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2012 DIGILAW 426 (PAT)

State of Bihar v. Rakesh Kumar

2012-03-12

BIRENDRA PRASAD VERMA, R.M.DOSHIT

body2012
R.M. DOSHIT, CJ.:–Feeling aggrieved by the judgment and order dated 15th March 2010 passed by the learned single Judge in above CWJC No. 2071 of 2007, the respondents State of Bihar and others have preferred this Appeal under Clause 10 of the Letters Patent. 2. The respondents-writ petitioners are the dependant children of the government employees who died in harness. It is not in dispute that the deceased parent of each writ petitioner was an Assistant Teacher in a Government school. Each such Assistant Teacher died in harness. The claim of the writ petitioners for compassionate employment in Government service was considered by the District Compassionate Appointment Committee (hereinafter referred to as “the Committee”) during the Years 2002 and 2003. The Committee in respect of the dependant members of the deceased Assistant Teachers recommended that such dependants be appointed as Assistant Teacher in Government schools. Pursuant to the said recommendation, some 11 persons were appointed as Assistant Teacher in Government schools. We are informed at the Bar that the said persons are still serving as Assistant Teacher in the Government schools. Nevertheless, in spite of the recommendation made by the Committee, the petitioners were not offered compassionate appointment. 3. The petitioners approached this Court under Article 226 of the Constitution in CWJC No. 14391 of 2004. By judgment and order dated 6th April 2005, the learned single Judge was pleased to allow the said petition. The appellants were directed to appoint the petitioners as Assistant Teacher in Government schools as recommended by the Committee. The said judgment was challenged by the State of Bihar in Letters Patent Appeal No. 697 of 2005. By judgment and order dated 3rd January 2006, the Division Bench was pleased to hold that the petitioners did not possess the minimum qualification prescribed by the National Council for Teachers’ Education. The petitioners, therefore, could not be appointed as teacher on compassionate ground. The Bench further held that the recommendation made by the Committee did not create a vested right to appointment on the posts recommended by the Committee. Nevertheless, the Bench directed the appellants to consider the case of the petitioners for their appointment on appropriate posts. Pursuant to the said direction, the Committee once again considered the case of the petitioners for compassionate appointment in the State service. Nevertheless, the Bench directed the appellants to consider the case of the petitioners for their appointment on appropriate posts. Pursuant to the said direction, the Committee once again considered the case of the petitioners for compassionate appointment in the State service. Under its report dated 27th February 2006, the Committee recommended that the petitioners be appointed in Government service on non-teaching Class III posts. 4. Since the said order, pursuant to the Bihar Panchayat Elementary Teachers (Employment and Service Conditions) Rules, 2006 (hereinafter referred to as “the Rules of 2006”), particularly Rule 10 thereof, the petitioners have been employed as Panchayat Teacher under the Rules of 2006 on consolidated pay on condition that they shall acquire the qualification of a trained teacher within six years from the date of the appointment. Feeling aggrieved by their appointment as Panchayat Teacher on compassionate ground under the Rules of 2006 the petitioners filed the above CWJC No. 2071 of 2007 under Article 226 of the Constitution. 5. According to the petitioners, they were entitled to employment in the Government service on non-teaching posts. They could not have been appointed as Panchayat Teacher under the Rules of 2006. Reliance was placed on Paragraph 17 of the memo of the Letters Patent Appeal No. 697 of 2005 preferred by the State Government against the order dated 6th April 2005 passed in the above-referred CWJC No. 14391 of 2004. In the said Paragraph 17, the State Government had committed, “… the stand of the respondents in the present case was not to deny the appointment of the dependants on any other equivalent post, but precisely not on the post of Assistant teacher as they were untrained.” 6. The petition was contested by the State Government. According to the State Government, the petitioners not being trained, they had no right to appointment as Assistant Teacher in the Government schools. All that they could claim was the compassionate employment. In the discretion of the State Government, the State Government had appointed the petitioners as Panchayat Teacher on available vacancies. The appointment of the petitioners was in consonance with Rule 10 of the Rules of 2006. The petitioners having accepted such appointment, the challenge to the said appointment was not tenable. 