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2014 DIGILAW 708 (PAT)

Anurag Kumar v. State of Bihar

2014-06-26

SHIVAJI PANDEY

body2014
ORDER 1. Heard learned counsel for the petitioner and the State. 2. In this case petitioner is seeking relief for direction to the District Superintendent of Education, Gopalganj, respondent no.3 to appoint the petitioner on Class-III post in the light of recommendation of the State Compassionate Committee, contained in letter No. 887 dated 28th July 2008, as the name of petitioner finds at sl.no.21. 3. As it appears from the record, one Lila Shrivastava mother of the petitioner was an Assistant teacher under the Government of Bihar who died in harness on 28th August 2007 leaving behind unemployed husband and two sons who were pursuing their studies at different places. Late Lila Shrivastava, who was posted in the Rajkiya Middle School, Majirwa Kala, Gopalganj, was the only bread earner to the whole family and after her death, the whole family started facing the situation of starvation. Father of the petitioner also died on 31st July 2008 due to cardiac arrest leaving behind the petitioner and one more son. 4. Petitioner applied for appointment on Class-III post and the matter was placed before the District Compassionate Appointment Committee, Gopalganj and the case of petitioner along with others was considered. 5. The Committee in its meeting dated 14th July 2008 recommended for appointment of petitioners on Class-III post and the name of petitioner stands at Sl.No.21 in Annexure-3. Petitioner was not appointed as Class-III employee but he was approached orally by the District Superintendent of Education, Gopalganj who offered him the post of Panchayat Teacher. 6. Counsel for the petitioner submits that as the recommendation was made for Class-III post and that still holds the field as it has not been revised or modified till date. He further submits that Rule 10 of the Bihar Panchayat Teachers Appointment and Condition of Service Rules 2006, does not prohibit the appointment of dependents of teaching and non-teaching staff of the School (Government servant) to appoint him on any post other than the Panchayat teacher. Rule 10 of the Rules 2006 is the enabling provision and it is not mandatorily required that every dependent of teaching and non-teaching staff would get the post of Panchayat Teacher only. He further submitted that as there is no bar it cannot be said that the petitioner cannot be appointed on Class-III or Class-IV post in view of the recommendation made by the District Compassionate Appointment Committee. 7. He further submitted that as there is no bar it cannot be said that the petitioner cannot be appointed on Class-III or Class-IV post in view of the recommendation made by the District Compassionate Appointment Committee. 7. He has relied on catena of decisions reported in:- (i) Vishwanath Pandey vs. State of Bihar, 2013 (3) PLJR 305 (SC) (ii) The State of Bihar & Others vs. Rakesh Kumar and Others, LPA No. 734 of 2011 (iii) The State of Bihar & Another vs. Saket Suman and Others, LPA No. 600 of 2011 (iv) The State of Bihar and Others vs. Umesh Kumar Ram, LPA No. 925 of 2010 8. He has further submitted that the Full Bench in the case of Rajiv Ran Vijay Kumar, 2010 (3) PLJR 294 as submitted has been explained in the aforesaid judgments. 9. He has further submitted that in the Full Bench, no issue was raised about the nature of provision of Rule 10 of 2006 Rules as to whether it was in the nature of mandatory or directory but the same has been explained in the case of Rakesh Kumar’s case (supra). He has further submitted that the Division Bench in the case of Saket Suman (supra) has dealt with formulation, context and the situation of Rule 10 of 2006 Rules the same was not under consideration in the Full Bench in Rajiv Ran Vijay Kumar and submitted, petitioner is entitled to be accommodated against Class-III post. 10. As the petitioner has requisite qualification for being appointed as Panchayat Teacher but he is not inclined to serve as a teacher rather he intends to serve on Class-III post. 11. Counsel for the State submitted that the Full Bench in Rajiv Ran Vijay completely covers the field where the issue was raised about the appointment of a dependent of Government servant (dependent of teaching and non-teaching staff) to the post of Panchayat Teacher as Circular No. 6905 dated 17th October 2008 shows that persons holding the post of Panchayat Teacher are not Government servant. 12. He has further submitted that letter dated 17th August 2008 has been withdrawn and substituted by another letter of the Government vide letter No. 2955 dated 22nd June 2009 shows the persons holding the post of Panchayat Teacher are Government servant. 