IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.81 of 2010 1. THE STATE OF BIHAR. 2. THE COMMISSIONER-CUM-SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPTT., GOVT. OF BIHAR, PATNA 3. THE DIRECTOR OF PRIMARY EDUCATION, BIHAR, PATNA 4. THE DISTRICT MAGISTRATE-CUM-COLLECTOR NALANDA AT BIHAR SHARIF 5. THE DISTRICT SUPERINTENDENT OF EDUCATION, NALANDA AT BIHARSHARIF. … Appellants(respondents) Versus 1. CHANDRA BHUSHAN PRASAD S/O LATE RAMROOP PRASAD R/O VILL- CHAUR BIGHA, P.S. NALANDA, DISTT. NALANDA. 2. NEERAJ KUMAR SINGH S/O LATE ARVIND KUMAR R/O MOH- RAMCHANDRAPUR, NALANDA, COLONY, P.S. LAHERI, DISTT. NALANDA 3. RAKESH RANJAN S/O LATE SHREE CHARAN PRASAD R/O VILL- HASEPUR, P.S. EKANGARAI, DISTT. NALANDA 4. DHARMENDRA KUMAR S/O LATE SITARAM PASWAN R/O VILL- ATRAMAHAK, P.S. NOORSARAI, DISTT. NALANDA ..Respondents(petitioners) With LPA No.127 of 2010 1. THE STATE OF BIHAR 2. THE COMMISSIONER-CUM-SECRETARY HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 3. THE DIRECTOR OF PRIMARY EDUCATION, BIHAR, PATNA 4. THE DISTRICT MAGISTRATE-CUM-COLLECTOR NALANDA AT BIHARSHARIF. 5. THE DISTRICT SUPERINTENDENT OF EDUCATION NALANDA AT BIHARSARIF. Versus 1. MANOJ PRAKASH CHAURASIA S/O LATE BALESHWAR PRASAD R/O MOHALLAH- BANAULIA, P.S.- BIHARSARIF, DISTT.- NALANDA. 2. SANTOSH KUMAR S/O JAGDISH PRASAD R/O VILL.- OKNAWAN, P.S.- DEEP NAGAR, DISTT.- NALANDA 3. AMRENDRA KUMAR S/O LATE RAM CHANDRA PRASAD SINGH R/O VILL.- MAIRA, P.S.- KARTI SARAI, DISTT.- NALANDA 4. SUNIL KUMAR AMBASTHA S/O SRI VIDYANAND PRASAD R/O MOHALLA- HAJIPUR, P.S.- BIHAR, DISTT.- NALANDA 2 5. PRADEEP KUMAR S/O LATE NATHO PRASAD R/O VILL.- RANI SARAI, P.S.- GIRIYAK, DISTT.- NALANDA 6. FANISHWAR NATH PANDEY S/O LATE JAGARNATH PANDEY R/O VILL.- TINA, P.S.- CHANDI, DISTT.- NALANDA 7. PRAVEEN KUMAR S/O LATE VIJAY PRASAD R/O VILL.- HASANPUR, P.S.- EKANGAR SARAI, DISTT.- NALANDA ----------- For the Appellants/State : Mr. R. Tiwari, A. C. to AAG-8 For the Respondent : Mr. Ritesh Kumar, Adv. : Mr. Pramod Kumar, Adv. -------- Present : HON'BLE THE CHIFE JUSTICE HON'BLE MIHIR KUMAR JHA, J. As per Mihir Kumar Jha, J. 3 12.03.2010 I. A. No. 334 of 2010 and I. A. No. 599 of 2010 1. Having heard learned counsel for the parties as also in the light of the averments made in the aforementioned applications, the delay 134 days and 128 days in filing of L.P. A. No. 81 of 2010 and L.P.A. No. 127 of 2010, respectively, in both the appeals is hereby condoned. 2. I. A. No. 334 of 2010 and I. A. No. 599 of 2010 are accordingly allowed. L. P. A No. 81 of 2010 and L. P. A. No. 127 of 2010 3. As we have condoned the delay in filing of both the aforementioned appeals, we are also inclined to dispose of both the appeals on merit and with this view we 3 also with the consent of the parties, heard the matter at length at the admission stage itself. 4. In both these appeals, the appellants, State of Bihar and its officials are aggrieved by a common order dated 5.2.2009 disposing of two writ petitions, CWJC No. 7938 of 2007 and CWJC No. 8014 of 2007 directing the District Magistrate Nalanda, Biharsharif and District Superintendent of Education, Nalanda, Biharsharif to make payment of arrears of salary and current salary to the respondents- writ petitioners in the prescribed pay-scale of post of teachers in primary school of Rs. 3050-4590 on the basis that recommendation was made by the District Compassionate Appointment Committee for their appointment on Class-III posts. 5. Assailing the aforementioned order of learned Single Judge, counsel for the appellants has primarily laid stress on the aspect that respondents-writ petitioners seeking appointment on compassionate ground could not claim appointment against a particular post or in a particular pay-scale. In this respect, it has been sought to be explained that all the respondents-writ petitioners had come out with a claim for appointment on compassionate 4 ground on account of death of their bread earner employees dying in harness and as such if the respondents- State had ultimately chosen to appoint them on the existing vacant post by giving fixed salary of the posts of teachers as were vacant and existing on the date of their appointment and that too after obtaining their consent, they could not later be allowed to claim salary for the higher posts of teachers in the prescribed pay scale against which they were never appointed and that too after accepting their such appointment and also joining their respective posts. Learned counsel for the appellants in this regard had also submitted that even though the District Compassionate Appointment Committee in its meeting held on 24.9.2003 and 29.7.2005 had made recommendation for appointment of respondents-writ petitioners on any vacant class-III posts, the same by itself could not have been presumed to be a binding order for their appointment on a particular post or in a particular pay-scale. 