STATE OF BIHAR AND ORS. versus DILIP KUMAR AND ANR
[2019] 8 S.C.R. 1180, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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[2019] 8 S.C.R.
STATE OF BIHAR AND ORS.
v.
DILIP KUMAR AND ANR
(Civil Appeal No. 5205 of 2019)
JULY 18, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
INDIRA BANERJEE, JJ.]
Bihar Municipal Body Elementary Teachers (Employment and
Service Conditions) Rules, 2006: r. 10 – Appointment on
compassionate ground – On facts, respondents granted
compassionate appointment on the post of Nagar Shikshak in terms
of r. 10 – Thereafter, issuance of instructions by the State
Government that posts of Panchayat Teachers and Block Teachers
not borne on the service of the Government, thus not within the
jurisdiction of the Compassionate Appointment Committee to
recommend appointments to those posts – Writ petition by
respondents seeking mandamus for their appointment on a
compassionate basis to posts under the control of the State
Government – Allowed by the Single Judge of the High Court –
Subsequently, issuance of instructions by the State Government that
the Committee could make compassionate appointments to the posts
of panchayat teachers/block teachers/town teachers – Division
Bench upheld the order of the Single Judge – On appeal, held:
High Court erred in directing the State Government to appoint the
respondents in its regular service despite the fact that their
appointments were made after the 2006 Rules were brought into
force – Their case would be governed by the 2006 Rules –
Respondents having accepted their appointments as Nagar
Shikshaks, it was
not open to them to assert, that they should be
appointed in the service of the State Government – Also, no executive
instruction could have superseded the Rules – Thus, the order of
the High Court set aside, however, liberty granted to respondents
to approach the State Government for suitable relief.
Allowing the appeal, the Court
HELD: 1.1 With the enforcement of the Bihar Municipal
Body Elementary Teachers (Employment and Service Conditions)
Rules, 2006, Rule 10 governs the appointment of Nagar
   [2019] 8 S.C.R. 1180
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Shikshaks on compassionate grounds. The respondents were
appointed on 12 April 2008 and 19 August 2008, after the
enforcement of the 2006 Rules. Their appointments were in terms
of Rule 10 of the 2006 Rules. The respondents accepted the
appointments. The Single Judge, in placing reliance on the
instruction dated 17 October 2008, failed to notice the 2006 Rules.
The Division Bench was of the view that withdrawal of the
instruction dated 17 October 2008 by the subsequent instruction
dated 22 June 2009 would not obviate compliance with the
mandamus issued by the Single Judge on 15 May 2009. The
Division Bench ignored the fact that both the respondents were
appointed in terms of Rule 10 of the 2006 Rules. Having accepted
the appointment, it was not open to them to assert, as they did,
that they should be appointed in the service of the Government
of Bihar. Moreover, no executive instruction could have
superseded the rules. [Para 9] [1186-G-H; 1187-A-B]
1.2 In the instant case the respondents have been appointed
after 1 July 2006. Their case would hence be governed by the
2006 Rules. The observations contained in the decision of the
Division Bench in Mukesh’s case that the appellants who were
appointed after 01.07.2006, the date on which the Rules came
into the force, are not entitled to claim appointment on regular
pay scales will apply to the respondents in the instant case. The
High Court was manifestly in error in directing the Government
of Bihar to
appoint the respondents in its regular service despite
the fact that their appointments were made after the 2006 Rules
were brought into force. The respondents duly accepted their
appointments as Nagar Shikshaks. However, liberty is granted
to the respondents to approach the State Government for suitable
relief in terms of the orders passed in Special Leave Petition (C)
No 29655 of 2010 and in the same terms as ordered by this Court
in its judgment in Mukesh’s case. The judgment and order of the
High Court is set aside. [Paras 11, 12] [1189-A-C]
Mukesh v State of Bihar (2017) 5 SCC 383 - relied on.
