Dismissed

The State of Bihar and Anr. v. Saket Suman and Ors.

Patna HC9 Aug 2012L.P.A/600/2011

Case brief

AI extract

What is this about?

Full Bench held Rule 10 of 2006 is enabling, not mandatory. State communication restricting compassionate appointments to Panchayat posts is invalid. Appeal dismissed in limine; writ petition allowed below.

What did the court decide?

State communication restricting appointments to Panchayat posts quashed; appeal dismissed in limine; interlocutory application disposed of.

The State of Bihar and Anr. Vs Saket Suman and… — Pension and Retirement Benefits | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Letters Patent Appeal No.600 of 2011

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Civil Writ Jurisdiction Case No. 18673 of 2009

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With

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Interlocutory Application No.2734 of 2011

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Letters Patent Appeal No.600 of 2011

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======================================================

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The State of Bihar through the Principal Secretary, Human Resources Development Department, Govt. of Bihar, Patna

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The Regional Deputy Director of Education, Purnea Division, Purnea

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.... .... Respondents-Appellants

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Versus

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Saket Suman son of Sri Chandradeep Narain Singh resident of village + P.O. + P.S.- Dhamdaha, District- Purnea

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Shahab Alam S/o Late Asfarul Alam resident of village- Rangpura, P.S. Dhamdaha, District- Purnea

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Ranjan Kumar son of Late Dhirendra Kumar resident of village- Bira Chandpur, P.S. Falka, District- Katihar

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Pramod Mishra son of Late Jalandhar Mishra resident of MohallaMotibagh, Kishanganj, P.S. + Dist.- Kishanganj.

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.... .... Petitioners-Respondents

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====================================================== Appearance :

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For the Appellants : Mrs. Nivedita Nirvikar, G.P.-3

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For the Respondents : Mr. Rajendra Prasad Singh, Senior Advocate Mr. Onkar Kumar, Advocate Mr. Naval Kishor Singh, Advocate Mr. Mukesh Kumar Singh, Advocate

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======================================================

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CORAM: HONOURABLE THE CHIEF JUSTICE

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and

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HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH

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ORAL ORDER

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(Per: HONOURABLE THE CHIEF JUSTICE)

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Patna High Court LPA No.600 of 2011 (4) dt.09-08-2012

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2 / 4

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9-08-2012

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Feeling aggrieved by the judgment and order dated 26^th November 2010 passed by the learned single Judge in C.W.J.C. No. 18673 of 2009, the respondent State of Bihar has preferred this Appeal under Clause 10 of the Letters Patent.

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The matter at dispute is the compassionate employment claimed by the writ petitioners.

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The writ petitioners are the dependent family members of the Government Teachers who died in harness in the years 2004 and 2005. Pursuant to the death of the parent, each petitioner applied for compassionate employment under then prevalent scheme for compassionate employment. Their applications were considered by the District compassionate Appointment Committee, Purnea in 2006. Each writ petitioner was found to be eligible for appointment in Class III service on compassionate ground. Although, their claims were approved and the Committee had recommended their case for appointment on Class III post as early as in 2006, no order of appointment was issued to the writ petitioners. Feeling aggrieved, the writ petitioners filed above C.W.J.C. No. 18673 of 2009 under Article 226 of the Constitution for a direction to the respondents to appoint each writ petitioner in Class III service on compassionate ground as recommended by the Committee.

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The petition was contested by the State Government. According to the State Government, the writ petitioners being the family members of the deceased Teachers they could be appointed as Panchayat Teacher as envisaged by Rule 10 of the Bihar Panchayat Elementary Teacher (Employment and Service Condition) Rules, 2006 (hereinafter referred to as „the Rules of 2006‟). Reliance was placed on the Full Bench judgment of this

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Patna High Court LPA No.600 of 2011 (4) dt.09-08-2012

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3 / 4

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Court in the matter of The State of Bihar and others v. Rajeev Ran Vijay Kumar , {2010(3) PLJR 294}. The learned single Judge has considered the aforesaid judgment in the matter of Rajeev Ran Vijay Kumar ; has allowed the writ petition and has issued direction to issue appointment orders in favour of the writ petitioners. Therefore, this Appeal.

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Learned advocate Mrs. Nivedita Nirvikar has appeared for the appellants. She has vehemently argued that in view of the aforesaid Full Bench judgment in the matter of Rajeev Ran Vijay Kumar and Rule 10 of the Rules of 2006, the writ petitioners cannot now be appointed on compassionate ground on any post other than the Panchayat Teachers. In support thereof she has relied upon the Government communication dated 22^nd June 2009 issued by the Under Secretary to the Government of Bihar, Personnel and Administrative Reforms Department. Under the said communication the concerned authorities have been issued instructions that in view of Rule 10 of the Rules of 2006, appointment of the dependent members of the family of the deceased teacher or non-teaching staff of the schools can be made as Panchayat Teacher or Prakhand Teacher alone and not on any other post.

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We may note here that the aforesaid communication dated 22^nd June 2009 had been issued in answer to the clarification sought in respect of implementation of Rule 10 of the Rules of 2006. We are afraid, the said communication/clarification is contrary to the language of the said Rule 10. The said Rule 10 does not envisage that such dependent members cannot be appointed on compassionate ground on any post other than the post of Panchayat Teacher or Block Teacher. Rule 10 of the Rules of 2006 was subject matter of consideration

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Patna High Court LPA No.600 of 2011 (4) dt.09-08-2012

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4 / 4

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by this Court in the matter of The State of Bihar and others v. Rakesh Kumar and others (L.P.A. No. 734 of 2011 decided on 12^th March 2012). This Court has categorically held, “ In our view, Rule 10 of the Rules of 2006 is an enabling provision and not a mandatory provision. … … … In our opinion, it is quite debatable whether the power conferred under Rule 10 of the Rules of 2006 can be availed of for appointment of the dependant family member of a deceased Government servant in contradistinction with the Panchayat servants. Rule 10 does not specifically provide whether the said Rule 10 shall apply in case of the employees of the State Government or the Panchayat or shall it apply in case of the employees appointed under the said Rules alone. ”

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Rule 10 of the Rules of 2006 being an enabling provision, the State Government cannot be allowed to say that the writ petitioners and such others cannot be appointed on compassionate ground on the posts other than the Panchayat Teacher/Block Teacher. The very foundation on which the writ petitioners have been denied compassionate employment in spite of their being eligible for compassionate employment is erroneous.

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Learned single Judge has rightly allowed the writ petition. No case for interference is made out. Appeal is dismissed in limine.

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Interlocutory Application stands disposed of.

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(R.M. Doshit, CJ)

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(Ahsanuddin Amanullah, J)

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Pawan/-

The State of Bihar and Anr. v. Saket Suman and Ors.

Case brief

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The State of Bihar and Anr. v. Saket Suman and Ors.

Case brief

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