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direction was based on an instruction dated 17 October 2008 issued by the Government of Bihar, which has since been withdrawn.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 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 Committee, (DCAC) 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, 2006, (2006 Rules) . 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."
(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.;