STATE OF BIHAR AND ORS. versus DILIP KUMAR AND ANR

[2019] 8 S.C.R. 1180

[2019] 8 S.C.R.

STATE OF BIHAR AND ORS.

DILIP KUMAR AND ANR

(Civil Appeal No. 5205 of 2019)

JULY 18, 2019

B[DR. DHANANJAYA Y CHANDRACHUD ANDINDIRA BANERJEE, JJ.]

Bihar Municipal Body Elementary Teachers (Employment andService Conditions) Rules, 2006: r. 10 – Appointment oncompassionate ground – On facts, respondents grantedCcompassionate appointment on the post of Nagar Shikshak in termsof r. 10 – Thereafter, issuance of instructions by the StateGovernment that posts of Panchayat Teachers and Block Teachersnot borne on the service of the Government, thus not within thejurisdiction of the Compassionate Appointment Committee toDrecommend appointments to those posts – Writ petition byrespondents seeking mandamus for their appointment on acompassionate basis to posts under the control of the StateGovernment – Allowed by the Single Judge of the High Court –Subsequently, issuance of instructions by the State Government thatthe Committee could make compassionate appointments to the postsEof panchayat teachers/block teachers/town teachers – DivisionBench upheld the order of the Single Judge – On appeal, held:High Court erred in directing the State Government to appoint therespondents in its regular service despite the fact that theirappointments were made after the 2006 Rules were brought intoFforce – Their case would be governed by the 2006 Rules –Respondents having accepted their appointments as NagarShikshaks, it was not open to them to assert, that they should beappointed in the service of the State Government – Also, no executiveinstruction could have superseded the Rules – Thus, the order ofthe High Court set aside, however, liberty granted to respondentsGto approach the State Government for suitable relief.

Allowing the appeal, the Court

HELD: 1.1 With the enforcement of the Bihar MunicipalBody Elementary Teachers (Employment and Service Conditions)Rules, 2006, Rule 10 governs the appointment of NagarH

Shikshaks on compassionate grounds. The respondents wereappointed on 12 April 2008 and 19 August 2008, after theenforcement of the 2006 Rules. Their appointments were in termsof Rule 10 of the 2006 Rules. The respondents accepted theappointments. The Single Judge, in placing reliance on theinstruction dated 17 October 2008, failed to notice the 2006 Rules.The Division Bench was of the view that withdrawal of theinstruction dated 17 October 2008 by the subsequent instructiondated 22 June 2009 would not obviate compliance with themandamus issued by the Single Judge on 15 May 2009. TheDivision Bench ignored the fact that both the respondents wereappointed in terms of Rule 10 of the 2006 Rules. Having acceptedthe appointment, it was not open to them to assert, as they did,that they should be appointed in the service of the Governmentof Bihar. Moreover, no executive instruction could havesuperseded the rules. [Para 9] [1186-G-H; 1187-A-B]

1.2 In the instant case the respondents have been appointedafter 1 July 2006. Their case would hence be governed by the2006 Rules. The observations contained in the decision of theDivision Bench in Mukesh’s case that the appellants who wereappointed after 01.07.2006, the date on which the Rules cameinto the force, are not entitled to claim appointment on regularpay scales will apply to the respondents in the instant case. TheHigh Court was manifestly in error in directing the Governmentof Bihar to appoint the respondents in its regular service despitethe fact that their appointments were made after the 2006 Ruleswere brought into force. The respondents duly accepted theirappointments as Nagar Shikshaks. However, liberty is grantedto the respondents to approach the State Government for suitablerelief in terms of the orders passed in Special Leave Petition (C)No 29655 of 2010 and in the same terms as ordered by this Courtin its judgment in Mukesh’s case. The judgment and order of theHigh Court is set aside. [Paras 11, 12] [1189-A-C]Mukesh v State of Bihar (2017) 5 SCC 383 - relied on.

Vishwanath Pandey v State of Bihar (2013) 10 SCC545 ; State of Bihar v Pooja Mishra SLP(C) No. 029453of 2015 ; State of Bihar v Sanjay Kumar SLP(C) No.038376 of 2016 – referred to.

ABC

[2019] 8 S.C.R.

ACase Law Reference

(2013) 10 SCC 545referred toPara 5(2017) 5 SCC 383relied on.Para 11

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5205Bof 2019.

From the Judgment and Order dated 30.03.2015 of the High Courtof Judicature at Patna in Letters Patent Appeal No. 1589 of 2009.

Manish Kumar, Gopal Singh, Advs. for the Appellants.

Abhijeet Sinha , Advs. for the Respondents.CThe Judgment of the Court was delivered byDR. DHANANJAYA Y CHANDRACHUD, J.

