Employees appointed after 1/7/2006 for the posts listed under Bihar Municipal Body Elementary Teachers (Employment and Service Conditions) Rules, 2006 are not borne on the service of the government.

Lahari Gurrala | Symbiosis Law School, Hyderabad | 26th December 2019

 STATE OF BIHAR AND ORS…….. Appellants
vs
DILIP KUMAR AND ANR………… Respondents
Civil Appeal No 005205 of 2019
(Arising out of SLP(C)No 33282 of 2016) 

Facts of the Case:

• 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, 2006 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 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 “
• 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.
• 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. The High Court also observed that the in Vishwanath Pandey v State of Bihar (“Vishwanath Pandey”), this Court had affirmed the view of a Single Judge of the High Court that where the occurrence had taken place prior to the enforcement of the Rules of 2006, the appointment would have to be made as a teacher under the government.
• Aggrieved by the order of the Division Bench, the state of Bihar has filed an appeal in the Supreme Court and place reliance through Mukesh v State of Bihar (“Mukesh”), where the decision of this Court in Vishwanath Pandey has been considered and distinguished. it was also held that, 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.

Issue:

• Whether the posts of Nagar Shikshak to which the respondents were appointed should be categorised as government post with regular pay scale or not government posts with a regular pay scale but were posts with fixed emoluments?

Held:

• It was held that, as the respondents were appointed after 1 July 2006. Their case would hence be governed by the 2006 Rules. Alongside, the decision of the Division Bench in Mukesh will apply to the respondents in the present case.
• It was also held that the 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, we grant liberty to the respondents to approach the State Government for suitable relief in terms of the orders passed in Special Leave Petition and in the same terms as ordered by this Court in its judgment dated 3 April 2017 in Mukesh.
• The civil appeal is allowed. The judgment and order of the High Court 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.