Mr. Vinay Kumar Mishra and Arun Kumar Mishra. For the respondents:-Sashi Bhushan Jha(S.C-2). ----------- 08/ 28.03.2011 Heard Mr. Ripudaman Prasad Sinha, counsel for the petitioner and counsel for the State. This writ application has been filed for following relief:- “That this is an application on behalf of petitioner for issuance of a writ, order or direction including a writ in the nature of Certiorari for quashing the order dated 17.06.2002 vide letter no. 1200 passed by the District Superintendent of Education, Khagaria as contained in Annexure-3 and also for issuance of a writ of direction to respondents to forthwith appoint the petitioner on the post of Assistant Teacher in the Bapuji Smarak Middle School, Mansi on the basis of compassionate ground and also for issuance of any other writ, order or direction as your lordships 2 may deem fit and proper. Mr. Singh, learned counsel for the petitioner would submit that even though the school in which the wife of the petitioner was working was a non-governmental institution but then the circular dated 05.10.1991, laying down the scheme of compassionate appointment would be squarely applicable in view of the following provisions made thereunder:- ¼1½ fdudk p;u gks ldrk gS & ¼d½ vuqdEik ds vk/kkj ij fu;qfDr dk ykHk oSls e`r ljdkjh lsod ds ,d gh vkfJr dks vuqekU; gksxk ftudh e`R;q lsokdky esa gqbZ gSA ¼[k½ bl gsrq ljdkjh lsod mls gh ekuk tk;sxk ftldh fu;qfDr] Lohd`r in ds fo:) fof/kor dh xbZ gksA ¼x½ lsokdky esa e`r ljdkjh lsodksa ds vkfJrksa dks gh vuqdEik ds vk/kkj ij fu;qfDr dh tk ldrh gSA vkfJr ds vurxZr dsoy iq=] vfookfgr iq=h rFkk iq= dh fo/kok iRuh lfEefyr jgsxhA nÙkd iq=] nkekn] Hkrhtk vkfn dks vkfJr ugha ekuk tk;sxkA ¼?k½ vuqdEik ds vk/kkj ij fuEufyf[kr izkFkfedrkvksa ds vuqlkj muds vkfJr dh fu;qfDr dh tk;sxhA ¼i½ e`r lsod dh iRuh ¼ii½ iq= ¼iii½ vfookfgr iq=h ¼iv½ iq= dh fo/kok iRuh ¼M-½ ;fn ifr iRuh nksuks ljdkjh lsok esa gks vkSj fdlh ,d dh e`R;q gks tk;s rks oSlh fLFkfr esa vuqdEik ds vk/kkj ij fu;qfDr dk ykHk muds ifjokj ds fdlh vkfJr dks ugha feysxkA ¼p½ ;fn dksbZ efgyk ljdkjh lsok esa gks vkSj muds ifr fdlh ljdkjh lsok esa dk;Zjr ugha gksa] rks efgyk ljdkjh lsod dh e`R;q mijkUr muds ifr dks vuqdEik ds vk/kkj ij fu;qfDr dk ykHk izkIr gks ldsxkA He has accordingly submitted that 3 the impugned order rejecting the claim of appointment of the petitioner on the ground, that the school of the wife of the petitioner being aided school and such power of appointment is vested in its Managing Committee is unsustainable. Mr. Singh, has further submitted that the expression Rajya Samposhit Sansthan as used in the aforementioned paragraph-11 of the aforesaid circular reading as follows:- ¼11½ bl ifji= dh izHkko lhek & ;g ifji= jkT; ljdkj ds v/khuLFk lHkh yksd miØeksa] Lo'kklh fudk;ksa] izkf/kdkjksa] fuxeksa] i"kZnksa rFkk jkT; lEiksf"kr laLFkkvksa ij Hkh iw.kZ:i ls ykxw le>k tk;sxkA would also in its wide sweep include aided schools whose teachers are being paid salary from the funds of the Government specially when they are also entitled to receive pension in the same manner as that of the Government servant. In this context, he has also referred to the family pension payment order of the petitioner, wherein it has been declared that the petitioner, after the death of his wife would be entitled for certain amount of family pension. He would thus contend that since the wife of the 4 petitioner was receiving payment of salary from the funds of the Government and after her death he was also allowed to draw the family pension from Government exchequer, the other part of benefit of compassionate appointment under Government policy dated 5.10.1991 could not have denied to him. In this case, the respondents have filed their counter affidavit and supplementary counter affidavit explaining the whole thing, wherein their main plank of defence is the government policy of compassionate appointment in circular dated 5.10.1991 can not be made applicable for giving benefit of compassionate appointment inasmuch as neither the wife of the petitioner was a government servant nor Government and/or the Governmental authorities were/are the appointing authorities of the school of the wife of the petitioner, it being only an aided institution, wherein the Government has the limited obligation of making the payment of grant of financial aid by way of payment of salary. It has