1. Division Bench of the High Court of Judicature at Patna byits judgment dated 30 March 2015 affirmed the view of the learnedDSingle Judge, and directed the grant of compassionate appointment tothe respondents on regular scale of pay in the services of the StateGovernment and not on the post of Nagar Shikshaks to which theywere appointed. This direction was based on an instruction dated17 October 2008 issued by the Government of Bihar, which has sinceEbeen withdrawn. Aggrieved by order of the Division Bench, the State ofBihar is in appeal.

2. The father of the first respondent died in harness on 7 May2006, while in employment as an Assistant Teacher in primary school.The mother of the second respondent was also an Assistant Teacher inFa primary school when she died in harness on 9 September 2006. On 25January 2008 and 27 June 2008, the District Compassionate AppointmentCommittee[1] considered the request of the respondents for compassionateappointment. On 12 April 2008, the first respondent was offeredemployment on the post of Nagar Shikshak under Rule 10 of the BiharMunicipal Body Elementary Teachers (Employment and ServiceGConditions) Rules, 2006[2]. On 19 August 2008, the second respondentwas offered appointment as Nagar Shikshak on the basis of therecommendation of the DCAC. On 17 October 2008, the Personneland Administrative Reforms Department of the Government of Bihar,

1 DCACH2 2006 Rules

issued an instruction stating that the posts of Panchayat Teachers andBlock Teachers are not borne on the service of the government, henceit is not within the jurisdiction of the DCAC to recommend appointmentsto those posts. The instruction stated thus:

“..that it has been clear from the perusal of the minutes of themeeting of few District Compassionate Committees that therecommendation has been made for the appointment against thepost of Panchayat Teacher, Block teacher, town teacher on thecompassionate ground by the District Compassionate Committee.The post of the Panchayat Teacher, Block Teacher are not thepost of the Government and making recommendation for theappointments on such post on the compassionate ground does notfall under the jurisdiction of the compassionate committee.

As per the direction, I have to say that it should be ensured thatthe recommendation be not made for the appointment against theappointment on post of the Panchayat Teacher, Block Teacher.If any such recommendation has been made then it should bereconsidered by the District Compassionate Committee andrecommendation be ensured as per the circular issued by this.”

3. The respondents instituted writ proceedings under Article 226before the High Court, seeking mandamus for their appointment on acompassionate basis to posts under the control of the State Government.On 15 May 2009, learned Single Judge of the High Court accepted thegrievance of the respondents that the posts of Nagar Shikshak to whichthey were appointed were not government posts with regular pay scalebut were posts with fixed emoluments. This, in the view of the learnedSingle Judge, was contrary to the Government Instruction dated 17October 2008. In consequence, while allowing the writ petition, the learnedSingle Judge directed that the recommendations of the DCAC beimplemented “strictly” in accordance with the instruction dated 17October 2008.4. Subsequently, on 22 June 2009, the State Government issued afresh instruction which clarified that it is permissible for the Committeeconstituted under the Rules to make compassionate appointments to theposts of panchayat teachers/block teachers/town teachers. The relevantpart of the instruction is extracted below:

A“..the provision has been made as per the Rule 10 of BiharPanchayat Primary Teacher Employment and Service ConditionsRules, 2006 :-

“10 Employment/Appointment on the basis of compassionateground:- Employment/appointment against the vacancy availableBon the post of Panchayat Teacher/Block Teacher could be madein accordance with the eligibility prescribed on the basis of thecompassionate ground in respect of the dependents of the teachingor non-teaching staff, if he gives the consent clearly for this :-

In view of the terms and conditions prescribed for the appointment,Cthe appointment on the compassionate ground by the aforesaidcommittee, in view of the Circular of the Personnel &Administrative Department of the Government. It will becompulsory for untrained dependents to obtain the training withina period of six years for the date of appointment”.

DSuch provisions has also been made under Bihar PanchayatPrimary Teacher Employment and Service Conditions Rules, 2006.In the aforesaid provisions, the meaning of the word committee iswith respect to the committee constituted under the Rule. In thisway, it is clear that the appointment of the dependent of theteaching and non-teaching employees can be made on the basisEof compassionate basis on the post of Panchayat Teacher/BlockTeacher/town Teacher on the regular pay by the committeeconstituted under the aforesaid rules.”