12. He has further submitted that letter dated 17th August 2008 has been withdrawn and substituted by another letter of the Government vide letter No. 2955 dated 22nd June 2009 shows the persons holding the post of Panchayat Teacher are Government servant. In the changed situation, dependents of teaching and non-teaching staff can only be accommodated as only as Panchayat Teacher. 13. In this view of the matter, person holding the post of Panchayat Teacher are Government servant and as such, after withdrawal of said letter, it cannot be said that the petitioner cannot be appointed on the post of Panchayat Teacher or a block teacher. 14. The appointment on compassionate ground is an exception to the general Rule as it is intended to give financial support to the family to tide over the financial crisis and to save the family from penury on account of death of the sole bread winner. The object behind is to give succour to the family which has been suddenly plunged into penury due to the untimely death of the sole breadwinner. The object of compassionate appointment is that the family of the deceased employee to tied over the sudden crisis resulting due to death of the bread earner which has left the family in penury and without any means of livelihood, out of pure humanitarian consideration having regard to the fact that unless some source of livelihood is provided, the family would not be able to arrange both ends meet. Such appointment is departure from the general provision provided for appointment on the post by following the procedure and, as such, the nature of appointment is exception to the general Rules. The exception cannot subsume the main provision and thereby nullify the main provision by taking away valid right conferred by the main provision. While giving compassionate appointment, the Government or the public authority concerned, has to examine the financial condition of the family of the deceased and it is only if it is satisfied but for the provision of employment, the family will not be able to meet the crisis and, as such, the job is to be offered to the eligible member of the family. 15. The very concept of compassionate appointment is an exception to Articles 14 and 16 of the Constitution of India as compassionate appointment is neither a fundamental right nor a constitutional right nor statutory right. 15. The very concept of compassionate appointment is an exception to Articles 14 and 16 of the Constitution of India as compassionate appointment is neither a fundamental right nor a constitutional right nor statutory right. Even the recommendation made by the Committee does not create any vested right. 16. The matter for compassionate appointment came for consideration in the case of Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 the Court has given opinion about the compassionate appointment in the following terms: “Para-11: We may also observe that when the Division Bench of the High Court has considered the case of the applicant holding that he had sought compassion, the Bench ought to have considered the larger issue as well and it is that such an appointment is an exception to the general rule. Normally, an employment in Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed except where compelling circumstances demand, such as, death of sole bread earner and likelihood of the family suffering because of the set back. Once it is provided that in spite of death of bread earner, the family survived and substantial period is over, there is no necessity to say goodbye to normal rule of appointment and to show favour to one at the cost of interests of several others ignoring the mandate of article 14 of the Constitution.” 17. The Bihar Panchayat Elementary Teacher (Employment and Condition of Service) Rules, 2006 deals with appointment of Panchayat Teacher. Rule 10 of 2006 Rules has specifically dealt with appointment on compassionate ground. For proper appreciation, it is relevant to quote Rule-10 of 2006 Rules. The Bihar Panchayat Elementary Teacher (Employment and Condition of Service) Rules, 2006 deals with appointment of Panchayat Teacher. Rule 10 of 2006 Rules has specifically dealt with appointment on compassionate ground. For proper appreciation, it is relevant to quote Rule-10 of 2006 Rules. 