6. Learned Counsel has also relied on communications showing that the District Superintendent of Education (D.S.E.), Nalanda being appointing authority 5 having found that there was no vacancy on any class-III posts had also informed the Secretary to the District Compassionate Appointment Committee, Nalanda, Biharsarif that the appointment of respondents-writ petitioners was not possible on any vacant Class-III posts and as such the subsequent conduct of the respondent- writ-petitioners accepting the offer for appointment on 4.10.2006 in the letter of District Superintendent of Education, Nalanda in its memo No. 3660 dated 4.10.2006 on a post of teachers in terms of Bihar Nagar Nikaya Prarambhik Sikshak (Niyojan Awam Seva Sarta) Niyamawali, 2006 hereinafter referred to as 2006 Rules could be made only on a fixed pay and as such if they were willing to be appointed on compassionate ground against such post on fixed pay they should give their consent in writing, and the respondents-writ petitioners in response to the aforementioned letter of D.S.E. dated 4.10.2006 having consented and accepted such appointment on fixed pay could not later on resile and change their stand by claiming salary on a higher and a different post of teacher with a prescribed pay-scale. 7. Counsel for the respondents-writ petitioners, on 6 the other hand, while supporting the impugned order passed by learned single Judge had taken a stand that since such recommendation in favour of respondent-writ petitioners for their appointment on compassionate ground was made by the District Compassionate Appointment Committee in the meeting held on 24.9.2003 and 29.7.2005, they could not be subjected to either vacancy or the post of teachers in fixed pay scale under 2006 Rules and it was further explained that there were vacancies on the post of teachers with prescribed pay scale in the year 2003-05 but the District Superintendent of Education did not choose to make appointment of the respondents-writ petitioners and therefore "beggars being not choosers" had been left no option but to accept their appointment on the fixed pay of the post of Nagar Shikshak by giving written consent to the offer made by the District Superintendent of Education in its Memo No. 3660 dated 4.10.2006. Counsel for the respondent-writ petitioners in this context has also relied upon an order of this Court dated 8.2.2010 in L.P.A. No. 1017 of 2009 which according to him was a similar case as with regard to grant of prescribed pay-scale to teachers initially appointed on fixed salary as Nagar 7 Shikshak which was allowed by learned single Judge and also affirmed in appeal by this Court. 8. In the opinion of this Court, the core question would be as to what rights the respondents-writ petitioners were seeking to enforce in the writ petitions after getting their compassionate appointment. Both the writ petitions were infact filed for a direction to the appellants- respondents in the writ petition for payment of their salary in the pay scale of Rs. 3050-4590 by treating them to have been appointed on such posts of teachers in the aforesaid pay scale. It is however not in doubt that appointment of all the writ petitioners were made in January 2007 on compassionate ground on the posts of Prakhand/Nagar Shikshak under 2006 Rules on fixed pay and not in any pay scale. The present scheme and policy of compassionate appointment of the Government of Bihar clearly envisages such appointment either against vacant and sanctioned Class III or Class IV posts. Therefore, when the case of the respondents-writ petitioners was recommended by the District Compassionate Appointment Committee for their appointment on a class III posts for some in the year 2003 and others in the year 2005 they had 8 a limited right of being appointed on compassionate ground if there was a vacancy on a class III posts. The stand of the appellants either in the counter-affidavit or in this appeal is quite specific and clear that there was no vacancy on class III posts in the establishment of District Superintendent of Education, Nalanda to whom such recommendation was sent for appointing respondent-writ petitioners. Thus, the mere recommendation for appointment by itself could not have clothed any right as it is well settled that even for appointment on a compassionate ground there has to be existing sanctioned vacant posts. This Court in fact would