1. Leave granted.
2. The appellant is aggrieved by the judgment of the Division Bench of the Patna High Court declaring that he is entitled only to fixed pay admissible to a "Prakhand Teacher" and not the regular pay scale.
3. The appellants father, Dadan Pandey, who was then serving as Assistant Teacher in Primary School Akodi, Block-Brahmpur, District Buxar died on 14.10.2004 leaving behind his widow, three sons and two daughters. The appellant submitted application dated 5.2.2005 for his appointment on compassionate ground. After some time, he filed CWJC No. 7258 of 2005 for issue of a mandamus to the concerned authority to decide his application. The writ petition was disposed of by the learned Single Judge of the High Court with a direction that the appellants prayer for appointment on compassionate ground be decided within a maximum period of twelve weeks.
4. In compliance of the direction given by the High Court, District Compassionate Committee, Buxar recommended the appellants case for appointment on a Class-III post. However, he was not given appointment because of the ban imposed by the State Government.
5. On 1.7.2006, Deputy Secretary to the Government, Human Resources Development Department sent communications to all District Magistrates and other officers to appoint eligible persons on the post of teachers. That letter reads as under:
6. In view of the aforesaid communication, District Compassionate Committee, Buxar again considered the appellants case and recommended that he be appointed as a Teacher. Thereafter, District Superintendent of Education, Buxar issued order dated 25.11.2006 whereby he appointed the appellant as a Teacher in Girls Middle School, Raghunathpur, Block-Brahmpur on fixed pay. The relevant portions of that order are extracted below:"Letter No. 8/B3-102/02 Ma. 1078
Government of Bihar
Human Resources Development Department
From
Braj Kishore Pathak
Deputy Secretary to the Government
To
All District Magistrate
All Regional Deputy Director of Education
All District Superintendent of Education
Patna, dated 01/07/2006
Subject: In respect of appointment of dependents of Teachers on the basis of compassion on the post of Teacher
Sir,
In respect of the above-mentioned subject a ban was imposed on appointment of dependents of teachers on the post of teacher on compassionate grounds. For this reason information has been received that eligible trained dependents are being appointed on Class III and IV posts at several places. In this regard requests have been received by the Government from various sources that the aforesaid circulars may be reconsidered. Since for last several years the system for training teachers has been dormant in the State, therefore after careful consideration it has been decided in this regard that dependents who are trained and have requisite qualifications can be appointed on compassionate grounds in case they fulfill the conditions mentioned in the relevant circulars of the Personal and Administrative Reforms Department of the Government. In special circumstances is the dependent has minimum qualification, which is intermediate or equivalent for primary teachers, but has not received training, he shall be granted 5 years time for training after appointment.
Kindly steps may be taken in the light of the aforesaid and the concerned cases may be disposed of. If any dependent has been appointed on other Class III and IV posts despite his being trained, then steps should be taken for his appointment on the post of teacher.
Yours faithfully
Braj Kishore Pathak
Deputy Secretary to the Government
Memo No. 1078/Patna, dated 01/07/2006
Copy to- Director, Primary Education/Director, Intermediate Education and all Deputy Development Commissioner for information and necessary action.
Yours faithfully
Braj Kishore Pathak
Deputy Secretary to the Government"
7. After joining the post, the appellant made representations for payment of salary in the regular pay scale. The respondents did not accept his claim on the ground that in view of the Bihar Primary Teacher (Appointment and Service Condition) Rules, 2006, the appellant could have been appointed on fixed pay only and he is not entitled to regular pay scale. The appellant then filed CWJC No.7218 of 2007 and prayed for issue of a direction to the respondents to make correction in the letter of appointment so as to enable him to claim salary in the regular pay scale. The learned Single Judge allowed the writ petition by observing that the 2006 Rules cannot be invoked for denying regular pay scale to the appellant who had been appointed as Teacher pursuant to the direction given by the High Court in the backdrop of the claim lodged by him in 2005 and the recommendations made by the District Compassionate Committee."Office of District Superintendent of Education, Buxar Office Order
In the light of order dated 29/06/2005 passed by Honble High Court in CWJC No. 7258/05 entitled Vishwanath Pandey versus State Government and others and in accordance with the decision taken by the District Compassionate Committee, Buxar in meeting dated 29/11/2005 the name of the petitioner Shri Vishwanath Pandey was recommended for appointment on a Class III post. Thereafter in this regard the recommendation for appointment was returned on the ground of non-availability of post by the then Regional Deputy Director of Education, Patna Division, Patna. The District Education Officer vide letter No. 307 dated 02/09/2006 informed the District Compassionate Committee, Buxar about non-availability of vacant Class III post in the District and requested for reconsideration of claim for compassionate appointment. In the light of the aforesaid in a decision taken upon reconsideration by the District Compassionate Committee in its meeting dated 25/09/2006 bearing memo number 721 dated 27/09/2006 the petitioner Shri Pandey was recommended to be appointed on the post of teacher.
