IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12177 of 2009 1. SADIQUE RAZA 2. SUSHIL KUMAR MISHRA 3. MRITUNJAY KUMAR 4. RAKESH NANDAN------ PETITIONERS. Versus THE STATE OF BIHAR & ORS . ----------- For the petitioners:- Mr. Rajendra Prasad Singh, Sr. Advocate & Mr. Rajiv Kr. Singh,Advocate For Respondents:- Mr. Prashant Choudhary,Advocate 2 27.11.2009 Heard Counsel for the petitioners and the counsel appearing for the State. All four petitioners are the dependents and legal heirs of Assistant Teachers who died in harness. Father of petitioner no.1 died on 1.1.2004. Father of petitioner no.2 died on 5.11.2002. Father of petitioner no.3 died on 26.11.1997 and father of petitioner no.4 died on 27.12.2003. Petitioner no.3 was minor at the time of his father’s death. After gaining majority he applied for his compassionate appointment, on 22.2.2002, within five years of the death of his father. Cases of all these petitioners were considered by the District Compassionate Appointment Committee’s meeting dated 13.12.2004 and recommendation was made for their appointments on class III posts, considering their educational qualification. On perusal of the recommendation of the District Compassionate Committee, it transpires that 2 though petitioners have applied for their compassionate appointment in the years 2002, 2003 and 2004 but recommendation could not be made earlier as no vacancies were available on the post of teachers. Finally, recommendations were made for their compassionate appointment against class III posts. The grievance of the petitioners is that though recommendations were made for their compassionate appointment against class III posts of Clerk or any other posts, in the year 2004 itself but no appointment letters were issued to them. Finally appointment letters were issued to the petitioners on 30.3.2007 but not on Class III posts with regular pay scale, but on the post of Prakhand Teachers, in different Schools, on a fixed salary. Petitioners’ grievance is that once recommendation had been made by the Compassionate Committee for their appointments on Class III posts, much prior to 1.7.2006 i.e. the date when Primary Panchayat Teachers (Appointment and service Conditions) Rules 2006 came into effect, appointment letters could not have been issued for their appointments on the post of Prakhand Teachers on a fixed salary. The appointment letters had been issued for their appointments on 3 contractual basis, on a fixed salary, which is completely in contradiction of the recommendation made by the District Compassionate Committee. Petitioners’ fathers were working on the post of Assistant Teachers in different Schools and died in harness. They were Government servants, working on regular pay scales, with all consequential benefits. After their death, the District compassionate Committee, competent to consider cases of compassionate appointment of Government employees, made recommendation for petitioners’ appointment on class III posts. At the relevant time, when the father of the petitioners died and the District Compassionate Committee had made recommendation for petitioners’ appointment, Bihar Primary Teachers (Appointment and Service Conditions) Rules, 2006 had not been enacted. Petitioners fathers, were governed by the service condition rules, applicable in the case of Government Servant. So far 2006 Bihar Primary Teachers Rules are concerned, it came into effect on 1.7.2006 and it has no retrospective application. In the case of petitioners the Regional Deputy Director of Education, Muzaffarpur has alternatively directed to issue appointment letters in their favour, for the post of Prakhand Teachers and 4 the District Superintendent of Education, Sitamarhi issued appointment letters, compelling from to join on the post of Prakhand teachers on a contract basis in a fixed salary, though there was no such recommendation of the District Compassionate Appointment Committee. Petitioners, just to save their families from starvation, have joined on the post of Prakhand Teachers. Rule 10 of the Bihar Primary Teachers (Appointment & Service Condition) Rules, 2006 deals with compassionate appointment and there it is provided that in case of death of a teacher and non- teaching employee, in harness, their legal heirs and dependents will be appointed against the post of Panchayat Teacher/Prakhand Teacher. Primary teacher has been defined under Rule 2 Sub-Rule (IV), as one who has been appointed by the Appointment Committee constituted under 2006 Rules. Petitioners’ fathers were not ‘teachers’ as defined under Rule 2 (IV) of the 2006 Rules, as such Rule 10 has no application in the case petitioners appointment on compassionate ground. In petitioners’ case, recommendation had been made in 2004 and at that time there was no such rule as Bihar Panchayat Primary Teachers (Appointment and Service 5 Condition) Rules in existence.. The Respondent no.2 Principal Secretary, Human Resources Development Department, Government of Bihar, Patna is directed to consider the case of the petitioners. He should also consider cases of all similarly situated persons and will issue an order, distinguishing cases of compassionate appointment of dependents of Teachers appointed under 2006 Rules and Teachers appointed earlier and died in harness. Petitioners and the similarly situated persons, whose fathers were not teachers appointed under 2006 Rules, their legal heirs shall not be appointed on the post of Prakhand/ Panchayat Teachers in a fixed scale. In case of recommendation of the compassionate Committee in their favour for appointment on Class III & IV posts, they must be appointed on a regular post in a regular pay scale with all other benefits, for which the Government servant is entitled for. The District Superintendent of Education, Sitamarhi is also directed either to issue fresh appointment letters in favour of the petitioners on any Class III posts, having regular pay scale, with all benefits attached to the posts of Class III employees, or allow pay scale of class III employees to the petitioners. Order in this regard must be issued 6 within twelve weeks from the date of communication/presentation of a copy of this order. (Mridula Mishra,J.) A.Kumar