find that it was in this situation that the D.S.E., Nalanda at Biharsharif on receipt of the recommendation of District Compassionate Appointment Committee had communicated to the Deputy Collector-cum-Secretary of the Committee that there was no vacant sanctioned class-III posts within his jurisdiction and as such the matter should be placed again before the District Compassionate Appointment Committee for reconsidering the matter. There is also a direct proof of there being no vacancy in the application filed by respondent-writ petitioner Manoj Prakash dated 9 30.12.2005 that even though his case was recommended after the death of his mother on 30.6.2004 in the meeting held by District Compassionate Appointment Committee on a class III post but on account of there being no vacancy under the District Superintendent of Education, Nalanda or District Education Officer, Nalanda he could not be appointed. He accordingly, had represented before the Collector of the District that his appointment should be made on any Class-III posts of Collectorate or a post of teacher. This Court therefore has nothing before it to disbelieve the stand of the appellants that even after the recommendation of the District Compassionate Appointment Committee in the case of respondents-writ petitioners, some in the year 2003 and others in the year 2005 their appointment on a class III posts in the Education Department where their parents were serving was not possible due to want of vacancies. 9. In such a situation, if the appellants had two options namely either to straightway deny compassionate appointment to the respondents-writ petitioners or to offer any other vacant posts ensuring some means of sustenance to the dependant of the deceased family members, the 10 recourse to the latter by the appellants cannot be faulted. It is in this background that the bona fide of the appellants by offering the post of teachers in terms of the scheme for appointment of Nagar Shikshka/Prakhand Shikshak under 2006 Rules has to be appreciated. It has to be noted that this problem for compassionate appointment to the persons like respondents-writ petitioners was being faced all over the State of Bihar by the field officers of Education Department at the District Level and therefore the Secretary, Human Resourced Development Department Directorate of Education vide resolution no. 1078 dated 1.7.2006 while removing the earlier ban imposed on appointment on compassionate ground in terms of earlier departmental orders dated 17.11.2003 and 16.4.2005 had clarified that such dependants of the deceased employee who were holding the qualification of intermediate or above but were not having qualification of Teachers Training Course could be appointed on the post of teachers under 2006 Rules by way of compassionate ground for a maximum period of five years in which they had to complete such teachers training. In fact in terms of the Government decision dated 1.7.2006 any appointment 11 made on Class III or Class IV posts earlier was also sought to be reviewed. Therefore, the action of respondents even in offering post on a fixed pay of teacher under 2006 Rules cannot be questioned by the respondents- writ petitioners as they must keep in mind that they were not seeking appointment on the post of teacher on the basis any selection undertaken by adhering to the principles observing Article 14 and 16 of the Constitution and/or the relevant provision of Recruitment Rules framed under proviso to Article 309 of the Constitution by competing amongst the eligible candidates on an earlier post advertised under the prevalent prescribed Recruitment Rules regarding appointment on the post of Teacher prior to enforcement of 2006 Rules meant for appointment Shikshak/ Nagar Shikshak/ Panchayat Shikshak. This Court therefore would thus find no error even in that part of the offer given by the respondent-District Superintendent of Education. 10. This Court however also must take note of that part of submission of learned counsel for the respondents-writ petitioners that respondents- writ petitioners by virtue of their recommendations in their 12 favour by the District Compassionate Appointment Committee dated 24.9.2003 and 29.7.2005 had a subsisting right for being appointed on a post of teachers in a prescribed pay-scale before the advent of 2006 Rules regarding appointment of teachers in the prescribed pay scale. Such submission cannot be accepted for more than one reason. Appointment on compassionate ground can in the first place be not claimed by anyone as a matter of right, merely based on recommendation. Moreover in such recommendation all that was