IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6674 of 2010 1. MANISH NARAIN S/O LATE SHAIL KUMARI CHOUDHARY R/O MOHALLA- BALBHADRAPUR, P.S.- LAHERIASARAI, DISTT.- DARBHANGA Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, NEW SECRETARIAT, VIKASH BHAWAN, BAILEY ROAD, PATNA 2. THE SECRETARY, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVT. OF BIHAR, MAIN SECRETARIAT, PATNA 3. THE DEPUTY SECRETARY, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVT. OF BIHAR, MAIN SECRETARIAT, PATNA 4. THE DISTRICT MAGISTRATE CUM COLLECTOR CUM CHAIRMAN, DISTRICT COMPASSIONATE APPOINTMENT COMMITTEE, DARBHANGA 5. THE DEPUTY COLLECTOR (ESTABLISHMENT), DARBHANGA 6. THE ADDITIONAL COLLECTOR, DARBHANGA 7. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, DARBHANGA 8. THE DISTRICT EDUCATION OFFICER, DARBHANGA 9. THE PRINCIPAL, M.K.P. VIDYAPATI HIGH SCHOOL, LAHERIASARAI, DARBHANGA ----------- For the Petitioner:- Mr. Ganesh Prasad Singh,Senior Advocate For the State:- S.C.XI 3 20 .07.2010 Petitioner’s mother, Shail Kumari Chowdhary died in harness, on 12.3.2006, while working as Assistant teacher in M.K.P. Vidyapati High School, Laheriasarai, Darbhanga. Shail Kumari Choudhary was married to one S.N.Jha but subsequently deserted by her husband. During the 2 continuance of her conjugal life, she gave birth to two sons, petitioner Manish Narain and younger brother. Petitioner and his younger brother were brought up by their mother. Petitioner's father had filed Partition Suit No. 42 of 1985 for partition of properties in between his grand-father, father and other family members. In this suit, an order of injunction has been passed in favour of plaintiff/ Petitioner's father, and due to that defendants are restrained from making any transaction of the suit property. Petitioner’s case is that due to death of his mother, the sole bread earner of the family, the petitioner and his brother are left with no other source of income for their survival. The family properties can also not be disposed off because of the pending partition suit and the injunction order passed in favour of plaintiff. Petitioner and his brother are unemployed. 3 In this circumstance he filed his application for compassionate appointment, enclosing all requisite documents, which was forwarded by the District Education Officer, Darbhanga, with his recommendation to the District Compassionate Appointment Committee. The application filed by the petitioner was not placed immediately before the Compassionate Committee, due to the latches on the part of the Deputy Collector (Establishment), and consideration on his application was delayed. The Deputy Collector, Darbhanga in the meantime made several unnecessary query from the Principal of the school, where the mother of the petitioner was working. Finally the case of the petitioner was forwarded to the District Compassionate Committee in the year 2009. The District compassionate Committee in view of letter no. 2955 dated 4 22.6.2009 issued by the Personnel and Administrative Reforms Department, rejected the application of the petitioner. Petitioner is aggrieved due to rejection of his claim for compassionate appointment in the light of subsequent developments, which should not have been made applicable in his case. Petitioner's case is that his mother died in the year 2006, he filed his application immediately thereafter, in case his application for compassionate appointment, would have been considered, immediately, after its filing by the appropriate authority, there was no reason for its' rejection in view of letter No. 2955 dated 22.6.2009, issued by the Department of Personnel and Administrative Reforms. Counsel appearing for the petitioner submits that rejection of his claim for compassionate appointment in view of letter 5 no. 2955 dated 22.6.2009 is illegal and arbitrary. The mother of the petitioner was appointed long time back in the year 1983, pursuant to the recommendation of the School Service Board. Legally petitioner's case for compassionate appointment should have been considered in the light of rules of compassionate appointment, which were existing at the relevant point of time and not on the basis of Rules of appointment under Bihar Panchayat Elementary Teachers ( Appointment and Service Conditions) Rules, 2006 which came much later to the appointment and death of petitioner's mother. The directions in letter No. 2955 dated 22.6.2009 has no application in the case of the petitioner. In support of this contention, counsel for the petitioner has referred Clause II of letter dated 22.6.2009 which dealt with Rule 10 of Bihar Panchayat 6 Elementary Teachers (Appointment and service Condition) Rules 2006. It has been submitted that on plain reading of Rule 10 as quoted in letter dated 22.6.2009, it is clear that after framing of this rule, compassionate appointment of the dependents of the teaching and non-teaching employees, working