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2021 DIGILAW 727 (JHR)

Manoj Kumar Jha v. State of Jharkhand

2021-09-08

DEEPAK ROSHAN

body2021
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties through Video Conferencing. 2. The instant writ application has been preferred by the petitioner praying therein for quashing of the order as contained in Memo No. 377 dated 06.02.2012 passed by the Respondent No. 5 by which the claim of the petitioner for approval of the appointment on compassionate ground has been rejected. The petitioner has further prayed for a direction upon the respondent authorities to immediately and forthwith approve the appointment of the petitioner and fix the pay scale with effect from 18.09.1995; the date of joining, as the petitioner is working as Assistant Teacher duly appointed by the Management Committee but in the absence of necessary approval; the petitioner is not getting full salary and other benefits. 3. Mr. Samir Prasad, learned counsel for the petitioner draws attention of this Court towards the impugned order which speaks that in view of the Letter No. 1635 dated 04.08.1994; employees of Minority Government Aided Institution will not fall under the category of government employees, as such the benefit of compassionate appointment is not applicable in view of the notification which is annexed as Annexure-3 to the writ application. He further draws attention towards the judgment passed in the case of Najmussabah vs. State of Bihar and Others [C.W.J.C. No. 1122 of 1999] and submits that Clause 11 of the circular has been discussed in this order and finally a direction was issued to the concerned respondent that benefit of Circular dated 05.10.1991 shall be extended to the petitioner of that case. He further submits that the said order passed by the writ Court was challenged by the respondent-State before the Division Bench which was also dismissed. As such, the issue as to whether the teachers of Minority Government Aided Institution are Government servant and will get the benefit of compassionate appointment in view of the Circular dated 05.10.1991 has attained finality; however, after going through the impugned order, it would transpire that the same ground has again been taken by the respondents that the employees of Minority Government Aided Institution are not government servants. He further submits that the respondents pursuant to the order passed by this Court on 27.07.2021 filed a supplementary counter affidavit dated 25.06.2021 and came with a new ground that without following the procedure; appointment has been given to the petitioner as he has not been appointed by the Managing Committee and only appointment letter has been issued by the Head Master of the School. He further submits that the impugned order speaks of advertisement regarding appointment on compassionate ground which is unheard in service jurisprudence, inasmuch as, for compassionate appointment there is no rule for advertisement for any post. In view of the aforesaid facts and settled law that the teachers of Minority Government Aided Institution will get the benefits of compassionate appointment, the impugned order (Annexure-10) should be quashed and the respondents be directed to approve the appointment of the petitioner and fix the salary accordingly with effect from the date of joining i.e. 18.09.1995 as the petitioner is continuously working as Assistant Teacher without any break. 4. Mr. O.P. Tiwari, learned counsel for the respondent-State vehemently opposed the prayer of the petitioner and submits that proper procedure was not adopted in the case of petitioner, inasmuch as, the Management Committee has not recommended the name of the petitioner and only the Principal of the School has certified that the petitioner is appointed, which is against the procedure of compassionate appointment. In support of his contention he relied upon paragraph Nos. 8, 9 and 10 of the supplementary counter affidavit dated 25.06.2021 which reads as under: “8. That it is most humbly stated herein that the case of the petitioner is not on the same footing of the order dated 16.04.2001 passed in C.W.J.C. No. 1122 of 1999 by the Hon’ble Court. In the paragraph 10 of the said order the decision of the Director, Primary Education Bihar Patna is quoted as follows: “If the appointment of the petitioner has been made by the Managing Committee after following the procedure of the Compassionate appointment then the necessary approval be granted and direction be issued for payment of Salary.” 9. In the paragraph 10 of the said order the decision of the Director, Primary Education Bihar Patna is quoted as follows: “If the appointment of the petitioner has been made by the Managing Committee after following the procedure of the Compassionate appointment then the necessary approval be granted and direction be issued for payment of Salary.” 9. That it is also most humbly stated herein that it is the settled law that Public Employment must be as set-down by the constitutional scheme of public employment and law and rule made there under by adhering due procedure from bare perusal of Annexure-2 to the writ application it transpires that procedure of the alleged compassionate appointment is not followed. The petitioner purported to have been working with effect from 28.10.1991 and subsequently he is elevated to the compassionate appointee on 18.09.1995. This contention proves conclusively that due procedure of the compassionate appointment relating to the petitioner never followed. It is surprising to know through paragraph 8 to the writ application that the petitioner has made specific averment that “the appointment of the petitioner has been sent before the respondents for approval in term of the rule and guide line on 18.10.1992” i.e. 3 years before the alleged compassionate appointment. 