Vishwanath Pandey v State of Bihar (2013) 10 SCC
545 ; State of Bihar v Pooja Mishra SLP(C) No. 029453
of 2015 ; State of Bihar v Sanjay Kumar SLP(C) No.
038376 of 2016 – referred to.
STATE OF BIHAR AND ORS. v. DILIP KUMAR AND ANR
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[2019] 8 S.C.R.
Case Law Reference
(2013) 10 SCC 545
referred to
Para 5
(2017) 5 SCC 383
relied on.
Para 11
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5205
of 2019.
From the Judgment and Order dated 30.03.2015 of the High Court
of Judicature at Patna in Letters Patent Appeal No. 1589 of 2009.
Manish Kumar, Gopal Singh, Advs. for the Appellants.
Abhijeet Sinha , Advs. for the Respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. A Division Bench of the High Court of Judicature at Patna by
its judgment dated 30 March 2015 affirmed the view of the learned
Single Judge, and directed the grant of compassionate appointment to
the respondents on a regular scale of pay in the services of the State
Government and not on the post of Nagar Shikshaks to which they
were appointed. This direction was based on an instruction dated
17 October 2008 issued by the Government of Bihar, which has since
been withdrawn. Aggrieved by order of the Division Bench, the State of
Bihar is in appeal.
2. The father of the first respondent died in harness on 7 May
2006, while in employment as an Assistant Teacher in a primary school.
The mother of the second respondent was also an Assistant Teacher in
a primary school when she died in harness on 9 September 2006.  On 25
January 2008 and 27 June 2008, the District Compassionate Appointment
Committee1 considered the request of the respondents for compassionate
appointment.
On 12 April 2008, the first respondent was offered
employment on the post of Nagar Shikshak under Rule 10 of the Bihar
Municipal Body Elementary Teachers (Employment and Service
Conditions) Rules, 20062. On 19 August 2008, the second respondent
was offered appointment as a Nagar Shikshak on the basis of the
recommendation of the DCAC.  On 17 October 2008, the Personnel
and Administrative Reforms Department of the Government of Bihar,
1 DCAC
2 2006 Rules
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issued an instruction stating that the posts of Panchayat Teachers and
Block Teachers are not borne on the service of the government, hence
it is not within the jurisdiction of the DCAC to recommend appointments
to those posts. The instruction stated thus:
“..that it has been clear from the perusal of the minutes of the
meeting of few District Compassionate Committees that the
recommendation has been made for the appointment against the
post of Panchayat Teacher, Block teacher, town teacher on the
compassionate ground by the District Compassionate Committee.
The post of the Panchayat Teacher, Block Teacher are not the
post of the Government and making a recommendation for the
appointments on such post on the compassionate ground does not
fall under the jurisdiction of the compassionate committee.
As per the direction, I have to say that it should be ensured that
the recommendation be not made for the appointment against the
appointment on post of the Panchayat Teacher, Block Teacher.
If any such recommendation has been made then it should be
reconsidered by the District Compassionate Committee and
recommendation be ensured as per the circular issued by this.”
3. The respondents instituted writ proceedings under Article 226
before the High Court, seeking a mandamus for their appointment on a
compassionate basis to posts under the control of the State Government.
On 15 May 2009, a learned Single Judge of the High Court accepted the
grievance of the
respondents that the posts of Nagar Shikshak to which
they were appointed were not government posts with a regular pay scale
but were posts with fixed emoluments.  This, in the view of the learned
Single Judge, was contrary to the Government Instruction dated 17
October 2008. In consequence, while allowing the writ petition, the learned
Single Judge directed that the recommendations of the DCAC be
implemented “strictly” in accordance with the instruction dated 17
October 2008.
4. Subsequently, on 22 June 2009, the State Government issued a
fresh instruction which clarified that it is permissible for the Committee
constituted under the Rules to make compassionate appointments to the
posts of panchayat teachers/block teachers/town teachers.  The relevant
part of the instruction is extracted below:
STATE OF BIHAR AND ORS. v. DILIP KUMAR AND ANR
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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“..the provision has been made as per the Rule 10 of Bihar
Panchayat Primary Teacher Employment and Service Conditions
Rules, 2006 :-
“10 Employment/Appointment on the basis of compassionate
ground:- Employment/appointment against the vacancy available
on the post of Panchayat Teacher/Block Teacher could be made
in accordance with the eligibility prescribed on the basis of the
compassionate ground in respect of the dependents of the teaching
or non-teaching staff, if he gives the consent clearly for this :-
In view of the terms and conditions prescribed for the appointment,
the appointment on the compassionate ground by the aforesaid
committee, in view of the Circular of the Personnel &
Administrative Department of the Government. It will be
compulsory for untrained dependents to obtain the training within
a period of six years for the date of appointment”.
Such provisions has also been made under Bihar Panchayat
Primary Teacher Employment and Service Conditions Rules, 2006.
In the aforesaid provisions, the meaning of the word committee is
with respect to the committee constituted under the Rule.  In this
way, it is clear that the appointment of the dependent of the
teaching and non-teaching employees can be made on the basis
of compassionate basis on the post of Panchayat Teacher/Block
Teacher/town Teacher on the regular pay by the committee
constituted under the aforesaid rules.”
5. A Letters Patent Appeal was
filed by the state against the
decision of the Single Judge. The Division Bench, by its judgment dated
30 March 2015, held that since the death of the employees while in
service had taken place before the 2006 Rules were enforced, and the
circular/instruction dated 17 October 2008 clarified that compassionate
appointments were required to be made to a post in the service of the
government, the writ petition had been correctly allowed.   The Division
Bench held that the instruction dated 22 June 2009, recalling the earlier
circular/instruction, would not take away the effect of the mandamus
issued by the Single Judge. The High Court also observed that in
Vishwanath Pandey v State of Bihar3 (“Vishwanath Pandey”), this
Court had affirmed the view of a Single Judge of the High Court that
3 (2013) 10 SCC 545
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where the occurrence had taken place prior to the enforcement of the
Rules of 2006, the appointment would have to be made as a teacher
under the government.
6. Learned counsel appearing on behalf of the appellants submitted
that  compassionate appointments are governed by the 2006 Rules. Under
Rule 10, Nagar Shikshaks are to be appointed on compassionate
grounds. Moreover, Rule 20 supersedes all previous rules, resolutions,
orders and instructions.  In the present case, it was urged that the
respondents consented to their appointment and joined the post of Nagar
Shikshak in terms of Rule 10. Hence, the High Court was not justified
in directing that their services to be shifted from the posts of Nagar
Shikshak to  posts under the control of the Government.  In the facts of
this case, it has been urged that the offers of appointment to the
respondents as Nagar Shikshaks were made prior to the instruction
dated 17 October 2008.  Moreover, the appointments as Nagar Shikshaks
being in accordance with the 2006 Rules, the High Court was not justified
in directing the state to take over the services.  In this context, reliance
has been placed on a judgment rendered by a two Judge Bench of this
Court in Mukesh v State of Bihar4 (“Mukesh”) on 3 April 2017,
where the decision of this Court in Vishwanath Pandey has been
considered and distinguished.
7. On the other hand, learned counsel appearing on behalf of the
respondents supported the judgment of the High Court
for the reasons
which weighed in the grant of relief. Learned counsel submitted  that
Letters Patent Appeals filed by the State against similar decisions of the
learned Single Judges of the High Court were dismissed, and this Court
dismissed the Special Leave Petitions filed under Article 136 of the
Constitution by the State. In this context, reliance has been placed on
the orders passed by this Court in:
(i) State of Bihar v Pooja Mishra5 (“Pooja Mishra”); and
(ii) State of Bihar v Sanjay Kumar6 (“Sanjay Kumar”).
