IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5612 of 2007 MD.MASHIR ALAM,S/O LATE MD. ISHA, R/O VILLAGE-SABALPUR, P.S.-MORKAHI, DISTRICT- KHAGARIA AT PRESENT POSTED AS ORDELY MANOHAR HIGH SCHOOL, BAIJNATHPUR POLICE STATION AND DISTRICT-SAHARSA. ………………………PETITIONER. Versus 1.THE STATE OF BIHAR. 2.DEPUTY SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA. 3.DISTRICT MAGISTRATE, SAHARSA. 4.DISTRICT EDUCATION OFFICER, SAHARSA. 5.DISTRICT SUPERINTENDENT OF EDUCATION, SAHARSA. …………………………RESPONDENTS. ----------- 02/ 01.04.2011 Heard counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application assailing his appointment on a class-IV post contrary to the recommendation of the District Compassionate Appointment Committee on a Class-III post including that of a teacher has been sought to be explained and justified by the respondents in their counter affidavit by taking a plea that the petitioner was an untrained person and therefore he could not have been appointed as a teacher, and was accordingly appointed on only a class-IV post vacant and available in the Office of District Superintendent of Education. Counsel for the petitioner would submit 2 that in a large number of cases, this Court has held that if a recommendation was made by the District Compassionate Appointment Committee for class-III post, such appointment should have been made only on class-III post and since, the Government had also issued executive instructions dated 01.07.2006, requiring appointment of untrained teachers on compassionate ground, the respondents ought to have appointed the petitioner as an untrained teacher and not against class-IV post. In the considered opinion of this Court, the circular dated 01.07.2006, cannot override the specific statutory rules under the proviso to Article-309 of the Constitution of India, which clearly lays down that appointment of teacher in Primary, Middle or High School can only be made, if a person is trained teacher. In presence of such statutory rules, no executive instruction can prevail irrespective of the fact that the same was issued by the Human Resources Development Department on 01.07.2006 for the post of Panchayat and/or Nagar Shikshak. Once this aspect becomes clear that the appointment of the petitioner was not 3 permissible on a post of teacher, this Court must held that the appointment of the petitioner on an existing vacant class-IV post was absolutely in keeping with the object of the compassionate appointment which requires immediate rehabilitation of the family of the deceased employee. In that view of the matter, appointment of the petitioner on class-IV post, which has also been accepted by the petitioner inasmuch he is also working against such post must be held to be justified on fact and in law. No other points having been pressed by the learned counsel for the petitioner, this writ application is devoid of any merit and is, accordingly, dismissed. Ranjan (Mihir Kumar Jha, J.)