10. That it is also most humbly stated herein that in the order contained in Memo No. 377 dated 06.02.2012 is it specifically mentioned that in the alleged appointment of the petitioner by the Non Government Minority School, required procedure is not adhered to and the said fact is obvious from the statement made in foregoing paragraphs. Above all the Letter No. 1635 dated 04.08.1994 of the Director, Primary Education Bihar, Patna is very much specific on the point that the teachers of Aided Minority Schools are not government teacher as such benefit of compassionate appointment cannot be extended to them it is also settled law that compassionate appointment is not a matter of right.” Relying upon the aforesaid averments, he submits that since the appointment of the petitioner was not in accordance with the procedure as such no interference is required in this case and the writ application deserves to be dismissed. 5. 5. Having heard learned counsel for the parties and after going through the relevant documents annexed with the respective affidavits and the averments made therein; it appears that the impugned order contains three reasons for rejecting the claim of the petitioner. For the sake of brevity; the relevant paragraph of the impugned order is quoted herein-below: “W.P. (S) No. 5111/2008 ^^funs'kd] ÁkŒf'kŒ fcgkj] iVuk ds i=kad 1635 fnukad 04-08-1994 esa Li"Vr% funs'k fn;k x;k gS fd lgk;rk ÁkIr ¼vYila[;d½ ÁkjfEHkd fo/kky;ksa ds f'k{kd ljdkjh lsod ugha gSA vr% muds vkfJr dks lsokdky esa muds e`R;q ds i'pkr vuqdEik ds vk/kkj ij fu;qfDr ugha dh tk ldrh gSA fu;qfDr i= ds voyksduksijkUr ik;k x;k fd Jh >k fd fu;qfDr vfu;fer :Ik ls fcuk foKkiu ,oa foHkkxh; fu;e dk ikyu djrs gq, dh x;h gS] tcfd foHkkxh; fu;e ds i=kad 709 fnukad 04-03-1993 esa vYila[;d fo|ky; esa fu;qfDr dh ÁfØ;k fu/kkZfjr gSaA vr% mijksDr rF;kyksd esa Jh eukst dqekj >k dk fu;qfDr vuqeksnu laca/kh ÁLrko dks vLohd`r fd;k tkrk gSaA** Thus, the first reason is that in view of the Letter No. 1635 dated 04.08.1994, employees of Minority Government Aided Institution will not fall under the category of government employees and as such the benefit of compassionate appointment is not applicable to them. The second ground is that the appointment of the petitioner on compassionate ground was irregular, inasmuch as, there was no advertisement and procedure of departmental rules has not been followed in spite of the fact that in view of the departmental letter dated 04.03.1993, there is a proper procedure for appointment in Minority School. 6. In nutshell, the respondent-State ignored the decision passed by this Court in the case of Najmussabah (supra) wherein it has been held that the management of the School is vested in the Management Committee and clause 11 of the circular provides that the benefits of the circular for appointment on compassionate ground available to the government employee, shall also apply in all local bodies, Corporation and non-government institutions. For brevity paragraph No. 8 and 10 of the judgment passed in the case of Najmussabah (Supra) is quoted herein-below: “8. The circular dated 5.10.1991 has been annexed as annexure 11 to the reply to the counter affidavit filed by the petitioner. For brevity paragraph No. 8 and 10 of the judgment passed in the case of Najmussabah (Supra) is quoted herein-below: “8. The circular dated 5.10.1991 has been annexed as annexure 11 to the reply to the counter affidavit filed by the petitioner. Clause 11 of the circular provides that the benefits of the circular for appointment on compassionate ground available to the government employee, shall also apply in all local bodies, Corporation and non-government institutions. The Managing Committee, after following the procedures provided in the circular, appointed the petitioner on compassionate ground in 1993 and the matter was forwarded to the respondents for approval. The District Superintendent of Education, by his letter referred to above, requested the Director, Primary Education, Bihar, Patna to take necessary decision for payment of salary. Respondent No. 3 vide his letter dated 20.03.1996, directed respondent no. 4, the D.S.E. Hazaribagh to give approval if the appointment has been made after following the procedures of appointment on compassionate ground. 10. On the bass of the affidavits filed by the parties and the documents annexed therewith the admitted facts which emerge are that the school in question is a minority Government aided institution and the management of the school is vested in the Managing Committee. It is also not disputed that the Managing Committee considered the case of the petitioner for appointment on compassionate ground in accordance with the procedures provided in the circular and appointed her in 1993 subject to approval of the Education department. It is also clear that the Director, Primary Education, Bihar Patna took a decision that if the appointment of the petitioner has been made by the Managing Committee after following the procedures of compassionate appointment then necessary approval be granted and direction be issued for payment of salary.” By going through the notification which is annexed as Annexure-3 to the writ application and the judgment referred to herein above; it clearly transpires that the benefit of the circular for appointment on compassionate ground which is available to the government employee shall also apply in all local bodies, Corporation and non government institution. Thus, the first ground of rejection that “Minority Government Aided Institution will not fall under the category of government employee and benefit of compassionate appointment is not applicable to them” has no legs to stand in view of the judgment referred to hereinabove. 