IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8014 of 2007 1. MANOJ PRAKASH CHOURASIA, son of Lae Baleshwar Prasad, resident of Mohalla- Banoulia, P.S. Bihar Sharif, Dikstrict- Nalanda 2. Santosh Kumar, sonf of Jagdish Prasad, resident of village-Oknawan, P.S. Deepnagar, District- Nalanda 3. Amrendra Kumar, son of Late Ramchandra Prasad Singh, resident of village-Maira, P.S. Katrisarai, District- Nalanda 4. Sunil Kumar Ambastha, son of Sri Vidyanand Prasad, resident of Mohalla-Hajipur, P.S. Bihar, District- Nalanda 5. Pradeep Kumar son of Late Natho Prasad, resident of village- Rani Sarai, P.S. Giriyak, District,- Nalanda 6. Fanishwar Nath Pandey, son of Late Jagarnath Pandey, resident of village-Tina, P.S. Chandi, District- Nalanda. 7. Praveen Kumar son of Late Vijay Prasad, resident of village- Hasanpur, P.S. Ekangarsarai, District-Nalanda. ……………………………..Petitioners -With- CWJC No.7938 of 2007 1. CHANDRA BHUSHAN PRASAD 2. Neeraj Kumar Singh, son of Late Arvind Kumar, resident of Mohalla-Ramchandrapur, Nalanda Colony, P.S. Laheri, District-Nalanda 3. Rakesh Ranjan, son of Late Sheo Charan Prasad, resident of village-Hasepur, P.S. Ekangarsarai, District-Nalanda 4. Dharmendra Kumar, son of Late Sitaram Paswan, resident of village-Atramchak, P.S.Noorsarai, District-Nalanda Versus 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 Bihar Sharif 5. The District Superintendent of Education, Nalanda at Bihar Sharif ……Respondents (in both cases) 4. 05.02.2009 Heard the counsel for the petitioners and the State. Prayer of the petitioners in both these writ applications, is for a direction to the respondent- District Superintendent of Education, Nalanda to pay them salary in the pay scale of Rs 3050-4590/- as their names were recommended for being appointed as assistant teachers by the Compassionate Committee in this pay scale. Further prayer is - 2 - to make payment of arrears of salary and to make payment of current salary also in the pay scale they were appointed. All these petitioners were recommended for their appointment on Compassionate ground by the District Compassionate Committee in its meeting held on 24/9/03 & 29/7/05. The Compassionate Committee meeting was held under the Chairmanship of the District Magistrate-cum- Collector, Nalanda, Bihar Sharif. The recommendation of the Compassionate Committee has been annexed with the writ applications. This shows that recommendation for their appointment was made in the revised pay scale of Rs 3050- 4590/- Petitioners’ case is that in spite of the recommendation of their appointment in the primary school as assistant teachers, prior to the Panchayat primary teachers’ appointment and service condition Rule, 2006 came into force. The appointment letters were not being issued. Subsequently, the appointment letters were issued in the year, 2007 and the petitioners started serving as assistant teachers in their respective schools. But to their surprise, in appointment letters, it was mentioned that they will be governed by 2006 Rules and in stead of their salary in the fixed pay scale , they will be paid salary on contractual basis. Counter affidavit has been filed by the respondents where it is not denied that the decision was taken by the District - 3 - Compassionate Committee to appoint them but it is stated that when the recommendation of the District Compassionate Committee was sent to the District Education Officer, Nalanda,. vide letter No. 22 dated 10.01.2006, he informed that no vacancies are available in his jurisdiction and appointment of petitioners is not possible. In the meantime, new Rule for appointment i.e. 2006 Rule was published and the petitioners who are legal heirs of the teachers were asked whether they are desirous for getting employed on consolidated pay as Prakhand Teachers/village teachers/Nagar teachers. In response to this letter, the petitioners had given their consent in writing and accordingly, they have been appointed as assistant teachers on contract basis. Strange stand has been taken by the respondents in the counter affidavit. The compassionate appointment itself means that the employee holding the post has died. In case of such death, automatically, there occurs vacancy. If recommendation had been made for compassionate appointment, this plea could never have been taken that there are no vacancies available for appointment of legal heirs of the employee who died in harness. Recommendation in favour of the petitioners was made much before 2006 Rule for appointment of Panchayat/Primary/Prakhand teachers came into force. The petitioners should not have been compelled by the respondents to give their option for being appointed on - 4 - contract basis under 2006 Rules as their appointment was not made following procedure as provided for appointment under 2006 Rules. Appointment of the petitioners was on the compassionate ground. Recommendation was made in their favour for being appointed as assistant teachers on a given scale. They are entitled for pay scale for which recommendation was made by the committee. Accordingly, the District Magistrate, Nalanda, Bihar Sharif and the District Superintendent of Education, Nalanda, Bihar Sharif are directed to make payment of arrears of salary to the petitioners for which they are entitled on account of non- payment of salary in the given scale for which the recommendation was made by the Compassionate Committee. The respondents are further directed to make payment of current salary in that very scale as recommended by the Compassionate Committee. All arrears must be paid to the petitioner within three weeks from the date of production/communication of the order. So far current salary is concerned; it will start from the very month the order is produced before the respondent. This application is allowed. AKV/ (Mridula Mishra,J.)