IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1869 of 2006 RAJ KISHORE PRASAD YADAV s/o Sri Bhola Prasad Yadav, resident of Kandhwara, P.O. and P.S. Siwan, District Siwan, at present posted as Peon in DAV High School, Siwan. ……….Petitioner Versus 1. THE STATE OF BIHAR. 2. The Director, Secondary Education, Govt. of Bihar, Budh Marg, Patna. 3. The District Education Officer, Siwan. ……..Respondents. ----------- For the Petitioner : Mr.Tej Bahadur Singh,Sr. Adv. and Mr.Brisketu Sharan Pandey. For the respondents: A.C. to S.C.1 4 17.5.2011 The petitioner is a matriculate and on 27.5.1992 he was appointed by the Head Master of D.A.V. High School,Siwan as Contigent Menial (Akasmik Bhritya) on honorarium of Rs. 100/- per month. Upon this appointment being made, it was sent to the District Superintendent of Education, Siwan, for approval , who duly approved the same on 18.6.1992. The petitioner worked as such and subsequently one Laji Choudhary, Peon, retired. In his place, considering that the petitioner had been working for over seven years on Rs. 100/- per month was duly qualified being a Peon. The petitioner was appointed by the Principal on the sanctioned vacant post of peon aforesaid in the pay scale of Rs. 775-1025/-.While making said appointment , the Head Master referred to Circular no. 307, dated 12.2.1981, which authorizes the Head Master to make such appointment. The petitioner thus started working. Having been appointed in the State Government scale, his services were 2 requisitioned for election purposes by the State showing him to be an employee of the School concerned. Having been so employed and then having received no remuneration, the petitioner approached this Court by filing this writ petition for payment of his remuneration since the date of his appointment. A counter affidavit has been filed. In the counter affidavit it is not disputed that the petitioner was appointed in the manner, as indicated above or that the petitioner has been working as a Peon in the School. It is also not disputed that the post was vacant and sanctioned. The only point is that the Head Master did not have authority to make appointment of Class IV employee. In this connection State has referred to the letter no. 403, dated 21.7.1981 of the State Government, which specifically provides that the Head Master has no jurisdiction to make any appointment to Class IV post. State has further referred to letter no. 16441, dated 3.12.1980, which obliges creation of panel and appointment according to the panel to Class IV post in taken over School. It is thus submitted that the appointment of the petitioner is contrary to these two Circulars. The appointment being void, no payment can be made. Mr. Tej Bahadur Singh, learned Senior Counsel appearing in support of the writ petition first submits that so far as two Circulars are concerned, they are wholly non applicable because with effect from 1983, the State Government framed and enforced specific statutory Rule being Bihar Nationalized Secondary School (Service Condition) Rules, 1983 in which 3 specific provision with regard to appointment of Class IV employee has been made in Rule 8(2). Once statutory rules are framed then all executive instructions would cease to operate. He then refers, in this regard, a reference to letter no. 16441 of 3.12.1980. He further submits that in view of Division Bench judgment in the case of State of Bihar & ors –v- Dinesh Thakur and analogous cases being LPA No. 1492 of 2009, this Court has clearly held that the said Circular to be a dead letter. It was never acted upon. The opinion of the Court is to be found in para 18 and is quoted hereunder : “ 18. In the opinion of this Court, the two Circulars dated 3.12.1980 having been not acted upon at any point of time in Education Department, so far it relates to the appointment of Class III and Class IV post in the High School/ Project School, must be taken to have become dead letter because of its long disuse, which in the legal parlance is also known as desuetude.” He thus submits that now to appointment Class IV persons subject to his qualification being there. He secondly submits that even though the petitioner will not be entitled to salary in the pay scale aforesaid, there being no dispute that he was appointed. He discharged his duty. State cannot turn around and say that for any reason that the appointment was bad and therefore, it is not liable to pay. He submits that having taken work and having taken advantage of petitioner’s services, State cannot refuse to compensate the petitioner if not paid his salary. What he demanded compensation for the work done even though illegal appointed, that cannot be denied. 4 Having considered the matter, in my view, the writ petition must succeed on both counts. Firstly, in view of Division Bench judgment and in view of the statutory rule having came enforce, earlier Circulars have no application. Rules conferred the authority on the Head Master to make appointment in respect of Class IV post. The Circular dated 3.12.1980 having been held to be dead letter, nothing remains to restrict the authority on the Head Master in terms of Rule 8(2) of 1983 rules. The appointment, as made, was valid and that being so, the petitioner would be entitled to full remuneration. Even otherwise there being no denial that the petitioner has discharged his duty as a Peon. The State having benefited from his services, it cannot deny just and reasonable compensation for the services availed by him. The just and fair compensation what State would otherwise fix to a person regularly appointed i.e. the pay scale. The net result is that the petitioner is entitled to full remuneration from the date of his appointment till date. With the aforesaid observation and direction, the writ petitioner is allowed. - Singh ( Navaniti Prasad Singh, J.)