mentioned by the Committee headed by the Collector of the district that D.S.E. should consider the case for appointment on compassionate ground on any class III posts having the maximum pay-scale of either Rs. 2550-3200 or Rs. 3050- 4950. Such recommendation at the level of District Collector who was never aware of the vacancies in the office of D.S.E., Nalanda could not and in fact did not cloth the respondents- writ petitioners with any right for being appointed on the post of teachers in a prescribed pay-scale specially when there was actually no vacant Class-III posts and there was also a ban on appointment on the post of teachers on compassionate ground in terms of 13 the order of Human Resources Development Department as contained in letter No. 2039 dated 17.11.2003 and letter No. 626 dated 16.4.2005. 11. This Court therefore would not in a position to approve the view of the learned single Judge that the compassionate appointment by itself would mean that since the employees holding the Class-III/IV posts had died and as such on account of such their death there would an automatic resultant vacancy which had to be filled up by his or her dependant by way of compassionate appointment. Such concept of hereditary right in the matter of compassionate appointment is neither factually possible nor legally sustainable in the backdrop of the fact that such vacancies has to be caused on a substantive post at the lowest rank of the cadre and therefore the deceased employee having occupied any post in the department or establishment, the dependant of the deceased employee could not claim that post by way of resultant vacancy on account of death which would virtually establish the concept of inheritance unknown in the matter of compassionate appointment. This Court is also conscious that the earlier view taken by the Apex 14 Court in the case of Shushma Gosai Vs. Union of India reported in AIR 1989 S.C. 1976 of creating supernumerary post for compassionate appointment has since been deprecated by the Apex Court itself in a large number of subsequent cases including in the case of Hindusthan Aeronautics Ltd. Vs. A. Rathika Thirumalai reported in AIR 1997 S.C. 123 as also in the case of Himachal Pradesh Road Transport Corporation Vs. Dilip Kumar reported in AIR 1996 S.C. 2226 that it not open to the Court/Tribunal to direct appointment to any person to a post or direct the authority concerned to create a supernumerary post and then appoint a person to that post. The existence of a vacant sanctioned post infact is a sine qua non for appointment on compassionate ground as has been held by the Apex Court in the case of Abhishek Kumar Vs. State of Haryana reported in (2006) 12 S.C.C. 44. 12. This court is also not in a position to apply principles of service jurisprudence with regard to enforcement of a rule and the selection process being taken place prior to enforcement/amendment in such rules as laid down by the Apex Court in the case of P. 15 Mahendran Vs. State of Karnataka reported in (1990) S.C.C. 411 in the cases arising out of compassionate appointment. Such concept could be made applicable only where selection process has been undertaken by way of advertisement, examination, interview and preparation of panel for an earlier notified vacancies in terms of earlier rules which however cannot be made applicable for compassionate appointment for which there is a special provision by way a scheme. Reference in this connection may be made to a long line of cases of Apex Court including that of State of Haryana Vs. Chandra Narain Verma reported in (1994) 2 S.C.C. 752 and State of U.P. Vs. Paras Nath reported in (1998) 2 S.C.C. 412 wherein it has been consistently held that compassionate appointment cannot be made de hors the statutory rules for appointment by way of direct recruitment and has to be always confined to the four corners of the policy and the guidelines for appointment on compassionate grounds as was held by the Apex Court in the case of State of Bihar Vs. Samsuz Zoha reported in AIR 1996 S.C. 1961 and again the case of State Bank of India Vs. Samir Singh reported in (2007) 4 S.C.C. 778. In the case of Samsuz 16 Zoha case (supra) the Apex Court infact had approved the policy decision and the scheme of the State Government of Bihar laying down compassionate appointment only on Class-IV posts only. 13. This Court is also not impressed with the submission of the learned counsel for the Respondent writ petitioners that it was under coercion that the writ petitioners had to accept the appointment on the post of teachers on a fixed pay due to the overwhelming bargaining power of the