STATE OF BIHAR AND ORS.versusDILIP KUMAR AND ANR

1180                       [2019]
                SUPREME COURT     8 S.C.R. 1180
                               REPORTS                     [2019] 8 S.C.R.


 A                        STATE OF BIHAR AND ORS.
                                          v.
                            DILIP KUMAR AND ANR
                          (Civil Appeal No. 5205 of 2019)
                                   JULY 18, 2019
 B
                [DR. DHANANJAYA Y CHANDRACHUD AND
                           INDIRA BANERJEE, JJ.]
             Bihar Municipal Body Elementary Teachers (Employment and
       Service Conditions) Rules, 2006: r. 10 – Appointment on
       compassionate ground – On facts, respondents granted
 C
       compassionate appointment on the post of Nagar Shikshak in terms
       of r. 10 – Thereafter, issuance of instructions by the State
       Government that posts of Panchayat Teachers and Block Teachers
       not borne on the service of the Government, thus not within the
       jurisdiction of the Compassionate Appointment Committee to
 D     recommend appointments to those posts – Writ petition by
       respondents seeking mandamus for their appointment on a
       compassionate basis to posts under the control of the State
       Government – Allowed by the Single Judge of the High Court –
       Subsequently, issuance of instructions by the State Government that
       the Committee could make compassionate appointments to the posts
 E
       of panchayat teachers/block teachers/town teachers – Division
       Bench upheld the order of the Single Judge – On appeal, held:
       High Court erred in directing the State Government to appoint the
       respondents in its regular service despite the fact that their
       appointments were made after the 2006 Rules were brought into
 F     force – Their case would be governed by the 2006 Rules –
       Respondents having accepted their appointments as Nagar
       Shikshaks, it was not open to them to assert, that they should be
       appointed in the service of the State Government – Also, no executive
       instruction could have superseded the Rules – Thus, the order of
       the High Court set aside, however, liberty granted to respondents
 G
       to approach the State Government for suitable relief.
             Allowing the appeal, the Court
             HELD: 1.1 With the enforcement of the Bihar Municipal
       Body Elementary Teachers (Employment and Service Conditions)
       Rules, 2006, Rule 10 governs the appointment of Nagar
 H
                                       1180
  STATE OF BIHAR AND ORS. v. DILIP KUMAR AND ANR                      1181


Shikshaks on compassionate grounds. The respondents were              A
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 Single Judge, in placing reliance on the
instruction dated 17 October 2008, failed to notice the 2006 Rules.
                                                                      B
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      C
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. [Para 9] [1186-G-H; 1187-A-B]
       1.2 In the instant case the respondents have been appointed    D
after 1 July 2006. Their case would hence be governed by the
2006 Rules. The observations contained in the decision of the
Division Bench in Mukesh’s case that the appellants who were
appointed after 01.07.2006, the date on which the Rules came
into the force, are not entitled to claim appointment on regular
pay scales will apply to the respondents in the instant case. The     E
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, liberty is granted          F
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 2010 and in the same terms as ordered by this Court
in its judgment in Mukesh’s case. The judgment and order of the
High Court is set aside. [Paras 11, 12] [1189-A-C]
                                                                      G
      Mukesh v State of Bihar (2017) 5 SCC 383 - relied on.
      Vishwanath Pandey v State of Bihar (2013) 10 SCC
      545 ; State of Bihar v Pooja Mishra SLP(C) No. 029453
      of 2015 ; State of Bihar v Sanjay Kumar SLP(C) No.
      038376 of 2016 – referred to.
                                                                      H
1182               SUPREME COURT REPORTS                      [2019] 8 S.C.R.


 A                              Case Law Reference
       (2013) 10 SCC 545                 referred to            Para 5
       (2017) 5 SCC 383                  relied on.             Para 11
             CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5205
 B     of 2019.
             From the Judgment and Order dated 30.03.2015 of the High Court
       of 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.
 C
                The Judgment of the Court was delivered by
                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
 D     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
 E     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 second respondent was also an Assistant Teacher in
 F     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
 G     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,
       1
           DCAC
 H     2
           2006 Rules
   STATE OF BIHAR AND ORS. v. DILIP KUMAR AND ANR                             1183
        [DR. DHANANJAYA Y CHANDRACHUD, J.]

issued an instruction stating that the posts of Panchayat Teachers and        A
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               B
      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          C
      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              D
      reconsidered by the District Compassionate Committee and
      recommendation be ensured as per the circular issued by this.”
      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.       E
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             F
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        G
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:

                                                                              H
1184               SUPREME COURT REPORTS                         [2019] 8 S.C.R.


 A              “..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
 B              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,
 C              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”.
 D              Such provisions has also been made under Bihar Panchayat
                Primary Teacher Employment and Service Conditions Rules, 2006.
                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
 E              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
 F     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
 G     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
       3
           (2013) 10 SCC 545
 H
    STATE OF BIHAR AND ORS. v. DILIP KUMAR AND ANR                            1185
         [DR. DHANANJAYA Y CHANDRACHUD, J.]

where the occurrence had taken place prior to the enforcement of the          A
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                 B
grounds. Moreover, Rule 20 supersedes all previous rules, resolutions,
orders and instructions. In the 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        C
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 2008. 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   D
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        E
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       F
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”).
      The above Special Leave Petitions were dismissed on 9 October           G
2015 and 11 November 2016 respectively. It was urged that this Court
should 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                                                   H
1186             SUPREME COURT REPORTS                           [2019] 8 S.C.R.


 A           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
             (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
 C           may be made of the dependents of teaching/ non-teaching
             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
 D           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:
 E
             “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.
 F           (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.”
              9. With the enforcement of the 2006 Rules, Rule 10 governs the
       appointment of Nagar Shikshaks on compassionate grounds. The
 G     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
 H
   STATE OF BIHAR AND ORS. v. DILIP KUMAR AND ANR                            1187
        [DR. DHANANJAYA Y CHANDRACHUD, J.]

the subsequent instruction dated 22 June 2009 would not obviate              A
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,
                                                                             B
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      C
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         D
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:
      “By the impugned judgment, a Division Bench of the High Court
      correctly held that the Appellants have no legal right to seek         E
      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         F
      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    G
      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
                                                                             H
1188            SUPREME COURT REPORTS                          [2019] 8 S.C.R.


 A           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
 B     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
 C           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’)
 D           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
 E           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 covered by the judgment of Full Bench of the Patna
             High Court. They are not similarly situated to those who were
 F           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
 G           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)

 H
      STATE OF BIHAR AND ORS. v. DILIP KUMAR AND ANR                           1189
           [DR. DHANANJAYA Y CHANDRACHUD, J.]

       11. Admittedly, in the present case as well, the respondents have       A
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
                                                                               B
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.            C
       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.
      13. Application for impleadment is disposed of. Pending
application(s), if any, are also disposed of.                                  D


Nidhi Jain                                                   Appeal allowed.


                                                                               E




                                                                               F




                                                                               G




7
    Rajiv Ranvijay Kumar v State of Bihar                                      H