The above Special Leave Petitions were dismissed on 9 October
2015 and 11 November 2016 respectively.  It was urged that this Court
should follow the same course of action by dismissing the civil appeal.
4 (2017) 5 SCC 383
5 SLP(C) No. 029453 of 2015
6 SLP(C) No. 038376 of 2016
STATE OF BIHAR AND ORS. v. DILIP KUMAR AND ANR
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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8. The    2006    Rules    were   notified   on  1 July 2006.  Rule  3
contains a categorisation of Elementary teachers:
“3. Category of Town Elementary Teachers – There shall be
two category of Town Elementary Teachers :-
(A) Nagar Shikshak (Trained)
(B) Nagar Shikshak (Untrained)”
Rule 8 provides for conditions of eligibility. Rule 9 provides for the
procedure for appointment. Rule 10 contains the following provision:
“10. Appointment on compassionate ground :- The employment
may be made of the dependents of teaching/ non-teaching
employees on compassionate ground as per determined
qualification on the post of Town Teacher (Trained) and Town
Teacher (Un-Trained) against the available vacancies, if he gives
manifestly his consent for this. The appointment may be made by
aforesaid Committee in the light of other conditions concerned
with appointment on compassionate ground by the Personnel
Department of Government. After the employment, un-trained
dependents shall acquire training within maximum 6 years.”
Rule 20, which contains a repeal and savings provision, is in the
following terms:
“20. Repeal & Saving :- (i) From the date of enforcement of this
Rules, all the previous Rules, Resolutions, Orders and Instructions
regarding the employment of Primary Teachers/ Physical Teachers
in urban area shall be deemed repealed.
(ii) But notwithstanding this repeal no effect shall be made on any
earlier Rules, Resolution,
Order, Instruction etc. regarding the
salary etc. and Service Conditions of the teachers.”
9. With the enforcement of the 2006 Rules, Rule 10 governs the
appointment of Nagar Shikshaks on compassionate grounds. The
respondents were appointed on 12 April 2008 and 19 August 2008,  after
the enforcement of the 2006 Rules. Their appointments were in terms
of  Rule 10 of the 2006 Rules. The respondents accepted the appointments.
The learned Single Judge, in placing reliance on the instruction dated 17
October 2008, failed to notice the 2006 Rules. The Division Bench was
of the view that withdrawal of the instruction dated 17 October 2008 by
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the subsequent instruction dated 22 June 2009 would not obviate
compliance with the mandamus issued by the Single Judge on 15 May
2009. The Division Bench ignored the fact that both the respondents
were appointed in terms of Rule 10 of the 2006 Rules. Having accepted
the appointment, it was not open to them to assert, as they did, that they
should be appointed in the service of the Government of Bihar. Moreover,
no executive instruction could have superseded the rules.
10. Learned counsel appearing on behalf of the respondents has
placed reliance on the orders of this Court dated 9 October 2015 and 11
November 2016 dismissing the Special Leave Petitions filed under Article
136 by the State in the cases of Pooja Mishra and Sanjay Kumar. The
above orders, by which this Court dismissed the Special Leave Petitions
against the decision of the Patna High Court, will not aid the submissions
of the respondents. This is for the simple reason that subsequently, a
two Judge Bench of this Court in Mukesh, in its decision dated 3 April
2017 considered the provisions of the 2006 Rules as well as the precedent
on the subject. This Court extracted from the decision in Vishwanath
Pandey (on which reliance has also been placed by the impugned
judgment of the Division Bench of the High Court).  In Mukesh’s case,
this Court held:
“By the impugned judgment, a Division Bench of the High Court
correctly held that the Appellants have no legal right to seek
appointment on
compassionate grounds. Compassionate
appointments are not a source of recruitment and they are made
to provide succour to the family of an employee who dies in
harness. In the State of Bihar compassionate appointments are
governed by instructions issued by the Government. Some of the
Appellants were recommended for appointment to Class III posts
on a regular basis by the District Compassionate Committee.