further been explained that the expression "Rajya Samposhit Sansthan" in 5 the circular dated 5.10.1991 would not include a school receiving only grant of salary of teachers inasmuch as their expenditure on establishment cost is not footed by the Government. Citing example of A.N. Sinha Institute of Social Studies, Sinha Library State Public Library and K.P Jaiswal Institute the learned counsel for the State had explained that since they were under fall control of the State Government for whom a committed expenditure on all the heads be it expenditure on its establishment or payment of salary was met by funds the budgetary allocation of the state after declaration of such institution being Rajya Samposhit Sansthan. In other words, it has been sought to convey that the aided schools alike one in which the wife of the petitioner was working was not a Rajya Samposhit Sansthan, so as to be extended the benefit of the policy of compassionate appointment. Finally it has also been explained in the counter affidavit that merely extending payment of salary and/or reimbursement to the teachers of the aided schools would not make such Government 6 servant, inasmuch as, only limited benefits at par with Government servant have been extended to the teachers of Madarsa and other aided schools but then such extent of financial aid by the Government would not change the basic feature of the school of its remaining a private institution, wherein power of appointment and/or control of its employee still remains with in the Managing Committee/Governing body of such private institution. In the considered opinion of this Court, the main plank of the petitioner of seeking appointment on compassionate ground on the basis of clause-11 of the circular dated 05.10.1991, is based on a wholly misconceived premise. The same becomes viable from the reading of the subject of the circular and its first paragraph which reads as follows:- lsokdky esa e`r ljdkjh lsodksa ds vkfJrksa dks oxZ &3 ,oa 4 ds inksa ij vuqdEik ds vk/kkj ij fu;qfDr dh izfØ;kA funs'kkuqlkj dguk gS fd vc rd lsokdky esa fdlh ljdkjh lsod dh e`R;q gksus ij e`r ljdkjh lsod ds vkfJrksa dks oxZ &3 ,oa oxZ &4 ds inksa ij fu;qfDr gsrq dkfeZd,oa iz'kklfud lq/kkj foHkkx }kjk 7 fuxZr lHkh vuqns'kksa dks voØfer djrs gq, ljdkj us ;g fu.kZ; fy;k gS fd vuqdEik ds vk/kkj ij fu;qfDr dh izfØ;kvksa dks bl izdkj ljy ,oa izHkkodkjh cuk;k tk;s fd ljdkjh lsod ds e`R;ksijkUr mlds vkfJr dks fcuk foyEc ds oxZ &3 ds dfri; inksa vFkok oxZ 4 ds inksa ij fu;qfDr fey ldsA bl mn~ns'; ls ljdkj us fuEukafdr fu.kZ; fy;k gS& (underlining for emphasis) From the aforementioned reading of the circular as a whole with reference to underlined portion it would become clear that the same is applicable only in the case of Government servant and the question is therefore, who would be a Government servant? Such expression having been defined in the Bihar Service Code. Nothing remains for speculation that it is only service under the Government held by a person having a tenure and fixed scale of pay that alone would make one a Government servant. Now a question arises, what was the status of the wife of the petitioner. Admittedly her appointment was made by the Managing Committee which had the power of managing the school including making payment in the school. Obviously, she was not a 8 Government servant merely because the school was selected for grant in aid for payment of salary of such teachers of a private school. Thus by virtue of a teacher of an aided institution, it cannot lead to the conclusion that the wife of the petitioner had also become a Government servant. Being extended benefit like a Government servant and becoming Government servant are two different things in law. It is true that the wife of the petitioner was being paid her salary by way of grant from the State Government fund, by way of assistance from exchequer of the State and therefore, when the Government also had taken a policy decision to extend the retirement benefits to such teachers of private school receiving aid from the Government, alike a Government servant, the wife of the petitioner having died in service of the private school, made the petitioner also entitled for grant of family pension as per the Government decision. Based on aforesaid premises can it still be said that since the petitioner was given family pension in terms