10- vuqdEik ds vk/kkj ij fu;kstu%& f'k{kd@f'k{kdsRrj dfeZ;ksa ds vkfJrksa dks vuqdEik ds vk/kkj ij fu/kkZfjr ;ksX;rk ds vuq:i iapk;r f'k{kd@iz[k.M f'k{kd ds in ij miyC/k fjfDr;ksa ds fo:) fu;kstu fd;k tk ldsxkA ;fn os Li"V :i ls blds fy, viuh lgefr nsrs gSaA fu;kstu ljdkj ds dkfeZd foHkkx }kjk vuqdEik ds vk/kkj ij fu;qfDr laca/kh fu/kkZfjr vU; 'kRrksZa ds vkyksd esa mijksDr lfefr;ksa }kjk fd;k tk ldsxkA vizf'kf{kr vkfJrksa dks fu;kstu ds ckn mUgsa vf/kdre 6 o"kksZa ds vUnj izf'k{k.k izkIr dj ysuk vfuok;Z gksxkA 18. The issue of compassionate appointment of dependant of Panchayat Teacher came for consideration in the case of State of Bihar v. Rajeev Ran Vijay Kumar (supra) and the Court has considered the line of judgment on compassionate appointment and arrived to a conclusion that the appointment on compassionate appointment is an exception to Article 14 and 16 of the Constitution of India. The general rule can be departed only on compelling circumstances, one such circumstance is death of bread winner. The Court has relied on the Full Bench judgment of Bank of Maharashtra and another vs. Manoj Kumar Deharia and another which is as follows: Para-10. From the enunciation of law laid down therein, it is clear that employment to Government and other public services should be open to all eligible candidates and by open competition on merit. This is an consonance with the mandate of Articles 14 and 16 of the Constitution. This general rule can be departed from only when compelling circumstances demand and one such circumstance is the death of the sole breadwinner of a family. However, it is held by the Supreme Court that appointment on compassionate ground is governed by Rules and Regulations or Scheme and taking into consideration instructions framed in this regard and the same should confirm to the requirement of Articles 14 and 16 of the Constitution. That apart, the principles clearly indicates that grant of compassionate appointment is not a right, vested in nature, available to a person. That apart, the principles clearly indicates that grant of compassionate appointment is not a right, vested in nature, available to a person. It is a benefit granted de hors the normal mode of recruitment and, therefore, it is to be granted strictly in accordance to the Scheme or Policy formulate in this regard. “31. It is, therefore, clear that compassionate appointment is not a vested right nor is it a hereditary right. Its grant is based on the Policies and scheme which are framed by carving out an exception to the General Rule governing public appointment. Once it is held that it is an exception to the General Rule and is granted in accordance with the Scheme or Rules formulated, then considerations to be made for grant of the appointment would be governed by the provision of the Rules or the Scheme and in that view of the matter, when the Rules and the Guidelines play a dominant role, considerations have to be made in accordance with the Rules and Scheme which are applicable at the time of grant.” 19. Here is the question before this Court that mother of the petitioner was Assist ant Teacher (Government servant) and recommendation was made by the District Compassionate Appointment Committee for the appointment of the petitioner on Class-III Government post, which was negated and offer was made for appointment as Panchayat Teacher. The Government of Bihar from time to time issued circulars for the purpose of giving compassionate appointment to the dependents of the Government employees who died in harness. 20. One such circular was issued vide Circular No. 12754 dated 12th July 1977 where it has been provided that on account of sudden death of Government servant in harness, the dependent of such deceased employee has to face severe financial crisis. The Government in order to save the family from penury has decided to give priority in appointment to one of the family members of such Government servant where there is no need to consult the Public Service Commission to the post of Class-III and Class-IV and provided rider. The financial condition of the family of deceased Government servant is not sound, the family member of the Government servant must possess qualification prescribed for the said post and his age is within prescribed age limit. This Circular came for consideration in Rajeev Ran Vijay Kumar (supra). The financial condition of the family of deceased Government servant is not sound, the family member of the Government servant must possess qualification prescribed for the said post and his age is within prescribed age limit. This Circular came for consideration in Rajeev Ran Vijay Kumar (supra). The Full Bench has held that the circular confers a right to be considered in respect of Class-III and Class-IV posts. The Court further held, it does not create any indefeasible right upon dependents or legal heir to claim the said post as a matter of right. This kind of appointment is an exception and dependent on the rule or the policy of Government on consideration of Circular, held, it is not possible to give benefit of such posts, the person cannot seek a writ of mandamus. 