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In this case of State of Bihar and Ors VERSUS Dilip Kumar and Anr, 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direction was based on an instruction dated 17 October 2008 issued by the Government of Bihar, which has since been withdrawn.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. 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 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 respondents instituted writ proceedings under Article 226 before the High Court, seeking a mandamus for their appointment on a compassionate basisto 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. 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.
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. Subsequently appellant filed an appeal in the Supreme Court, the court after hearing the matter held “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. Application for impleadment is disposed of. Pending application(s), if any, are also disposed of.”
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