State as a defence for justifying the consent given by the Respondent writ petitioners to their appointment on the post of teachers under 2006 Rules on a fixed pay. Such concept can infact be not made enforceable in the case of the compassionate appointment of the Respondent writ petitioners inasmuch as if of the two options namely making no appointment at all on account of lack of vacancies or offering any post of teacher in the fixed salary, the latter was chosen by the authority and also accepted unconditionally by respondents- writ petitioners, that would only go to show that the appellants were genuinely trying to provide a source of livelihood to the dependant family members of 17 the deceased employees through the appointment of respondent-writ petitioners on compassionate ground. Infact somewhat in a similar situation the Apex Court in the case of I.G. (Karmik) and others Vs. Prahlad Mam Tripathi reported in (2007) 6 S.C.C. 162 had held that : - "...........furthermore the Respondent accepted the said post without demur whatsoever. He, therefore, upon obtaining appointment in a lower post could not have been permitted to turn around and contend that he was entitled for a higher post.............." 14. The reliance placed by learned counsel for the respondents-writ petitioners on an order of this court dated 8.2.2010 in L.P.A. No. 1017 of 2009 ( State of Bihar vs. Pramila Kumari & Ors.) is also misconceived inasmuch as in that case the Respondent writ petitioners were the retrenched employee of non-formal education scheme for whom not only a special advertisement was issued in terms of Bihar Prathmic Niyukti Niyamawali and Sansodhan Niyamawali, 1993 as amended in 2001 but a competitive examination was also conducted by Bihar Public Service Commission on 14.12.2003 and after the 18 B.P.S.C. had made recommendation on 5.3.2004, such recommendation were partly acted in some of the districts but were not implemented in Nalanda District due to administrative reasons. To such persons when the appointment was given on the post of Prakhand Shikshak/ Nagar Shikshak in terms of 2006 rules in fixed pay it was held by this Court that they could not have been subjected to the subsequent 2006 as the terms and conditions laid in as their advertisement was for a sanctioned post of a teacher in a prescribed pay scale under 1993 rules. In the opinion of this court, the judgement in the case of Parmila Kumari (supra) therefore is absolutely distinguishable on facts and have no application in the present scenario relating to appointment on compassionate ground. 15. We, however, are impressed with one submission of learned counsel for the respondents-writ petitioners that while offering compassionate appointment to the respondents-writ petitioners their tenure of service has to be secured so as to provide them with some permanent source of income for sustenance of the dependent family members of the employee, dying in harness. Therefore, we would clarify that in terms of 19 appointment letter given to them on the post of teachers in fixed pay-scale they would continue in service and of course if they would enhance their qualification and become trained, they would also be eligible for their absorption on the posts of teachers on whatever terms and conditions of service is extended to similarly situated persons under 2006 Rules. 16. We also must take note of the submission of learned counsel for the respondents-writ petitioners that the order of learned single Judge which had been stayed by this Court while issuing notice by order dated 14.1.2010 had already stood implemented by granting them the prescribed pay-scale in terms of the direction of learned single Judge and therefore they may not be subjected to any recovery of excess amount already paid to them in view of the aforesaid order. Considering the fact that the respondents- writ petitioners are the persons who have been appointed on compassionate ground and have to support their family, this Court would direct that if any benefit of payment of salary in terms of the impugned order has already been extended to any one or all the respondents- writ petitioners, the same would not be 20 recovered and/or adjusted but from the month of March 2010 onwards they shall be paid salary on the fixed pay in terms of their letter of appointment. 17. In the result, the order of learned single Judge is hereby set aside and both the appeals are accordingly disposed of with the aforementioned observations and directions. There would be, however, no order as to costs. Patna High Court Dated the 12th March 2010 A.F.R./kanchan (Dipak Misra, CJ.) (Mihir Kumar Jha, J.)