21. Another Circular No.6905 dated 17th October 2008 was issued by the Government of Bihar where it has been mentioned that the post of Prakhand/Panchayat Teachers is not a post under the Government and the District Compassionate Appointment Committee was directed not to make recommendation for appointment on such posts as it was beyond their jurisdiction. But subsequently another circular was issued on 22nd June 2009 laying down the principle for compassionate appointment of dependent of teaching and non-teaching employees to the post of teacher. By the said circular, the Circular No. 6905 dated 17th October 2008 issued by the Personnel and Administrative Reforms Department has been withdrawn and formulation has been made dependents of teaching/ non-teaching can be appointed on compassionate ground on the basis of prescribed qualification. The matter relating to appointment on compassionate ground for dependents of teaching and non-teaching staff cannot be considered by the District Compassionate Appointment Committee. In this connection, the Court held as follows: “Therefore, the matters related to the dependents of teaching and non-teaching staff cannot be considered by the District Compassionate Committees. Subsequently, the Officers of Human Resources Department shall not send the applications etc. of the dependents of teaching and non-teaching employees to the District Compassionate Committee. Such applications shall be submitted in the concerned employment unit (exchange) and the concerned unit (exchange) shall place them before the committee constituted under the said rules. If the applicants are fulfilling all the qualifications/ conditions required for such appointment and vacancies are available, then it would be necessary to appoint them within 30 (thirty) days. Such applications shall be submitted in the concerned employment unit (exchange) and the concerned unit (exchange) shall place them before the committee constituted under the said rules. If the applicants are fulfilling all the qualifications/ conditions required for such appointment and vacancies are available, then it would be necessary to appoint them within 30 (thirty) days. In case vacancies are not available for the time being, then the concerned officer of the Human Resources Development Department shall have to ensure such appointment within 30 (thirty) days of the availability of vacancy.” 22. The Full Bench was constituted as a doubt was raised about the correctness of the judgment reported in the case of Brajesh Kumar vs. State of Bihar & Others, 2010 (1) PLJR 339 . In the aforesaid judgment, in Para 10, the view of the single judge has been quoted as follows: “10. The notification dated 22.6.2009 issued by the Department of Personnel and Administrative Reforms, Government of Bihar dated 22.6.2009 will have application, in case of such teachers, who were either absorbed or appointed, on or after 1.7.2006. Such appointed teachers will come within the definitions of teacher under Rule 2(iv) of 2006 Rules, as they have been appointed following the procedure for appointment under Rule4. In case of such teachers only Rule 10 of 2006 Rules relating to compassionate appointment will have application and their legal heirs shall be appointed on Panchayat/ Prakhand Teachers posts in the fixed salary, since, the teachers appointed under 2006 Rules belong to a different class.” 23. From reading of that passage it appears that the Single Judge was of the view that Circular dated 22nd June 2009 will have application in cases of such teachers who were either absorbed or appointed on and after 1st July 2006. Such appointed teachers will be within the definition of teachers under Rule 2(iv) of the 2006 Rules. In nut shell the Court is of the view that Rule 10 of the 2006 Rules will be applicable to the dependents of teaching and non-teaching employees who were appointed in pursuance of 2006 Rules. But the Full Bench in view of Circular dated 22nd June 2009 has held legal heir or dependent having no legal right to be appointed on a Government post cannot claim it as a matter of right. But the Full Bench in view of Circular dated 22nd June 2009 has held legal heir or dependent having no legal right to be appointed on a Government post cannot claim it as a matter of right. The State Government has withdrawn the privilege that existed in the circular dated 12th July 1977 and has made an alternative arrangement that the teachers serving in the erstwhile Government schools, when die-in-harness, their legal heirs can be accommodated as Panchayat Teacher/Prakhand Teachers. The Court has further said the Government has power/authority to change the policy from time to time and that having been done no fault can be found with the appointment given to the appellant on the post of Prakhand Teacher. It is relevant to quote