In accordance with it, in the light of decision/recommendation made by District Compassionate Committee in its meeting dated 25/09/2006 and the direction contained in letter No.2822 dated 17/04/1995 issued by the Personnel and Administrative Reforms Department, Bihar and letter No.894 dated 10/08/2006, letter No.1120 dated 21/09/2006, letter No.1434 dated 16/11/2006 and letter No.1495 dated 23/11/2006 issued by the Regional Deputy Director of Education, Patna Division, Patna Shri Vishwanath Pandey dependent son of late Dadan Pandey, deceased, Primary School, Akori, Block-Brahmpur, District- Buxar, Village & Post-Pokhraha, P.S. Bagengola, District-Buxar, who has been asked for his consent by letter No.699 dated 19/10/2006, is appointed on the vacant post of Teacher in Girls Middle School, Raghunathpur, Block- Brahmpur [Buxar] on the fixed pay admissible by the State Government with other benefits admissible in future and is posted from the date of joining on the following conditions:
1. The candidate will have to submit his original educational qualification certificate, date of birth certificate and health certificate issued by Civil Surgeon-cum-Chief Medical Officer.
2. If the certificates produced by the appointed candidate are found to be not correct, his appointment shall be cancelled automatically.
3. The candidate will have to join the posting but then 15 days of issuance of the appointment letter.
4. Shri Vishwanath Pandey shall be responsible for taking care of the dependents of late Dadan Pandey, ex-Teacher. If this is not done, steps will be taken to terminate his service.
5. The payment will be made only after verification of the letter of appointment and educational qualification certificates.
6. The newly appointed teacher will have to compulsorily obtain teacher training within 6 years.
The concerned Controlling Officer is directed to ensure the joining of the newly appointed Teacher immediately and send compliance report to the undersigned.
District Superintendent of Education, Buxar"
8. The respondents carried the matter to the Division Bench. The letters patent appeal filed by them was allowed by the Division Bench of the High Court which held that after coming into force of the 2006 Rules, only the Panchayat Samiti is competent to make appointment of teachers (known as "Prakhand Teachers") in the Primary Schools located in the rural areas and a Prakhand Teacher is not entitled to regular pay scale.
9. We have heard learned counsel for the parties and scrutinized the records. It is not in dispute that even though the District Compassionate Committee had made recommendations on 29.11.2005 that the appellant may be appointed on a Class-III post, he was not given appointment because of the ban imposed by the State Government. It is also not in dispute that after lifting of the ban, the District Compassionate Committee recommended the appellants appointment as Teacher on compassionate ground and he was appointed against the vacant post by District Superintendent of Education, Buxar. That order was neither rescinded nor modified by the Competent Authority on the premise that after coming into force of the 2006 Rules, the appellant could have been appointed only by the Panchayat Samiti on the post of Prakhand Teacher. Therefore, the Division Bench of the High Court was not at all justified in recording a finding that the appellant could have been appointed only as a Prakhand Teacher by the Panchayat Samiti on fixed pay. Unfortunately, the Division Bench overlooked the fact that the appellant had been appointed as per the policy of compassionate appointment framed by the State Government and that policy does not envisage the appointment of the dependent of a deceased employee on fixed pay.
10. For the reason aforesaid, the appeal is allowed, the impugned judgment is set aside and the order passed by the learned Single Judge in CWJC No.7218 of 2007 is restored. The respondents are directed to implement that order within a period of three months from the date of receipt/production of copy of this order.
