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Madhya Pradesh High Court · body

2005 DIGILAW 325 (MP)

Bhupendra Kumar Shrivastava v. State of M. P.

2005-03-02

ARUN MISHRA

body2005
ORDER Arun Mishra, J. 1. In this writ petition petitioner has prayed for the relief to appoint him as regular teacher with permanent status. Petitioner has been appointed as Samvida Shala Shikshak Grade HI on compassionate basis. Other consequential relief's have also been prayed such as seniority and pay scale from the date of initial appointment. 2. It is averred in the petition that petitioner's father was a Patwari. He died on 12-6-2000. Petitioner applied for compassionate appointment on the post of Patwari. Petitioner has been appointed on compassionate basis as Samvida Shala Shikshak Grade III as per order (P-l) dated 11-7-2002. Petitioner has submitted that others have been appointed as Patwari but petitioner has been appointed as Samvida Shala Shikshak Grade HI. Petitioner has filed representation for his appointment on permanent post on regular basis. Appointment has not been made as per prevailing policy, hence the action of the respondents is bad in law. 3. Shri V. K. Shukla, learned counsel appearing for the petitioner has submitted that the latest policy decision is dated 20th August, 2001 by which all the earlier instructions have been cancelled. He has submitted that appointment has to be made by way of compassionate appointment in the capacity of Asst. Grade HI, Shiksha Karmi, Ward Boy, Forest Guard, Patwari, Peon or some other equivalent posts of Class IV. It is not permissible to give compassionate appointment on Class III post or on other executive posts. Learned counsel has, thus, submitted that appointment of the petitioner ought to have been made as Shiksha Karmi or as Patwari not as contract teacher grade HI. Thus the respondents have committed illegality in not making the appointment of the petitioner as Shiksha Karmi, hence the respondents be directed to appoint the petitioner on suitable post of Shiksha Karmi/Patwari. 4. Shri Vinod Mehta, learned Govt. Advocate, appearing for the respondents has submitted that State Government has framed the rules of appointment of Shiksha Karmis. For appointment as Shiksha Karmis, the rules were framed in the year 1997 called M.P. Panchayat Shiksha Karmis Recruitment and Condition of Service Rules, 1997 (hereinafter referred to as 'the Rules of 1997). These rules provides for appointment on compassionate basis as Shiksha Karmi. Rule 6 specifically deals with compassionate appointment to be made as Shiksha Karmis on the recommendation of the Collector. The appointments were to be made by the concerned Panchayat. These rules provides for appointment on compassionate basis as Shiksha Karmi. Rule 6 specifically deals with compassionate appointment to be made as Shiksha Karmis on the recommendation of the Collector. The appointments were to be made by the concerned Panchayat. Thereafter, fresh rules for appointment of teachers in the schools which have been handed over to Panchayat are governed by the new Rules called "M P. Panchayat Samvida Shala Shikshak Appointment and Condition of Service Rules, 2001" (hereinafter referred to as 'the Rules of 2001). In these rules also there is provision for making compassionate appointment. The Collector has to advise the Panchayat and Panchayat shall appoint such a person on compassionate ground eligible for employment on the post of Samvida Shala Shikshak. He has further submitted that the rules have come into force from the date of publication in the official gazette. Gazette publication was made in the statutory gazette dated 11-7-2001, hence learned counsel has submitted that appointment has been offered as per the rules and the reference in the policy of word Shiksha Karmi has to be read in the context of rules. Rules have to prevail, which are statutory. Once rules have been framed appointment can only be made in the schools run by the Panchayat as contract teachers as provided in the rules of 2001, hence petitioner cannot claim the right to be appointed as Shiksha Karmi/Asst. Teacher after the rules have come into force, as that post is no more available for appointment in the schools run by the Panchayat. Thus, learned counsel has submitted that no case for interference is made out. 5. It is not in dispute that appointment in Schools run by Panchayat is governed by the Rules. Earlier the State Government has framed the rules of 1997. They come into force w.e.f. 1-1-1998. The rules applied to Shiksha Karmis appointed by the Janpad Panchayat or Jila Panchayat in the schools under their control as provided in Rule 3 of the Rules of 1997. Classification and scale of pay has been dealt with in Rule 4, the same shall be as given in Schedule I. It is further provided that number of the posts shall not be increased except with the prior approval of the Government or an Officer duly authorised by the Government. Methods of selection and recruitment has been provided in Rule 5. Methods of selection and recruitment has been provided in Rule 5. Constitution of Selection Committee has been provided. How merit shall be assessed, has also been provided in Rule 5. Roster prescribed by the State Government under M.P. Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhada Vargon Ke Liye Arakshan) Adhiniyam, 1994 is applicable as provided in sub-rule (10) of Rule 5. Rule 6 provides for compassionate appointment. Rule 6 of the rules of 1997 is quoted below :- 6. Compassionate Appointment. - Notwithstanding anything contained in Rule 5 the State Government may sanction such number of additional posts of Shiksha Karmis, as may be necessary to which Panchayat shall, on the recommendation of the Collector, make appointment of persons eligible for employment on compassionate grounds under any rule or instructions issued by the Government for this purpose. Rule 7 provides for appointment on probation basis. An incumbent can be on probation for a maximum period of 5 years. Shiksha Karmi will be paid fixed pay equivalent to minimum of the pay scale with admissible dearness allowance during the probation period. Pay scales of Shiksha Karmi Grade I, Grade II and Grade III have been provided in schedule I. The post of Shiksha Karmi Grade I carries the pay scale of Rs. 1200-40-2000/-. The post of Shiksha Karmi Grade II carries the pay scale of Rs. 1000-1600/-. The post of Shiksha Karmi Grade III carries the pay scale of Rs. 800-1200/-. Discipline and Control is dealt with in Rule 9 of the rules of 1997 for Shiksha Karmis. Services of Shiksha Karmi is terminable on one month's notice as provided in Rule 10. General conditions of service as per Rule 11, other than specifically mentioned in the rules, shall be the same as applicable to other employees of Janpad Panchayat or Zila Panchayat, Rule 14 contains repeal and saving clause, rules corresponding to these rules and in force immediately before the commencement of these rules stood repealed in respect of matters covered by these rules. It is further provided in Rule 14 that any order made or action taken under the rules so repealed shall be deemed to have been made or taken under the corresponding provisions of these rules. 6. It is further provided in Rule 14 that any order made or action taken under the rules so repealed shall be deemed to have been made or taken under the corresponding provisions of these rules. 6. The State Government has framed the rules called M. P. Panchayat Samvida Shala Shikshak Appointment and Condition of Service Rules, 2001, which came into force w.e.f. 11-7-2001, now appointments to be made of the teachers in the schools run by the Panchayat are fully governed by the rules of 2001. Reference to Panchayat in the rules is to be understood as Janpad Panchayat or Zila Panchayat as the case may be, constituted under the Adhiniyam, is provided in Rule 2(e) of the Rules of 2001. The Samvida Shala Shikshak has been defined in Rule 2(h) to mean the person appointed by Janpad Panchayat or Zila Panchayat as the case may be, for teaching in the schools under their control. Rule 3 provides that these rules shall apply to Samvida Shala Shikshak appointed by the Janpad Panchayat or Zila Panchayat for the schools under their control. Classification of samvida shala shikshak and their contract amount shall be such as shown in Schedule I, as provided by Rule 4. Method of selection and method of recruitment has been dealt with in Rule 5. Compassionate appointment has also been dealt with in Rule 6 of the rules of 2001, which is quoted below :- 6. Compassionate Appointment. - Notwithstanding anything contained in Rule 5, the Panchayat on the recommendations of the Collector, may on compassionate ground under the Rules or directions issued by the State Government for the purpose appoint any person eligible for employment on the post of contract teacher. Rule 7 dealt with the appointment to the service. Rule 7 provides that every person selected through direct recruitment for the post of samvida shala shikshak, shall be appointed for a period of 3 years for any particular school. At the end of every year performance of samvida shala shikshak shall be assessed. After 3 years samvida shala shikshak may be appointed again for the next 3 years on contract by the Panchayat on the basis of his work, conduct and performance. Such person on new appointment shall be entitled to receive the increase of 15% of contract amount. At the end of every year performance of samvida shala shikshak shall be assessed. After 3 years samvida shala shikshak may be appointed again for the next 3 years on contract by the Panchayat on the basis of his work, conduct and performance. Such person on new appointment shall be entitled to receive the increase of 15% of contract amount. If die work of samvida shala shikshak is not satisfactory, his services shall be terminated by the Panchayat. For the purpose of discipline and control, samvida shala shikshak shall be under the administrative control of Janpad Panchayat or Zila Panchayat, as the case may be. Samvida Shala Shikshak and their posts are not transferable. 