7. Thus, the first ground of rejection that “Minority Government Aided Institution will not fall under the category of government employee and benefit of compassionate appointment is not applicable to them” has no legs to stand in view of the judgment referred to hereinabove. 7. So far as the other grounds that procedure for appointment in the case of petitioner has not been followed by the Management Committee as there was no advertisement in the newspaper and departmental rules were not followed. In this regard, if one go through the order passed by the Writ Court in the earlier writ application filed by this petitioner; it clearly transpires that petitioner has categorically stated that the Management Committee of the school did take a decision on 18.09.1995 for giving appointment to the petitioner on compassionate ground. On taking such decision, the matter was referred to District Superintendent of Education. For brevity, the order passed in W.P. (S) No. 5111 of 2008 is quoted herein-below: “Heard the parties. Learned counsel appearing for the petitioner submits that the petitioner’s father, late Ram Ballabh Jha, who was working as an Assistant Teacher in a minority school, died in harness in the year 1991. Thereupon the petitioner being the son of the deceased employee filed an application for appointment on compassionate ground. The Managing Committee of the school did take a decision on 18.09.1995 for giving appointment to the petitioner on compassionate ground. On taking such decision, the matter was referred to District Superintendent of Education, Dhanbad for approval of the decision, but the District Superintendent of Education, Dhanbad-respondent No. 5 has not taken any decision in this matter, though it is pending before him since last six years, as a result of which the petitioner is being denied appointment on compassionate ground. On taking such decision, the matter was referred to District Superintendent of Education, Dhanbad for approval of the decision, but the District Superintendent of Education, Dhanbad-respondent No. 5 has not taken any decision in this matter, though it is pending before him since last six years, as a result of which the petitioner is being denied appointment on compassionate ground. In view of the fact and circumstances as stated above, this writ application is disposed of with a direction to the respondent No. 5 to take a decision in the matter as aforesaid within a period of 6 weeks from the date of receipt/production of a copy of this order.” By going through the aforesaid order, it appears that the matter was heard and the specific statement of the petitioner that the Management Committee did take decision on 18.09.1995 has not been controverted by the State counsel and now by taking a new ground during course of argument that Annexure-2 is only the certificate, has no legs to stand. Thus, the grounds taken by the respondent in the impugned order is perverse. 8. Before parting, it is also necessary to deal with argument of the counsel for the State that the appointment of the petitioner on compassionate ground was irregular, inasmuch as, there was no advertisement and procedure of departmental rule has not been followed. In this regard a specific query was made from the learned counsel of the respondent-State to show any instance as to whether any advertisement has ever been issued in the case of compassionate appointment; the answer was in negative. Learned counsel for the respondent-State though tries to impress this Court by referring a letter dated 04.03.1993 and submits that procedure for appointment in Minority Government Aided Institution has been prescribed, but after going through the aforesaid letter it does not transpire that in the case of compassionate appointment any advertisement is required to be issued, because the purpose of compassionate appointment itself is an exception to the general rule of appointment. 9. At this stage it is pertinent to mention here that it is an admitted case of both the parties that the petitioner is still working and he has never been terminated. 10. In view of the aforesaid discussions and findings and the judgment referred to hereinabove; the instant writ application, is hereby, allowed. 9. At this stage it is pertinent to mention here that it is an admitted case of both the parties that the petitioner is still working and he has never been terminated. 10. In view of the aforesaid discussions and findings and the judgment referred to hereinabove; the instant writ application, is hereby, allowed. The impugned order as contained in Memo No. 377 dated 06.02.2012, is quashed and set aside. The respondent No. 5 is directed to issue necessary order of approval forthwith and fix the pay scale of the petitioner in accordance with law after verification of record. 11. Since the matter is very old, the entire exercise shall be completed within a period of three months from the date of receipt/production of copy of this order and the entire monetary benefits which will accrue pursuant to the decision; shall be paid to the petitioner within a further period of 8 weeks. 12. The petitioner is also at liberty to approach respondent No. 5 along with relevant documents so that the matter can be settled at the earliest. 13. With the aforesaid observations and directions, the instant writ application stands allowed and pending I.A. if any, also stands disposed of.