5. Letters Patent Appeal was filed by the state against thedecision of the Single Judge. The Division Bench, by its judgment datedF30 March 2015, held that since the death of the employees while inservice had taken place before the 2006 Rules were enforced, and thecircular/instruction dated 17 October 2008 clarified that compassionateappointments were required to be made to post in the service of thegovernment, the writ petition had been correctly allowed. The DivisionGBench held that the instruction dated 22 June 2009, recalling the earliercircular/instruction, would not take away the effect of the mandamusissued by the Single Judge. The High Court also observed that inVishwanath Pandey v State of Bihar[3](“Vishwanath Pandey”), thisCourt had affirmed the view of Single Judge of the High Court that

3 (2013) 10 SCC 545H

where the occurrence had taken place prior to the enforcement of theRules of 2006, the appointment would have to be made as teacherunder the government.

6. Learned counsel appearing on behalf of the appellants submittedthat compassionate appointments are governed by the 2006 Rules. UnderRule 10, Nagar Shikshaks are to be appointed on compassionategrounds. Moreover, Rule 20 supersedes all previous rules, resolutions,orders and instructions. In the present case, it was urged that therespondents consented to their appointment and joined the post of NagarShikshak in terms of Rule 10. Hence, the High Court was not justifiedin directing that their services to be shifted from the posts of NagarShikshak to posts under the control of the Government. In the facts ofthis case, it has been urged that the offers of appointment to therespondents as Nagar Shikshaks were made prior to the instructiondated 17 October 2008. Moreover, the appointments as Nagar Shikshaksbeing in accordance with the 2006 Rules, the High Court was not justifiedin directing the state to take over the services. In this context, reliancehas been placed on judgment rendered by two Judge Bench of thisCourt in Mukesh v State of Bihar[4](“Mukesh”) on 3 April 2017,where the decision of this Court in Vishwanath Pandey has beenconsidered and distinguished.7. On the other hand, learned counsel appearing on behalf of therespondents supported the judgment of the High Court for the reasonswhich weighed in the grant of relief. Learned counsel submitted thatLetters Patent Appeals filed by the State against similar decisions of thelearned Single Judges of the High Court were dismissed, and this Courtdismissed the Special Leave Petitions filed under Article 136 of theConstitution by the State. In this context, reliance has been placed onthe orders passed by this Court in:

(i) State of Bihar v Pooja Mishra[5](“Pooja Mishra”); and

(ii) State of Bihar v Sanjay Kumar[6](“Sanjay Kumar”).

The above Special Leave Petitions were dismissed on 9 October2015 and 11 November 2016 respectively. It was urged that this Courtshould follow the same course of action by dismissing the civil appeal.

4 (2017) 5 SCC 383

5 SLP(C) No. 029453 of 2015

6 SLP(C) No. 038376 of 2016

A8. The 2006 Rules were notified on 1 July 2006. Rule 3contains categorisation of Elementary teachers:

“3. Category of Town Elementary Teachers – There shall betwo category of Town Elementary Teachers :-

(A) Nagar Shikshak (Trained)B

(B) Nagar Shikshak (Untrained)”

Rule 8 provides for conditions of eligibility. Rule 9 provides for theprocedure for appointment. Rule 10 contains the following provision:

“10. Appointment on compassionate ground :- The employmentCmay be made of the dependents of teaching/ non-teachingemployees on compassionate ground as per determinedqualification on the post of Town Teacher (Trained) and TownTeacher (Un-Trained) against the available vacancies, if he givesmanifestly his consent for this. The appointment may be made byDaforesaid Committee in the light of other conditions concernedwith appointment on compassionate ground by the PersonnelDepartment of Government. After the employment, un-traineddependents shall acquire training within maximum 6 years.”

Rule 20, which contains repeal and savings provision, is in thefollowing terms:E

“20. Repeal & Saving :- (i) From the date of enforcement of thisRules, all the previous Rules, Resolutions, Orders and Instructionsregarding the employment of Primary Teachers/ Physical Teachersin urban area shall be deemed repealed.

F(ii) But notwithstanding this repeal no effect shall be made on anyearlier Rules, Resolution, Order, Instruction etc. regarding thesalary etc. and Service Conditions of the teachers.”

9. With the enforcement of the 2006 Rules, Rule 10 governs theappointment of Nagar Shikshaks on compassionate grounds. TheGrespondents were appointed on 12 April 2008 and 19 August 2008, afterthe enforcement of the 2006 Rules. Their appointments were in termsof Rule 10 of the 2006 Rules. The respondents accepted the appointments.The learned Single Judge, in placing reliance on the instruction dated 17October 2008, failed to notice the 2006 Rules. The Division Bench wasof the view that withdrawal of the instruction dated 17 October 2008 byH