7. The policy which has been relied upon by the petitioner's counsel issued on 20th August, 2001 as mentioned above provides for compassionate appointment as Shiksha Karmi etc. it is conceded that appointments are now being made in the school run by the Panchayat only under the rules of 2001 as contract teacher not under the rules of 1997 as Shiksha Karmi. In my opinion, the rules which are statutory have to prevail and in Rule 6 of the rules of 2001, there is provision of compassionate appointment. It appears that reference to word 'Shiksha Karmi' in the circular dated 20-8-2001 is inadvertent. It has to be as per the rules of appointment of 2001, which provide appointment as contract teacher. Rules have to prevail. The appointment of the petitioner has been made as provided in Rule 6 of the rules framed in the year 2001. Appointment has been made on 11-7-2002 when the rules of 2001 were in force, as such rules of 1997 cannot be said to be applicable as on the date the appointment has been made for the purpose of appointment as teachers in the schools run by the Panchayat. Thus appointment of the petitioner, which has been made as contract teacher is proper. He cannot claim appointment under the rules of 1997 as Shiksha Karmi or on the regular post of Asst. teacher, which posts are no more available for appointment to the Panchayat in view of the statutory rules of 2001 framed by the State Government. 8. Petitioner has been appointed on compassionate basis. He cannot claim appointment under the rules of 1997 as Shiksha Karmi or on the regular post of Asst. teacher, which posts are no more available for appointment to the Panchayat in view of the statutory rules of 2001 framed by the State Government. 8. Petitioner has been appointed on compassionate basis. Appointments are being made by the Panchayat of all the incumbents as per rules of 2001 even from the open competition, persons having better merit who are coming from the front door, are being appointed as contract teachers, earlier appointments were made as Shiksha Karmis under the Rules of 1997. Person who is seeking compassionate appointment cannot seek greater rights than provided under the rules of 1997 and thereafter on coming into force of rules of 2001 of seeking compassionate appointment on the posts which are not available in the Panchayat even for open competition purpose. 9. It is also settled preposition clarified that provision for compassionate appointment does not by itself make every dependent of Govt, employee to be entitled for appointment out rightly under the rules. Such power has to be sparingly exercised only when there are special circumstances available. It is an exception to general rule, offered to remove the penurious condition of family, which is destitute owing to sudden death of sole bread earner of the family. This Court has received large number of such petitions in which it is prayed that nature of appointment be changed compassionate appointment has been offered as Shiksha Karmi/Contract Teacher. It is settled law that appointment cannot be ordered after lapse of reasonable time. It is also provided in the policy that appointment cannot be offered after 7 years of the death of the Govt, employee. In National Hydroelectric Power Corporation and Another v. Nanak Chand and Another, AIR 2004 SCW 6339, the Apex Court has laid down thus :- 8. In State of U. P. and Ors. v. Paras Nath, 1998 (2) SCC 412 it was held that the purpose of providing employment to the dependant of a government servant dying-in-harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointments. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointments. None of these considerations can operate when the application is made after a long period of time. In that case also the delay was 17 years. 9. These aspects were highlighted in State of Manipur v. Md. Rajaodin, 2003 (7) SCC 511 , State of Haryana and Anr. v. Ankur Gupta, 2003 (7) SCC 704 , Haryana State Electricity Board v. Naresh Tanwar, 1996 (8) SCC 23 and Haryana State Electricity Board v. Hakim Singh, 1997 (8) SCC 85 and Punjab National Bank and Ors. v. Ashwini Kumar Taneja (Civil Appeal No. 5256 of 2004 decided on 16-8-2004). 10. Above being the position, we find the judgment of the High Court to be unsustainable. The same is, therefore, set aside. 10. Similar view has been taken by the Apex Court in Haryana State Electricity Board v. Krishna Devi, (2002) 2 LU 773, and State of U.P. v. Paras Nath, (1998) 2 SCC 412 . 11. In Minerals and Metals Trading Corporation of India Ltd. v. Pramoda Dei, (1997) 11 SCC 390 the Apex Court has held that mere death of the employee does not entitle his family to claim compassionate appointment. The Apex Court has further laid down that rehabilitation appointment has not to be given in all cases where it become due because of death of an employee in harness or by his permanent disability. The object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis. In Sanjay Kumar v. State of Bihar, (2000) 7 SCC 192 , the Apex Court has laid down that compassionate appointment is intended to enable the family of the deceased employee to "tide over sudden crisis" resulting due to death of the breadearner who had left the family in penury and without any means of livelihood. In Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 the Apex Court has laid down that compassionate appointment cannot be claimed as of right. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. In Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 the Apex Court has laid down that compassionate appointment cannot be claimed as of right. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty, to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interest of justice and to meet certain contingencies. One such exception is in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. 12. In 5. Mohan v. Govt, of Tamil Nadu, (1998) 9 SCC 485 the Apex Court has laid down that the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over. 13. In Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 the Apex Court has held that compassionate appointment "cannot be granted after a lapse of a reasonable period. The consideration for such employment is not a vested right which can be exercised at any time in future". The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate appointment cannot be claimed and offered whatever the lapse of time and after the crisis is over. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate appointment cannot be claimed and offered whatever the lapse of time and after the crisis is over. The Apex Court has further laid down that it must be remembered in the matter of compassionate appointment that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned. 14. In Chairman, Bihar Rajya Vidyut Board v. Chhathu Ram and Others, (1999) 5 SCC 673 , an adopted son applied for' appointment on compassionate ground and the benefit if any available to adopted son under the scheme for compassionate appointment had already been withdrawn by a standing order. The Apex Court held that denial of compassionate appointment to the respondent, who claimed himself to be the adopted son of the deceased employee was not improper in the facts of the case. 15. The Apex Court has laid down that appointment cannot be offered after lapse of reasonable time. Time is material factor. Respondents are directed to be cautious while making the appointment in the Panchayat on compassionate basis, they are supposed to give appointment only to the deserving candidates as per settled norms, which have been mentioned in the policy. Office has not to be made hereditary one, otherwise the person having the better merit to be selected by open competition may have the room to raise the grievance. Shri Vinod Mehta, GA has submitted that petitioner was 34 years of age when he was appointed. There were no such sympathetic condition at the age of 34 years, petitioner cannot be said to be wholly dependent on the earning of the deceased father. I do not comment on the submission raised by Shri Vinod Mehta, GA. These aspects should have been looked into by the respondents while they were making the appointment of the petitioner on compassionate basis. I do not comment on the submission raised by Shri Vinod Mehta, GA. These aspects should have been looked into by the respondents while they were making the appointment of the petitioner on compassionate basis. Once he has been appointed, I refuse to entertain the submission raised by Shri Mehta, GA in the instant case. However, respondents to be cautious in future in making the compassionate appointment strictly in terms of the policy/rules, not to use the power liberally at a large scale, which appears to be the mode adopted by the respondents to give appointment by way of back door entries even to undeserving candidates. They have to consider each case considering the financial condition, number of dependents and whether the case falls within the parameters of the policy, which is prevailing. 16. Learned counsel for the petitioner has placed reliance on a decision rendered by Single Bench of this Court in W.P.S. No. 1748/2004, Pankaj Jasu v. State of M.P. and Others decided on 5-4-2004. This Court has simply directed the consideration of the case in the light of the circular which was prevailing, the appointment was made on 1-10-1999. Rules of appointment of Shiksha Karmis have not been considered in the above decision. There is no adjudication on merits of the case rendered by this Court. Respondents were directed to consider the case within 3 months. In the absence of adjudication on merit of the various aspects, the decision cannot be termed to be an authority, the submissions have been raised on merit in the instant case, this Court has not dealt with on these aspects in the order relied upon by the petitioner's counsel. Reliance has also been placed on yet another' decision rendered in W.P.S. No. 10089/2004 decided on 7-10-2004, in which direction was given to consider the case of the petitioner within 3 months. Order was not passed on merit of the case. Entitlement of the petitioner has not been fixed, thus the order passed in W.P.S. No. 10089/2004 cannot be treated to be a precedent on merit as to the entitlement of the incumbent whether appointment has to be made as Shiksha Karmi or Asst. Teacher/Teacher or as contract teacher. Order was not passed on merit of the case. Entitlement of the petitioner has not been fixed, thus the order passed in W.P.S. No. 10089/2004 cannot be treated to be a precedent on merit as to the entitlement of the incumbent whether appointment has to be made as Shiksha Karmi or Asst. Teacher/Teacher or as contract teacher. I have also passed various orders for consideration of the representation but merely the passing of the order of consideration of representation cannot be said to be an authority on merit of the case. It is true that this Court has directed consideration of the representations decision was not rendered on merit, representations have also been rejected in several cases, thereafter this Court has received flood of such petitions. This Court has not earlier decided on merit of the case. No such decision has been shown by Shri V.K. Shukla, learned counsel appearing for the petitioner that on merit this Court has decided the entitlement considering the rules of appointment of Shiksha Karmi/contract teacher. 