7. In the discretion of the State Government, the State Government had appointed the petitioners as Panchayat Teacher on available vacancies. The appointment of the petitioners was in consonance with Rule 10 of the Rules of 2006. The petitioners having accepted such appointment, the challenge to the said appointment was not tenable. 7. The learned single Judge, by the impugned judgment and order, held that the recommendation made by the Committee to appoint the petitioners on non-teaching Class III posts in the Government service was binding to the appellants. Consequently, the learned single Judge has issued direction to the appellants “to shift the petitioners, within one month from the date of receipt/production of a copy of this order, and adjust them against any non-teaching class-III posts in any of the offices of the Government in the District, as may be available now. Since the petitioners had joined pursuant to the appointment letter issued to them between 2nd May to 5th May, 2005, after the orders of the learned Single Judge, they shall also be entitled for continuity of their service, so far as seniority and other service conditions are concerned, except actual payment of differential of salary, which they may be found notionally entitled to.” Feeling aggrieved, the State has preferred this Appeal. 8. Learned advocate Mr. Manoj Priyadarshi has appeared for the appellants. He has submitted that the impugned judgment and order of the learned single Judge is contrary to the Full Bench decision of this Court in the matter of The State of Bihar & Ors. Vs. Rajeev Ran Vijay Kumar [ 2010 (3) PLJR 294 ]. Mr. Priyadarshi has submitted that the Full Bench of this Court has clearly stipulated that the dependants of the deceased Government servants have no right to preference in the matter of appointment. They cannot claim appointment on Class III posts in Government service as a matter of right. In view of Rule 10 of the Rules of 2006, they can be appointed as Panchayat Teacher under the said Rules. Mr. Priyadarshi has submitted that the learned single Judge has appreciated the principle enunciated by the Full Bench but has failed to implement the same. Mr. Priyadarshi has also submitted that the appointment of the petitioners as Panchayat Teacher under Rule 10 of the Rules of 2006 is legal. The petitioners having accepted such appointment, the same is binding to the petitioners. Mr. Priyadarshi has also submitted that the appointment of the petitioners as Panchayat Teacher under Rule 10 of the Rules of 2006 is legal. The petitioners having accepted such appointment, the same is binding to the petitioners. The Appeal is contested by the petitioners. 9. Learned counsel Mr. Vinod Kumar Kanth has appeared for the petitioners. He has submitted that the petitioners do not ask for compassionate employment on Class III posts in Government service as a matter of right. The claim is based on the solemn statement made by the State Government and the direction issued by the Division Bench of this Court. Mr. Vinod Kumar Kanth has submitted that the petitioners do agree that they are not qualified to hold the post of teacher in Government schools and that they have no right to employment as teacher in the Government schools. But in the aforesaid fact situation, the petitioners have a right to employment on Class III posts under the State Government. Employment as Panchayat Teacher under the Rules of 2006 is not a service under the State Government, appointment to which the petitioners are entitled. Learned advocate Mr. Priyadarshi has extensively read the Full Bench judgment of this Court in the matter of Rajeev Ran Vijay Kumar (supra). There is no gainsaying that the Full Bench of this Court has in no uncertain words held that the untrained persons cannot claim right to appointment as Assistant Teacher in Government schools on compassionate ground. The Bench has also held that Rule 10 of the Rules of 2006 does permit the State Government to make appointment of Assistant Teachers on compassionate ground. However, the question before us is whether the petitioners have to be appointed as Panchayat Teachers under Rule 10 of the Rules of 2006; does the said Rule 10 enjoin the State Government to make appointment of petitioners as Panchayat Teacher on compassionate ground. 10. We may note here that the Rules of 2006 have been framed in exercise of the constitutional and statutory power conferred upon the State Government. The Rules of 2006 are, therefore, statutory in nature. The Rules of 2006 have been framed with an avowed object to strengthen elementary education in the rural parts of the State of Bihar. Rule 10 of the Rules of 2006 provides for appointment on compassionate ground. The Rules of 2006 are, therefore, statutory in nature. The Rules of 2006 have been framed with an avowed object to strengthen elementary education in the rural parts of the State of Bihar. Rule 10 of the Rules of 2006 provides for appointment on compassionate ground. The said Rule 10 enables the State Government to appoint the dependant of a teacher or a non-teaching staff as Panchayat Teacher or Block Teacher on the available vacancy provided such dependant gives a specific consent for such appointment. Upon perusal of the record and the Government