IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2071 of 2007 1. RAKESH KUMAR, S/O LATE RANI KUMARI, R/O VILLAGE-KAZIBAGH, P.S.-ALAMGANJ, DISTRICT- PATNA. 2. RAJIV RANJAN KUMAR, S/O LATE MAGESHWAR PRASAD, VILLAGE-MORATALAB, P.S.-RAHUI, DISTRICT-NALANDA. 3. ROHIT KUMAR, S/O LATE RAJIV PRASAD, R/O VILLAGE-BINDAULI, P.S.-GAURICHAK, DISTRICT- PATNA. 4. MD. MUSTAFA AZAD, S/O LATE MD. KASIM, R/O VILLAGE-RAJAPUR MAINPURA, P.S.-PATLIPUTRA, DISTRICT-PATNA. 5. GUNJAN KUMAR, S/O LATE RAMJEE RAM, R/O VILLAGE-RASTRIYAGANJ, P.S.-PHULWARISHARIF, DISTRICT-PATNA. 6. PAWAN KUMAR, S/O LATE BASUDEO PRASAD, R/O VILLAGE-SARTHUS, P.S.-SAHJAHANDPUR, DISTRICT- PATNA. 7. DEEPAK KUMAR, S/O LATE RAM KRISHNA SAH, R/O VILLAGE-BHADUARA, P.S.-MASAURHI, DISTRICT-PATNA. 8. PANKAJ KUMAR, S/O LATE RAMANAND SHARMA, R/O VILLAGE-SALIMPUR, P.S.-BAKHTIARPUR, DISTRICT-PATNA. 9. RABINDRA KUMAR TANDON, S/O LATE JAI KUMAR PANDEY, R/O VILLAGE-MARIAWAN, P.S.-DATIYANA, DISTRICT-PATNA. 10.MANOJ KUMAR, S/O LATE RAM JANAM SINGH, R/O VILLAGE-ADHAPA, P.S.-JANIPUR, DISTRICT-PATNA. ………………PETITIONERS. Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER-CUM-SECRETARY, DEPARTMENT OF PRIMARY, SECONDARY AND ADULT EDUCATION (HUMAN RESOURCES DEVELOPMENT DEPARTMENT), GOVT. OF BIHAR, PATNA. 2. THE DIRECTOR, PRIMARY EDUCATION, DEPARTMENT OF PRIMARY, SECONDARY AND ADULT EDUCATION, GOVT. OF BIHAR, PATNA. 3. THE DEPUTY SECRETARY, DEPARTMENT OF PRIMARY, SECONDARY AND ADULT EDUCATION, GOVT. OF BIHAR, PATNA. 4. THE ASSISTANT DIRECTOR (PRIMARY EDUCATION), HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA. 5. THE CHAIRMAN-CUM-DISTRICT MAGISTRATE, DISTRICT COMPASSIONATE COMMITTEE, PATNA. 6. THE DISTRICT SUPERINTENDENT OF EDUCATION, PATNA. ……………RESPONDENTS. 2 For the Petitioner : M/S Vinod Kr. Kanth, Sr. Adv., R.N. Mukhopadhya, Alok, and Md. Nazir Ansari. For the Respondents: Mr.Tripurari Nath Ambasth, AC to SC-12. ----------- 7 15.03.2010 It is not disputed that the parents of all the ten petitioners died in harness. They were all working as Assistant Teachers in different schools under the control of the State Government. Upon their parents’ death, petitioners applied for their compassionate appointments. The applications of the petitioners were considered by the District Compassionate Committee in different meetings held on 3rd September 2002, 29th November 2002, 12th February 2003, 5th May 2003 and resolutions were passed to appoint them as Assistant Teachers in different schools. Inspite of the said resolutions, appointment letters were not issued to them. Accordingly, they moved this Court together in C.W.J.C. No. 14391 of 2004. The said writ application was disposed of by an order of this Court dated 6.4.2005, a copy whereof is annexed as Annexure-4 to the writ application. The learned Single Judge directed the respondents to give appointments to them 3 forthwith in terms of the recommendations of the Committee, i.e. appoint them as Assistant Teachers, within 7 days from the date of service of a copy of the order. In compliance to the said order, orders of appointment were issued on 28.4.2005 appointing the petitioners as Assistant Teachers in different Government schools. However, the respondents also moved in appeal against the said order of the learned Single Judge in LPA No. 697 of 2005. Their stand before the Appellate Court, as noticed in the order, was that National Council for Teachers Education (Determination of Minimum Qualification for recruitment of teachers in school) Regulation 2001 prescribed the minimum qualification as Intermediate along with diploma or certificate in basic teachers’ training of a duration of not less than 2 years as minimum eligibility for appointment on the post of Assistant Teacher. It was also contended on their behalf that Primary School Teachers Appointment Rules, 1991 was amended by Bihar Primary School Teachers’ Appointment Rules, 2003. It was also brought to the notice of the Division Bench that there was 4 a letter dated 17.11.2003 which completely prohibited appointment of Assistant Teacher on compassionate ground. It was also contended that the writ Court could not direct the respondents to appoint the petitioners on a particular post. It could only direct the respondents to consider the case of the petitioners for their appointment on compassionate ground on whatever post available for them. In view of this submission advanced on behalf of the respondents, the order under appeal was set aside. But the Appellate Court directed the respondents to consider the cases of the respondents for their appointment on ‘appropriate posts.’ With such directions the appeal was allowed by order dated 3.1.2006, a copy whereof is annexed as Annexure-3. Subsequent to the said direction of the Division Bench, the District Compassionate Committee again took up the matter of appointment of petitioners in its meeting dated 27.2.2006. In view of the order of the Division Bench, the District Compassionate Committee resolved that the District Education Officer and the District Superintendent of Education should 5 immediately act to appoint the petitioners on non-teaching class-III posts. To that extent the earlier resolution of the Compassionate Committee in respect of the petitioners was held to have been modified. However, this resolution of the District Compassionate Committee dated 27.02.2006 was acted upon by the respondents, by not appointing them against non-teaching class- III posts in the service of the Government, but by recommending for their appointment as Panchayat Teachers in different schools on fixed salary. The orders issued by the respondents in respect of the petitioners are annexed as Annexure-1 series. Petitioners immediately moved through instant writ application against such recommendations. Lest they may be accused of violating the orders of the authority, they joined the posts with protest during the pendency of the writ application. Learned senior counsel for the petitioners has submitted that the resolution of the District Compassionate Committee was for appointment of the petitioners under Government service on class-III posts. The earlier resolutions were modified only to the extent 6 that instead of teaching posts, they were to be given non-teaching posts. Therefore, the respondents were obliged to appoint the petitioners on a regular class-III post under the Government and not as a teacher in schools under the Panchayat. Counter affidavit and supplementary counter affidavit have been filed in this case. Learned counsel for the respondents has referred to Rule 10 of the Bihar Panchayat Primary Teachers (Employment and Service Conditions) Rules, 2006, which has been reiterated by a letter of the Government dated 22.06.2009, annexed as Annexure-A to the counter affidavit. He submits that as per Rule 10, the compassionate appointment of dependents of the deceased teachers or non-teaching employees had to be made against available posts of Panchayat Teachers and Block Teachers on the basis of the resolutions of the Committee. He submits that since the deceased parents of the petitioners were Assistant Teachers in schools, the cases of the petitioners could be considered for appointment as Panchayat Teachers only in terms of this Rule and, therefore, they have been 7 validly recommended for appointment as Panchayat Teachers. It may be noticed that the Bihar Panchayat Raj Act, 2006 was promulgated in 2006 and all the primary schools were put under the control of the respective Panchayats of the area by virtue of the provisions of the Act. Thereafter, the administrative control of the schools was transferred to the Panchayats and they did not remain under direct control of the State Government. For appointment in the schools Bihar Panchayat Primary Teachers (Employment and Service Conditions) Rules, 2006 were also framed which came into effect from 1.7.2006. These rules empowered the Panchayats to decide the matters of appointment and service conditions of Panchayat Teachers. Prior to it Primary schools were directly under the control of the Government. Therefore, in case of death of any employee of a school or of any office of the department in the District, the application of any dependent of the deceased employee for compassionate appointment was to be considered by the District Compassionate Appointment Committee. It is apparent from the records that 8 much prior to the coming in force of said Act and Rules, petitioners’ cases for appointment on compassionate ground were considered by the concerned District Compassionate Appointment Committee in 2002 and 2003. It had resolved at that very time to appoint the petitioners under Government Service as Assistant Teachers. In view of the judgment of the Division Bench, the said decision was modified by the District Compassionate Appointment Committee by its resolution dated 27.2.2006 resolving to recommend for their appointment against non- teaching class-III posts. The change of post from teaching to non-teaching was the only modification which was affected by this resolution of the Committee in reference to the earlier decision of the Committee in respect of the petitioners. This shows that entire process of decision for their appointment on compassionate ground was completed prior to the Act and Rules came into force. The decision of the Compassionate Committee was clearly to appoint the petitioners in Government Service on non-teaching class-III posts. It is obvious that this decision could not be affected or modified 9 by subsequent promulgation of the Act and the Rules and the petitioners could not be compelled to join as teachers in the schools under the control of the Panchayats on fixed salary instead of giving them appointment against non- teaching class-III posts under the Government. Learned senior counsel for the petitioners has drawn the attention of this Court to a letter of the Government dated 17.10.2008 addressed to all the Collectors-cum- Chairman of the District Compassionate Committee, a copy whereof is annexed as Annexure-13, to demonstrate that the posts in schools under the Panchayats were not under the control of the Government and, therefore, the District Compassionate Committee is not competent to make recommendation for appointment on compassionate ground in such schools. He has also referred to a judgment of a learned Single Judge of this Court dated 30.04.2009, a copy whereof is annexed as Annexure-15, to show that under similar circumstances this Court, noticing the said letter of the Government dated 17.10.2008, issued directions to appoint the petitioner of the case on an appropriate post 10 under the Government. In the circumstances, this Court finds that the petitioners’ grievances are genuine and as per the resolution of the Compassionate Committee dated 27.2.2006, they are entitled for their appointment in Government service on non- teaching class-III posts. This writ application is accordingly allowed. Since the petitioners have joined in the school as Assistant Teachers on protest in terms of the annexure-1 series, this Court does not feel appropriate to quash the said recommendation. However, it directs the respondents to shift the petitioners, within one month from the date of receipt/production of a copy of this order, and adjust them against any non-teaching class-III posts in any of the offices of the Government in the District, as may be available now. Since the petitioners had joined pursuant to the appointment letter issued to them between 2nd May to 5th May, 2005, after the orders of the learned Single Judge, they shall also be entitled for continuity of their service, so far as seniority and other service 11 conditions are concerned, except actual payment of differential of salary, which they may be found notionally entitled to. Arvind/ (J. N. Singh, J.)