17. A Full Bench of this Court in W.P.S. No. 1368/2004, Jagdish Prasad Tripathi v. State of M.P. and Others decided on 29-10-2004, [ 2004 (4) MPL3 564 ] presided by My Lord Hon'ble the Chief Justice has laid down thus :- 9. The greater the power or discretion, the greater should be caution and restraint in exercising such power or discretion. The Courts cannot direct an authority to act sympathetically, where the matter is governed by statutory rules and regulations, merely because the Court feels that persons who has approached the Court should be shown sympathy. In service jurisprudence, every time preference in appointment is shown to some one out of sympathy, the result will be to deny correspondingly, employment to a deserving candidate, who would have got that appointment by reason of fulfilling the eligibility and qualification criteria. The decision in S. K. Nema has opened the flood gates for persons who were employed for few days, decades ago, to approach the authorities and Courts requesting and asserting that they should be given employment by the State, irrespective of the fact that they are in the late 40s or 50s and irrespective of the fact that they are totally out of touch with teaching, and requiring the State to ignore the maximum age limit criterian, prescribed by the rules. But judicial process should not become an alternative mode of recruitment, dehorns the rules (vide State of M.P. v. Suresh Kumar Verma, 1996 (7) SCC 5621). 10. One more aspect is however required to be borne in mind. When a Court directs an authority to consider the matter sympathetically, it does not mean the rules and regulations governing the matter can be flouted or ignored. At best it could only mean that .where two views are possible, a view that is favorable to the employee may be adopted, or where the matter is one of discretion, such discretion may be exercised in favour of the employee. In fact, the question of acting sympathetically would arise only where the matter is not governed by any specific rule or regulation and where the authority concerned is vested with discretion, and where any action based on sympathy would not prejudice any other person, but lead to a just result. Be that as it may. It. is evident that the decision in S. K. Nema is erroneous and unsustainable. 12. Any observation made or relief given by a Court, out of sympathy, compassion, sentiments, and not based on any discernible principle of law or dehorns the merits of the case, cannot be a binding precedent. A judgment of a Court contains three parts : (i) finding of facts, (ii) statement of principle of law applicable to the legal problem raised on the facts, based on which the case is decided; and (iii) decision which is based on the finding of fact, applicable principles of law, and in some cases, discretion and the need to mould the relief in a particular manner. Out of the three parts, it is only the second part, that is ratio decidendi or statement of law applied and acted upon by the Court, that is a binding precedent. Neither the findings on facts nor the ultimate decision, that is, the relief given or the manner adopted to dispose of the case, is a precedent. 18. In view of the above discussion, I find that appointment made of the petitioner on compassionate basis as contract teacher cannot be faulted in view of Rule 6 of the rules of 2001, which are statutory. When appointment is not being made as Shiksha Karmi or Asst. teacher in view of the rules of 2001 petitioner cannot claim appointment on regular post of Asst. When appointment is not being made as Shiksha Karmi or Asst. teacher in view of the rules of 2001 petitioner cannot claim appointment on regular post of Asst. Teacher nor as Shiksha Karmi under the rules of 1997 as appointment has been made in the year 2002 when rules of 2001 were in vogue. Similarly a person appointed under the rules of 1997 as shiksha karmi cannot claim right to be appointed as Asst. teacher on compassionate basis. The submission made by the petitioner's counsel that petitioner should have been appointed as Patwari, the petitioner has joined the post of contract teacher, petitioner has obtained appointment as contract teacher on compassionate basis on 11-7-2002/16-7-2002. I find no case for any further interference in the instant case. Petitioner should thank himself as he has been appointed at the advance age of 34 years as Samvida Shala Shikshak on compassionate basis, under the rules of 2001. 19. Writ petition is devoid of merit, same is hereby dismissed. Parties to bear their own costs as incurred.