the subsequent instruction dated 22 June 2009 would not obviatecompliance with the mandamus issued by the Single Judge on 15 May2009. The Division Bench ignored the fact that both the respondentswere appointed in terms of Rule 10 of the 2006 Rules. Having acceptedthe appointment, it was not open to them to assert, as they did, that theyshould 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 hasplaced reliance on the orders of this Court dated 9 October 2015 and 11November 2016 dismissing the Special Leave Petitions filed under Article136 by the State in the cases of Pooja Mishra and Sanjay Kumar. Theabove orders, by which this Court dismissed the Special Leave Petitionsagainst the decision of the Patna High Court, will not aid the submissionsof the respondents. This is for the simple reason that subsequently, atwo Judge Bench of this Court in Mukesh, in its decision dated 3 April2017 considered the provisions of the 2006 Rules as well as the precedenton the subject. This Court extracted from the decision in VishwanathPandey (on which reliance has also been placed by the impugnedjudgment of the Division Bench of the High Court). In Mukesh’s case,this Court held:

“By the impugned judgment, Division Bench of the High Courtcorrectly held that the Appellants have no legal right to seekappointment on compassionate grounds. Compassionateappointments are not source of recruitment and they are madeto provide succour to the family of an employee who dies inharness. In the State of Bihar compassionate appointments aregoverned by instructions issued by the Government. Some of theAppellants were recommended for appointment to Class III postson regular basis by the District Compassionate Committee.However, they were appointed as Prakhand Teachers/PanchayatShikshaks/ Nagar Shikshaks, etc. on fixed pay. The Appellantscould not have been appointed on fixed pay and they are entitledfor appointment to either on Class III or Class IV posts on regularbasis or payment of regular pay scale in the posts of as PrakhandTeachers/Panchayat Shikshaks/Nagar Shikshaks, etc. in whichthey are working at present. Some of the Appellants who wererecommended for appointment to Class III posts but wereappointed as Prakhand Teachers/Panchayat Shikshaks/Nagar

[2019] 8 S.C.R.

AShikshaks, etc. on fixed pay are similarly situated to VishwanathPandey and they are entitled to be appointed on regular payscale.”

In regard to those of the appellants who were appointed after1 July 2006 (the date of enforcement of the 2006 Rules), this CourtBobserved:

“The other Appellants who were appointed after 01.07.2006 arenot entitled to the relief granted to those who were recommendedfor appointment to Class III or Class IV posts prior to that date. AFull Bench of the Patna High Court in State of Bihar and Othersv. Rajeev Ran Vijay Kumar, reported in (2010) 3 PLJR 294 (FB),held that the dependents of deceased Government employees donot have legal right to be appointed in Government posts. Theirappointments on compassionate grounds shall be in accordancewith Bihar Panchayat Primary Teacher (Employment and ServiceConditions) Rules, 2006 (hereinafter referred to as the ‘Rules’)which came into force w.e.f. 01.07.2006. Rule 10 of the saidRules provides for employment on compassionate grounds to thedependents of teaching/ non-teaching employees against availablevacancies of Panchayat Teachers/Block Teachers/PrakhandTeachers, etc. Such appointments can be made only on fixedpay by the committee constituted under the Rules. The Appellantswho have not been recommended for appointment to ClassIII or Class IV posts prior to 01.07.2006 are not coveredby Vishwanath Pandey’s case (supra). On the other hand, theyare squarely covered by the judgment of Full Bench of the PatnaHigh Court. They are not similarly situated to those who wererecommended for appointment to Class III posts prior to01.07.2006. The Appellants, who were appointed after01.07.2006, 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 theHigh Court of Patna was challenged before this Court. The saidSLP was withdrawn with liberty granted to the petitioners thereinto approach the Government for suitable relief.”

(Emphasis supplied)

11. Admittedly, in the present case as well, the respondents havebeen appointed after 1 July 2006. Their case would hence be governedby the 2006 Rules. The above observations contained in the decision ofthe Division Bench in Mukesh will apply to the respondents in the presentcase. The High Court was manifestly in error in directing the Governmentof Bihar to appoint the respondents in its regular service despite the factthat their appointments were made after the 2006 Rules were broughtinto force. The respondents duly accepted their appointments as NagarShikshaks. However, we grant liberty to the respondents to approachthe State Government for suitable relief in terms of the orders passed inSpecial Leave Petition (C) No 29655 of 2010[7] and in the same terms asordered by this Court in its judgment dated 3 April 2017 in Mukesh.

12. The civil appeal is allowed. The judgment and order of theHigh Court dated 30 March 2015 is set aside. There shall be no order asto costs.

13. Application for impleadment is disposed of. Pendingapplication(s), if any, are also disposed of.

Nidhi Jain

Appeal allowed.

7 Rajiv Ranvijay Kumar v State of Bihar