Nuray Parwaij v. The State Of Bihar

First of all, Rule 10 of the Bihar Panchayat Teachers Appointment Rules, 2006 itself envisage that the dependant of any teacher, after obtaining his consent, can be given compassionate appointment on the post of Prakhand/Panchayat Teacher Rule 10 of the 2006 Rules reads as follows:- ^^10- vuqdEik ds vk/kkj ij fu; kstu%& f'k{kd@f'k{kdsRrj dfeZ;ksa ds vkfJrksa dks vuqdEik ds vk/kkj ij fu/kkZfjr ;ksX;rk ds vuqw:i iapk;r f'k{kd@iz[k.M f'k{kd ds in ij miyC/k fjfDr;ksa ds fo:} fu; kstu fd;k tk ldsxkA ;fn os Li"V :i ls blds fy, viuh lgefr nsrs gSA fu; kstu ljdkj ds dkfeZd foHkkx }kjk vuqdEik ds vk/kkj ij fu; qfDr laca/kh fu/kkZfjr vU; 'kRrksaZ ds vkyksd esa mijksDr lfefr; ksa }kjk fd;k tk ldsxkA vizf'kf{kr vkfJrksa dks fu; kstu ds ckn mUgasa vf/kdre 6 o"kksZa ds vUnj izf'k{k.k izkIr dj ysuk vfuok;Z gksxkA**

The reliance placed by the petitioner on the circular dated 22.6.2009 is also wholly misplaced inasmuch as the scope of the said Circular was considered by the Full Bench of this Court in the Full Bench Judgment of this Court (to whim I am also a party) in the case of State of Bihar V. Rajeev Ran Vijay Kumar reported in 2010(3) PLJR 294 wherein it was held as follows:- "26. From Rule 4 onwards, there is a procedure for appointment of teachers. Rule 10 deals with appointment on compassionate basis. We are really concerned with Rule 2. On a perusal of the scheme, especially Rule 2(ii), it is clear as crystal that the schools have been taken over by the 4 Government. The responsibility of management and control of the schools has been shifted to the Panchayat Raj Institution. The State Government by the circular dated 22.6.2009 has laid down the procedure for appointment of the dependents of the teaching non-teaching employees compassionate basis to the post of teacher. The said circular, which is in Hindi, on being translated into English, reads as follows:- "Letter No. 3/Anu-17/2005 Ka 2955/ Government of Bihar Personnel & Administrative Reforms Department From, Saryug Prasad, Deputy Secretary to the Government, To All Departments, All the Heads of the Department. All the Divisional Commissioner. All the District Officer-cum-Chairman. District Com passionate Committee. Patna (15), 22 June 2009. Subject:- As regard making appointment of dependants teaching non-teaching employees to the post of teacher on compassionate ground. Sir, I am directed to say that keeping in view3 the direction contained in letter no. 6905 dated

17.10.08 of Personnel and Administrative Reforms Department and letter no. 2209 dated 28.12.06 of 5 Human Resources Development Department, a few District Officers have sought guidelines with reference to appointment of dependants of teaching non-teaching employees compassionate ground.

After deliberation with the Human Resources Development Department on subject, it became clear that a provision in Rule 10 of Bihar Panchayat Primary Teacher (Employment and Service Condition) Rules 2006 has been made as follows:- "10. Employment on the basis of compassionate ground- The dependants of teaching/non-teaching employees could be appointed on compassionate ground against the available vacancies of Panchayat Teachers/Block Teachers in conformity with the prescribed qualification, if they give their clear consent for it. Appointment could be made on the basis of compassionate ground by the aforesaid committees in the light of other conditions prescribed appointment Personnel and Administrative Reforms Department of the Government. It shall be essential for untrained dependants to obtain training within a maximum period of 6 years after appointment. " There is also a similar provision contained in Bihar Nagar Primary Te4achers (Employment Service Conditions) Rules, 2006. the word used for Committees' the aforesaid 6 provision means the committees constituted in the said rules. "

3. In this way it is clear that dependants of teaching/non-teaching employees could be appointed against the posts of Panchayat Teacher/Block Teacher/Town Teacher, etc. on a fixed pay by the committees constituted in the aforesaid rules.

4. Therefore, the matters related to the dependants of teaching and non-teaching staff cannot be considered by the District Compassionate Committees. Subsequently, the Officers of Human Resources Department shall not send the applications, etc. of the dependants of teaching and non- teaching employees the District Compassionate Committee. Such applications shall be submitted concerned employment unit (exchange) and the concerned unit (exchange) shall place them before the committee constituted under the said rules, if the applicants are fulfilling all the qualifications/conditions required appointment vacancies are available then it would be necessary to appoint them within 30 (thirty) days. In case vacancies are not available for the time being, then the concerned officer the Human Resources Development Department shall have to ensure such appointment within 30 (thirty) days of the availability of vacancy. 7

Human Resources Development Department has accorded the consent in respect of aforesaid instructions.

The aforesaid letter no. 6905 dated

17.10.08 Personnel Administrative Reforms Department cancelled herewith.

You are requested to ensure that all the Officers working under you have been apprised of the aforesaid instructions. Yours faithfully, Sd/- (Illegible)

22.6.09 (Saryug Prasad) Deputy Secretary to the Government. "

We have referred to the above circular in extenso only to appreciate that a legal heir or dependant having no to be appointed to a government post cannot claim it as a matter of right. The State Government has withdrawn the preference that existed in the circular dated 12.7.1977. It has made an alternative arrangement teachers serving in the erstwhile Government schools, when die-in-harness, their legal heirs can be accommodated as Prakhand Teachers. The view expressed in Brajesh Kumar (supra) that they cannot be appointed in the said schools in really not a matter to be adverted to by this Court as it is the policy decision of the 8 Government to appoint such teachers in those schools by carving out an exception. As has stated in many a decision, a compassionate appointment by its very nature is an exception and the same has to be treated as an exception for all purposes. Possibly, the matter would have been different had the rule been in force conferring a particular privilege legal heir or dependant of Government teachers, who died-in-harness. That not being the position, the Government has the power/authority to change the policy from time to time and that having been done, no fault can be found with the appointment given to the appellant on the post of Prakhand Teacher in the Koilwar Block.

5. Moreover when the petitioner has himself given consent for appointment Prakhand teacher in terms of Rule 10 of the Panchayat Teachers Appointment Rules, 2006, he cannot be now allowed to raise the question for being appointed in Government Service.

6. This aspect of the matter has also been settled by the Apex Court in the case of State of Rajasthan Vs. Umrao Singh reported in (1994) 6 SCC 560 wherein it has been held that there is not such principle as "endless compassion" and the claim will stand extinguished when one of the post is offered and 9 accepted and the person so appointed cannot claim to be appointed on another post. That being so, application is wholly misconceived and is, accordingly, dismissed. A.Ahmad/- (Mihir Kumar Jha, J)