in any school, primary/Elementary at panchayat level or prakhand level, shall be made on the available vacant post of Panchayat/Prakhand teachers, subject to their eligibility and subject to their giving consent for such appointment. So far case of compassionate appointment of the dependents of such teachers, who were appointed or died much before Promulgation of Bihar Panchayat Elementary Teachers (Appointment and Services Conditions) Rules, 2006, this rule cannot have any application. The letter dated 22.6.2009 has 7 resorted to illegal and arbitrary classification amongst the same category of Government employees. Any provisions mentioned in letter dated 22.6.2009 issued by the Department of Personnel and Administrative Reforms, cannot be a ground for rejection of the claim of the petitioner for compassionate appointment. Its' being boundened duty on the part of the State, is to make a reasonable classification among the employees, falling within two different category i.e. Assistant Teachers appointed prior to the coming into force of2006 Rules and those appointed before that. Since the mother of the petitioner was appointed under a completely different rule and her service condition as well as the service condition of the other similarly situated teachers, continued to be regulated and governed through those Rules and Regulations 8 throughout her service career, till her death, as such her legal heirs must get benefit of those service conditions adhering to which she was appointed. Since mother of the petitioner was not appointed under 2006 Rules, as such Rule 10 of 2006 Rules cannot be made applicable in his case of compassionate appointment. Counsel appearing for the petitioner has placed reliance on a decision reported in 2010 (1) PLJR 339 (Brajesh Kumar and others vs. State of Bihar & ors), wherein it has been held that the matters of compassionate appointment of legal heirs of such teachers who were appointed prior to coming into force of Bihar Panchayat Elementary Teachers (Appointment and Service Conditions) Rules, 2006, the Personnel and Administrative Reforms Department’s letter no. 2955 dated 9 22.6.2009 and rule 10 of the appointment Rules 2006 will have no application. Counsel appearing for the State on the other hand, has referred the decision of Full Bench in LPA No. 321 of 2010 and other analogous cases, whereby the decision reported in 2010 (1) PLJR 339 has been overruled. Counsel for the petitioner submits that the Full Bench decision in fact has not over-ruled, the decision reported in 2010 (1) PLJ 339, as none of the issue decided by this judgment has been taken into consideration and none of the finding recorded has been set aside. The Full Bench has not decided the issue already decided by the single judge in the reported decision of 2010(1) PLJR 339. Considering the fact that the full bench has recorded a finding that rule 10 of 2006 appointments Rules will have application in cases of all compassionate 10 appointment, without making any distinction on the ground of the date of appointment of the teachers in Primary/Prakhand schools, under the provisions of earlier Rules. Finding recorded before the Full Bench is as follows:- "We have referred to the above circular in extensor 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 11 compassionate appointment by its very nature is an exception and the same has to be treated as an exception for all purposes. Possible, the matter would have been different had the rule been in force conferring a particular privilege on the legal 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. 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." So far, the plea taken by the compassionate committee, on the ground that there was no legal/judicial separation 12 between the mother and father, I find that the issue has already been decided by the District Education Officer while recommending the case of the petitioner for his compassionate appointment. Despite the fact that though there was no judicial order for separation, mother was deserted and living separately, in such circumstance, father being in government service cannot have any impact in the matters of petitioner’s compassionate appointment, as he was never looked after by his father and not a single farthing of his father’s income was utilized for his livelihood, since the family was not looked into by the father the death of the other should have been considered a ground for compassionate appointment of the petitioner. Prayer of the petitioner for quashing of the impugned order giving 13 reference of letter No. 2955 dated 22.6.2009 cannot be held illegal and quashed. This application is dismissed. However, the application for compassionate appointment of petitioner is directed to be considered as per Rule of Bihar Panchayat Primary Teacher (Appointment and Service Condition) Rules, 2006. (Mridula Mishra,J) A.Kumar