Scheme for compassionate employment reproduced in the judgment in the matter of Rajeev Ran Vijay Kumar (supra), it is abundantly clear that under the then prevalent scheme a dependant member of the family of the deceased Government employee could not be appointed as a teacher on compassionate ground, if he did not possess the requisite qualification prescribed by the National Council for Teachers’ Education. The said requirement has been diluted under the Rules of 2006 by framing Rule 10 of the Rules of 2006. The appointment of such untrained persons as Panchayat Teacher or Block Teacher on compassionate ground is permitted on condition, inter alia, that such person gives specific consent for such appointment and acquires the training within six years from the date of appointment. 11. In our view, Rule 10 of the Rules of 2006 is an enabling provision and not a mandatory provision. In the present case, as discussed hereinabove, the claim made by the petitioners does not germinate from any statutory provision or from the scheme for compassionate employment, but is based upon the judgments of this Court in CWJC No. 14931 of 2004 and LPA No. 697 of 2005 and the above-referred solemn statement made by the State Government before this Court. 12. We are of the considered opinion that if nothing else enjoins the State Government to appoint the petitioners in Class III service under the State Government; at least it is bound by its solemn statement. It is evident that the State Government readily made such statement before the Court as the appointment of the petitioners as Assistant Teacher would be contrary to the recruitment rules or the mandate of the National Council for Teachers’ Education. It is evident that the State Government readily made such statement before the Court as the appointment of the petitioners as Assistant Teacher would be contrary to the recruitment rules or the mandate of the National Council for Teachers’ Education. At the time, the Rules of 2006 were not yet framed; the State Government could not have even remotely envisaged appointment of the petitioners as Panchayat Teacher. However, before the State Government could make appointment of the petitioners on Class III posts in Government service, as assured before this Court or as recommended by the Committee, the Rules of 2006 intervened. The State Government has, under the shelter of Rule 10 of the Rules of 2006, made appointment of the petitioners as Panchayat Teacher. In our opinion, it is quite debatable whether the power conferred under Rule 10 of the Rules of 2006 can be availed of for appointment of the dependant family member of a deceased Government servant in contradistinction with the Panchayat servants. Rule 10 does not specifically provide whether the said Rule 10 shall apply in case of the employees of the State Government or the Panchayat or shall it apply in case of the employees appointed under the said Rules alone. 13. In any view of the matter, we believe that the petitioners’ claim for compassionate employment having been considered and approved long before the Rules of 2006 were framed; the State Government having made a solemn statement recorded hereinabove; this Court having directed the State Government to appoint the petitioners on any appropriate post under the State Government; the State Government was under obligation to offer employment to the petitioners in any Class III service under the State Government on compassionate ground. The learned single Judge has rightly held that the petitioners are entitled to employment in Government service on non-teaching Class III posts on compassionate ground. But the directions need to be modified so that the education in the Panchayat Schools does not suffer and so that the seniority and other benefits accrued to the existing Government servants are not adversely affected on account of the directions issued by this Court. 14. We, therefore, direct that the appellants will comply with the direction issued by the learned single Judge. 14. We, therefore, direct that the appellants will comply with the direction issued by the learned single Judge. The petitioners will be offered compassionate employment on a non-teaching Class III post in Government service on existing vacancy, preferably within the district, after completion of the present academic session but on or before 1st July 2012. We clarify that this order is made with a view to ensuring that the teaching of the students in Panchayat Schools is not disturbed on account of shifting of the petitioners to Government service. We further modify the order of the learned single Judge to the extent that the petitioners will not be entitled to any service benefits including that of seniority and pay fixation on their appointment on Class III post in Government service. In other words, the petitioners will be entitled to pay, seniority and other service benefits from the date of their appointment in Government service made pursuant to this order. Subject to the above directions, the Appeal and the Interlocutory Application are disposed of. BIRENDRA PRASAD VERMA, J.:–I agree.