of the 9 Government decision, he would also become entitled for appointment on compassionate ground because he was also paid family pension as payable to a dependent of a Government servant? Here lies the main rub, inasmuch as, this Court in aforesaid quoted portion para-11 of the Government circular dated 05.10.1991 has found that it has been specified therein that its policy of compassionate appointment could be enforced and extended to certain kinds of non Governmental institutions but a decision to that effect had still to be taken by those institutions. Thus a company incorporated under the Companies Act being a State undertaking to whom also the scheme of compassionate appointment under government circular dated 5.10.1991 has been extended could only become applicable if such Government company has passed its own resolution to this effect in terms of is Memorandum of Association before its employees could avail the benefit of compassionate appointment. Such conscious decision therefore has to be taken by those institutions or bodies named and included in 10 para-11. Therefore, the meaning of expression public undertaking, Autonomous Institutions, Authorities, Board, corporation and State maintained institutions (Rajya Samposhit Sansthan) in Para-11 of the Circular dated 5.10.91 have to be understood in the context that for them the Government does not become the appointing authority and since it meets the entire cost of expenditure liberty is given to such institutions to extend its power of appointment also on ground including compassionate ground. The necessary aspects therefore, would be whether first of all the school of the wife of the petitioner was included in the circular dated 05.10.1991 and secondly if all it was included, has the Managing Committee of this school passed resolution for adopting the Government circular regarding appointment on compassionate ground. In the considered opinion of this Court the first aspect as to whether the school of the petitioner is Rajaya Samposhit Sansthan has been clearly explained in the 11 supplementary counter affidavit, wherein it has been stated as follows:- “That it is stated that there is a difference between a school receiving aid from the Government and SAMPOSHIT SANSTHA i.e an institution maintained by the Government. An institution maintained by the Government means an institution constituted by the Government whose financial liability is on the Government though they are not part of the Government. In this category come Government undertakings and Higher Educational Institutions which either by statute or by executive order have been constituted by the Government and whose financial liability over and above, self generated income is on the Government though technically they are not part of the Government. In this category are such institution e.g. A.N. Sinha Institute of Social Studies, Sinha Library (State Public Library) Rajya Bhasha Parishad andn Industrial undertakings. Aided schools on the other hand mean such schools to which the Government has decided to give fixed help though they are bound to follow the law and regulation regarding their functioning and discharge of liabilities. Beyond the Government aid, the Managing Committee of the schools have to raise their own resources. That where the Government has undertaken liability, it has done so in specific terms. Vide letter no. 23/VI-42/82 Shi-68 dated 06.06.1983/29.06.88, the Government of Bihar provided for payment of pension, gratuity and G.P.F. to the teachers of Aided schools and Minority Schools. In that letter, it is clearly provided that a fund shall be created on the retirement of a teacher at the age of 58 years comprising the share of the Managing Committee to the Provident Fund of the retiring teacher, Government G.P.F. and other payments 12 by way of retiral benefits shall be deposited in a fund which would be the source of pension. Besides this pension, they will be entitled only to Gratuity and G.P.F. In para 9 of the letter, it is specifically mentioned that beyond this, no other benefits as admissible to Government servants shall be available to the teacher of schools run by minorities or receiving aid from the Government.” Despite service of the copy of the aforesaid affidavit on counsel for the petitioner nothing has been brought on record by the petitioner as with