Para-27 of the judgment which is as follows: “Para-27: We have referred to the above circular in extenso only to appreciate that a legal heir or dependent having no legal right to be appointed to a Government post cannot claim it as a matter of right. The State Government has withdrawn the preference that existed in the circular dated 12.7.1977. It has been made an alternative arrangement that the teachers serving in the erstwhile Government schools, when die-in-harness, their legal heirs can be accommodated as Prakhand Teachers. The view expressed in Brajesh Kumar (supra) that they cannot be appointed in the said schools is really not a matter to be adverted to by this court as it is the policy decision of the Government to appoint such teachers in those schools by carving out an exception. As has been stated in many a decision, a compassionate appointment by its very nature is an exception and the same has to be treated as an exception for all purposes. Possibly, the matter would have been different had the rule been in force conferring a particular privilege on the legal heir or dependent of the Government teacher, who died-in-harness. That no being the position, the Government has the power/authority to change the policy from time to time and that having been done, no fault can be found with the appointment given to the appellant on the post of Prakhand Teacher in the Koilwar Block.” 24. Counsel for the petitioner has heavily placed reliance on two judgments of the Division Bench in the cases of Rakesh Kumar (supra) and Saket Susman (supra). Counsel for the petitioner has heavily placed reliance on two judgments of the Division Bench in the cases of Rakesh Kumar (supra) and Saket Susman (supra). In Rakesh Kumar case the fact was completely different where the District Compassionate Appointment Committee recommended for appointment to the post of Assistant Teacher in a Government School and pursuant to that recommendation some 11 (eleven) persons were appointed as Assistant Teachers in Government Schools but Rakesh Kumar and others (supra) were not offered appointment. Thereafter they filed CWJC No. 14391 of 2004 where the learned Single Judge allowed the petition. The appellants were directed to appoint them as Assistant Teachers in the Government Schools as per the recommendation made by the Committee. The said judgment was challenged in the LPA. The Division Bench was pleased to hold that as the petitioners did not possess minimum qualification prescribed by the National Council for Teachers Education they cannot be appointed as teachers on compassionate ground. But the Court directed the State of Bihar to consider the case of Rakesh Kumar and others for their appointment on compassionate ground to the appropriate posts. The Committee once again recommended for their appointment to non-teaching post (Class-III), they were not appointed rather they were given appointment as Panchayat Teachers as per 2006 Rules on consolidated pay on a condition that they will acquire the qualification of training within six years from the date of appointment which was challenged in the writ petition, the claim was made that in stead of appointing them as Panchayat Teacher, they should have been appointed on Class-III post. The claim was made that they were entitled to appointment in Government service on non-teaching post. The commitment made by the State in Para-17 was „…the stand of the respondents in the present case was not to deny the appointment of the dependents on any other equivalent post, but precisely not on the post of Assistant teacher as they were untrained. 25. In view of the undertaking the Single Judge directed to shift the petitioners within one month from the date of receipt/production of the order to any non-teaching Class-III post in the Government office. The same was challenged in appeal. 25. In view of the undertaking the Single Judge directed to shift the petitioners within one month from the date of receipt/production of the order to any non-teaching Class-III post in the Government office. The same was challenged in appeal. The Division Bench has considered the object of Rule 10 of 2006 Rules in following manner: “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.” 26. The Court further held as to whether the power conferred under Rule 10 of the Rules of 2006 can be availed of for appointment of the dependent of family member of a deceased Government servant in contradiction with the Panchayat servants. Rule 10 does not specifically provide as to whether said rule shall apply in case of employee of the State Government or Panc hayat or shall it apply in case of employees appointed under the said Rules. It is better to quote the relevant portion of Rakesh Kumar’s case (supra) which is as follows: “The Stage 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 dependent family member of a deceased Government servant in contradiction with the Panchayat servants. Rule 10 does not specifically provide whether the said Rule 10 shall apply in case of employees of the State Government or the Panchayat or shall it apply in case of employees appointed under the said Rules alone.” 