However, they were appointed as Prakhand Teachers/Panchayat
Shikshaks/ Nagar Shikshaks, etc. on a fixed pay. The Appellants
could not have been appointed on a fixed pay and they are entitled
for appointment to either on Class III or Class IV posts on regular
basis or payment of regular pay scale in the posts of as Prakhand
Teachers/Panchayat Shikshaks/Nagar Shikshaks, etc. in which
they are working at present. Some of the Appellants who were
recommended for appointment to Class III posts but were
appointed as Prakhand Teachers/Panchayat Shikshaks/Nagar
STATE OF BIHAR AND ORS. v. DILIP KUMAR AND ANR
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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Shikshaks, etc. on fixed pay are similarly situated to Vishwanath
Pandey and they are entitled to be appointed on a regular pay
scale.”
In regard to those of the appellants who were appointed after
1 July 2006 (the date of enforcement of the 2006 Rules), this Court
observed:
“The other Appellants who were appointed after 01.07.2006 are
not entitled to the relief granted to those who were recommended
for appointment to Class III or Class IV posts prior to that date. A
Full Bench of the Patna High Court in State of Bihar and Others
v. Rajeev Ran Vijay Kumar, reported in (2010) 3 PLJR 294 (FB),
held that the dependents of deceased Government employees do
not have a legal right to be appointed in Government posts. Their
appointments on compassionate grounds shall be in accordance
with Bihar Panchayat Primary Teacher (Employment and Service
Conditions) Rules, 2006 (hereinafter referred to as the ‘Rules’)
which came into force w.e.f. 01.07.2006. Rule 10 of the said
Rules provides for employment on compassionate grounds to the
dependents of teaching/ non-teaching employees against available
vacancies of Panchayat Teachers/Block Teachers/Prakhand
Teachers, etc. Such appointments can be made only on a fixed
pay by the committee constituted under the Rules. The Appellants
who have not been recommended for appointment to Class
III or Class IV posts prior to 01.07.2006 are not covered
by Vishwanath Pandey’s case (supra). On the
other hand, they
are squarely covered by the judgment of Full Bench of the Patna
High Court. They are not similarly situated to those who were
recommended for appointment to Class III posts prior to
01.07.2006. The Appellants, who were appointed after
01.07.2006, the date on which the Rules came into force,
are not entitled to claim appointment on regular pay scales.
It is relevant to note that the judgment of the Full Bench of the
High Court of Patna was challenged before this Court. The said
SLP was withdrawn with liberty granted to the petitioners therein
to approach the Government for suitable relief.”
(Emphasis supplied)
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11. Admittedly, in the present case as well, the respondents have
been appointed after 1 July 2006.  Their case would hence be governed
by the 2006 Rules. The above observations contained in the decision of
the Division Bench in Mukesh will apply to the respondents in the present
case.  The High Court was manifestly in error in directing the Government
of Bihar to appoint the respondents in its regular service despite the fact
that their appointments were made after the 2006 Rules were brought
into force.  The respondents duly accepted their appointments as Nagar
Shikshaks.  However, we grant liberty to the respondents to approach
the State Government for suitable relief in terms of the orders passed in
Special Leave Petition (C) No 29655 of 20107 and in the same terms as
ordered by this Court in its judgment dated 3 April 2017 in Mukesh.
12. The civil appeal is allowed. The judgment and order of the
High Court dated 30 March 2015 is set aside.  There shall be no order as
to costs.
13. Application for impleadment is disposed of.  Pending
application(s), if any, are also disposed of.
7 Rajiv Ranvijay Kumar v State of Bihar
Nidhi Jain
Appeal allowed.
STATE OF BIHAR AND ORS. v. DILIP KUMAR AND ANR
[DR. DHANANJAYA Y CHANDRACHUD, J.]