regard to the School of the wife of the petitioner covered by aforementioned explanation given by the respondents in their counter affidavit making a clear distinction between the Rajaya Samposhit Sansthan (State maintained institutions) and the aided schools. Mr. Singh, however, sought to rely on certain dictionary meaning of the word 'aid'. The difficulty however will be that one has not find the meaning of the expression 'aid' but what would be the meaning and scope of expression of "Rajya Samposhit Sansthan", inasmuch as, if the school of the wife of the petitioner would be covered by the Rajaya Samposhit Sansthan, probably the school of the Managing 13 Committee of the petitioner may have an obligation to first adopt the Government resolution in its circular dated 5.10.1991 and thereafter consider the case of the petitioner for his being appointed on compassionate ground. It is thus clear that the dictionary meaning of the word 'aid' either by way of verb or proverb will have no bearing on the issue. In this context, it would be also relevant to take into account the growth of different educational institutions in this State. Right from the beginning, the education being imparted in schools and colleges under the private hands with its Managing Committee they do approach the Government for financial aid and assistance. In certain institutions like the colleges they come under the banner of constituent colleges distinguished from affiliated colleges. Similarly the schools are Government School or private school. The Rajya Samposhit Sansthan infact became a necessity for maintaining such established private institutions whose not only total payment of salary but other expenses also 14 was the commitment to the policy of the government of maintaining such institute. It may be noted that when A.N. Sinha Institute of Social Studies, Sinha Library(State Public Library) was taken as Rajya Samposhit Sansthan, the concept was not only to preserve these institutions but also to make arrangement of all sort of grant being available for running the institution. That is how in this State Rajya Samposhit Sansthan, came to be established and lest therebe any confusion in this aspect, this also may be made clear that there were also certain schools which were in Rajya Samposhit Sansthan,. Thus it would be apparent that whenever the Government intended to explain the benefit of Rajya Samposhit Sansthan, there was a declaration to this effect, especially for such institute as Rajya Samposhit Sansthan. That however, is not the case in hand, inasmuch as, there is no document on record to show that the school of the wife of the petitioner was ever declared or included in the category of Rajya Samposhit Sansthan. Thus merely because the school of the wife 15 of the petitioner was still receiving grant in aid for payment of salary of teachers from the Government that will not mean that it had become Rajya Samposhit Sansthan. That being so, the answer to the first aspect being in negative would automatically lead to rejection of the other aspect of the case of the petitioner, so far it relates to claiming benefit of compassionate appointment under Government circular dated 05.10.1991 for the school of the wife petitioner inasmuch as it is an admitted fact neither the Managing Committee of the school of the wife could adopt the government resolution nor in reality it had done so. Thus the petitioner's claim for appointment on compassionate ground has no base either fact or in law. Additionally this court would find that as all institutes mentioned in paragraph no. 11 of the government circular dated 5.10.1991 are independent bodies having their own rules and regulations thus even for the sake of argument, if it is accepted that there would be no distinction between the aided school and Rajya Samposhit 16 Sansthan, even then the Government or Government authorities cannot do anything as with regard to the appointment of the petitioner on account of premature death of his wife. It is only the school of the petitioner, which is a private body, will have to first adopt the resolution dated 5.10.1991 for making appointment and after such a private body would make appointment of the petitioner that could be made a subject matter of the approval of the Government extending payment of salary. Admittedly neither the school of the wife