27. Though that case was decided on its peculiar fact as direction was given for appointment on class-III post on the basis of statement made by the State on earlier occasion, the Court has shown doubt about the applicability of Rule 10 with regard to dependent of Government servants who died during service period. 28. Though that case was decided on its peculiar fact as direction was given for appointment on class-III post on the basis of statement made by the State on earlier occasion, the Court has shown doubt about the applicability of Rule 10 with regard to dependent of Government servants who died during service period. 28. Similar issue again came up for consideration in the case of Saket Suman (supra) LPA No. 600 of 2011 where the Court has again reiterated that Rule 10 of 2006 Rules is enabling provision. The State Government cannot be allowed to say that the writ petitioner cannot be appointed on compassionate ground other than the Panchayat/Block teachers and affirmed the view taken in Rakesh Kumar’s case (supra) and quoted the relevant part in verbatim. In both the judgments, the Full Bench judgment in Rajeev Ran Vijay Kumar (supra) was also under consideration. Another judgment that has been relied upon by the counsel for the petitioner is in the case of Vishwanath Pandey vs. State of Bihar, 2013 (3) PLJR (SC) 305 where the Hon’ble Supreme Court was considering the issue of compassionate appointment and has given direction to pay them regular pay scale. It is better to quote Para-9 of the judgment which is as follows: “Para-9: It is also not in dispute that after lifting of the ban, the District Compassionate Committee recommended the appellants appointment as Teacher on compassionate ground and he was appointed against the vacant post by District Superintendent of Education, Buxar. That order was neither rescinded nor modified by the Competent Authority on the premise that after coming into force of the 2006 Rules, the appellant could have been appointed only by the Panchayat Samiti on the post of Prakhand Teacher.. Therefore, the Division Bench of the High Court was not at all justified in recording a finding that the appellant could have been appointed only as a Prakhand Teacher by the Panchayat Samiti on fixed pay. Unfortunately, the Division Bench overlooked the fact that the appellant had been appointed as per the policy of compassionate appointment framed by the State Government and that policy does not envisage the appointment of the dependent of a deceased employee on fixed pay.” 30. Unfortunately, the Division Bench overlooked the fact that the appellant had been appointed as per the policy of compassionate appointment framed by the State Government and that policy does not envisage the appointment of the dependent of a deceased employee on fixed pay.” 30. On analysis of the above considerations, the Full Bench judgment has not dealt with as to whether Rule 10 of the 2006 Rules will be applicable even to the dependents of Assistant Teachers/Government servants who were not appointed in pursuance of 2006 Rules. But the Court in view of Circular dated 22nd June 2009 directed that the Government has withdrawn the Circular dated 22nd July 1977 has made an alternative arrangement for appointment of dependents of teaching and non-teaching staff can only be accommodated as Panchayat Teachers/Prakhand Teachers. But Rule 10 does not consider the situation in a circumstance when a dependent of the teaching and non-teaching staff does not qualify the minimum qualification provided under 2006 Rules, as it also creates a very anomalous situation that the teachers will get consolidated salary but in the same School, Class-III and Class-IV employees will get regular scale that too on higher side than that of the Panchayat/Prakhand teachers. 31. The 2006 Rules is silent with respect to appointment otherwise than Panchayat Teacher. In the present case, recommendation is on Cass-III post and the Division Bench has shown doubt about the applicability of Rule 10 with regard to dependent of Government servant. In this view of the matter, this Court directs the respondents to appoint the petitioner as per the recommendation made by the District Compassionate Appointment Committee within three months from the date of receipt/production of copy of this order. 32. Accordingly, the petition is allowed.