whether the order – 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. is correct?

In Mukesh’s case, this Court held: 8 “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 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 9 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) 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.

1

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No 005205 of 2019

(Arising out of SLP(C)No 33282 of 2016)

State of Bihar and Ors ..Appellants

VERSUS

Dilip Kumar and Anr ..Respondents

J U D G M E N T

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

REPORTABLE

2

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, 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.”

1 DCAC

2 2006 Rules

3

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:

“..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”.

4

Such provisions has also been made under Bihar Panchayat

Primary Teacher Employment and Service Conditions Rules,

  1. 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 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

3

(2013) 10 SCC 545

5

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 2009. 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”).

4

(2017) 5 SCC 383

5 SLP(C) No. 029453 of 2015

6 SLP(C) No. 038376 of 2016

6

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.

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/ nonteaching 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.”

7

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

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:

8

“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 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

9

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)

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.

7 Rajiv Ranvijay Kumar v State of Bihar

10

13 Application for impleadment is disposed of. Pending application(s), if any,

are also disposed of.

……………………………………………..J

[Dr Dhananjaya Y Chandrachud]

……………………………………………..J

[Indira Banerjee]

New Delhi;

July 18, 2019