of the petitioner has passed any resolution adopting the Government circular dated 5.10.1991 nor has made appointment of the petitioner on compassionate appointment. In that view of the matter, when the school is also not "State" within the meaning of Article 12 of the constitution of India, this Court cannot issue any direction to such a private school for the limited relief of compassionate appointment of the petitioner. It is in this background that the wording of the District Superintendent of 17 Education (D.S.E.) in the impugned order has to be appreciated wherein he has merely communicated that since, the Government authorities are not the appointing authority, any decision as with regard to the appointment on compassionate ground can only be taken by the Managing Committee. This court for the sake of clarity would quote the aforesaid decision contained in letter dated 17.06.2002 of D.S.E., Siwan which reads as follows:- vusDlpj & 3 i=kad 1200@ izs"kd & Jh vkj0 oh0 ik.Ms; ftyk f'k{kk v/kh{kd [kxfM+;k lsok esa Jh vfuy dqekj ;kno ifr Lo0 izfeyk dqekjh e`r f'kf{kdk lgk;rk izkIr ckiw Lekjd e0 fo0 ekulhA xzk0 + iks0 cUnsgjk Fkkuk ijcrk ftyk [kxfM+;kA [kxfM+;k] fnukad 17-6-02 fo"k; % vuqdEik ds vk/kkj ij fu;qfDr ds lacaf/k esa A egk'k;] mi;qZDr fo"k; ds laca/k esa dguk gS fd esjs ljdkjh lgk;drk izkIr fo|ky; ds e`r ljdkjh lsod ds vkfJrksa dks vuqdEik ds vk/kkj ij ukSdjh dk izko/kku dkfeZd ,oa iz'kkfud lq/kkj foHkkx ds i=kad 13293 fnukad 5-10-91 dh dafMdk &11 ds vuqlkj ugha gSA vkidh iRuh xSj ljdkjh] lgk;rk izkIr ckiw Lekjd e0fo0 ekulh esa dk;Zjr Fkh ftlesa fu;qfDr dk izko/kku izcU/k lfefr dks gSA fo'oklHkktu g0@& vLi"V 13@6 ftyk f'k{kk v/kh{kd] [kxfM+;k 18 The result of the aforementioned discussion would be that the relief which has been sought by the petitioner, in this writ application can not be given. Nonetheless if the petitioner feels that he still can persuade the Managing Committee to consider his case on compassionate ground he can still to do so inasmuch as if the Managing Committee of the school of wife of the petitioner having also adopted rules and regulations of the resolution dated 5.10.1991 after taking into account that the death of the wife of the petitioner has taken place way back on 03.03.2001, and the sole dependent, the petitioner, can not only survive beyond 10 years even after receiving family pension which were probably sufficient to pull him in next ten years after the death of his wife takes a decision to appoint on the vacant sanctioned post as per staffing pattern, it could still approach the Government for release of fund provided the petitioner is a trained teachers an essential requirement on the post of teacher 19 in aided school. Before concluding, this Court must take into account that learned counsel for the petitioner has tried to rely on a case of appointment of one Shambhu Nath Thakur about whom it has been claimed that he was appointed on compassionate ground after the death of his father Mahendra Nath Thakur. The appointment letter of Shambhu Nath Thakur however is not brought on record but it is an admitted fact that the appointment of Shambhu Nath Thakur was made by the Managing Committee of the school and therefore, when two private schools are having their different rules and regulations and Managing Committee, it would be difficult for this court to hold that a decision taken by one Managing committee would also be binding on the decision taken by the other Managing Committee. The plea of discrimination also at least will not be available against the State or its officials, inasmuch as, the two Managing Committee either the school of the wife of the petitioner or that of Shambhu Nath Thakur are private bodies and for them the 20 concept of discrimination will not be the same, as applicable in the Government service. This court must clarify that one wrong done in the case of Shambhu Nath Thakur on compassionate ground by the Managing Committee of the school in question cannot become a precedent to be followed by this Court when it has come to a conclusion that the school of the wife of the petitioner was not a government institute nor was she a Government servant nor the Government circular was applicable to the school of the wife of the petitioner. That being so, this application is devoid of any merit and is accordingly dismissed. (Mihir Kumar Jha,J) Ranjan