Navin Kumar Mandal vs The State Of Jharkhand Through The ...
2021 Latest Caselaw 1067 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          W.P. (S) No.2042 of 2020
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Navin Kumar Mandal, aged about 27 years, son of Late Ramdayal Mandal, resident of Village Pargodih, P.O. Susni & P.S. Deodaad, District Godda .... .... .... Petitioner Versus

1. The State of Jharkhand through the Principal Secretary, School Education and Literacy Department, having office at Project Building, P.O. & P.S. Dhurwa, Town and District Ranchi

2. The Deputy Commissioner-cum-Chairman, District Education Establishment Committee, Godda, P.O. & P.S. Godda, District Godda

3. The District Superintendent of Education, Godda, P.O. & P.S. Godda, District Godda .... .... .... Respondents

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

For the Petitioner : Mr. Manoj Tandon, Advocate For the Respondents-State : Mr. Devesh Krishna, S.C. (Mines)-III

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04/03.03.2021 Heard Mr. Manoj Tandon, learned counsel for the petitioner and Mr. Devesh Krishna, learned counsel for the respondents-State.

This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

The petitioner has preferred this writ petition for quashing the order dated 03.06.2020 whereby the petitioner has been reverted from the post of Teacher to the post of Clerk, resultantly, his Grade Pay has been reduced from 4200 to 1900. The petitioner was directed to stop the teaching work. The prayer for quashing of order dated 20.06.2020 has also been made whereby the petitioner has been relieved to join the office of District Education Officer, Godda. Payment of salary for the month of November, 2019 onwards is another prayer in the writ petition.

The father of petitioner died in harness on 16.02.2015 while working as a Teacher in Primary School, Baghmara (Purab Tola) in the District of Godda. The petitioner has passed Matriculation with 76% marks. The petitioner has also passed Intermediate with 60.5% marks. The petitioner did Teachers Training also from Bihar School Examination Board. The petitioner thereafter appeared in Jharkhand Teacher Eligibility Test (J-TET) and was granted a certificate of that test. By Resolution dated 16.01.2008, the compassionate appointment in the School Education and

Literacy Department (earlier known as "Human Resource Development Department"), Jharkhand was being governed. The said Resolution was amended by memo no.945 dated 09.05.2013 issued by Human Resource Development Department, Government of Jharkhand. In terms of Clause 2 of this Resolution, earlier Resolution dated 16.01.2008 was replaced with a direction that if a candidate for compassionate appointment fulfils the qualification of National Council for Teachers guidelines dated 23.08.2010, he is entitled for appointment on the post of Teacher on compassionate ground.

Mr. Manoj Tandon, learned counsel for the petitioner submits that the petitioner applied on compassionate ground on 19.04.2018 (Annexure- 7). The Establishment Committee considered the case of the petitioner for appointment on compassionate ground and issued the appointment letter to the petitioner on 23.07.2018 contained in Annexure-8 on the post of Teacher. The petitioner joined on the post of Teacher on 24.07.2018. Thereafter, the petitioner started working. After verification of the documents of the petitioner, the salary was issued. Pursuant to new incumbent as District Superintendent of Education, Godda salary of the petitioner was stopped w.e.f. November, 2019. By the impugned order dated 03.06.2020, the petitioner has been reverted to the post of Clerk and by impugned order dated 20.06.2020, the petitioner has been relieved to join the office of District Education Officer, Godda. Aggrieved with this, the petitioner has filed the present writ petition.

Learned counsel appearing for the petitioner submits that in the light of earlier two Resolutions contained in Annexure 1 and 2, the petitioner is fulfilling the criteria for appointment on compassionate ground. He submits that Establishment Committee in the light of those Circular, considered the case of the petitioner and issued appointment letter. Pursuant thereto, the petitioner has joined and worked for two years. He submits that ground for relying Circular dated 01.12.2015 which has been introduced from that date, the case of the petitioner has been re-examined and the petitioner has been reverted back to the post of Clerk. He submits that father of the petitioner died on 16.02.2015. Thus, the case of the petitioner was required to be considered in the light of the earlier Circular. There cannot be retrospective operation of the Circular dated 01.12.2015. He submits that case of the petitioner is fully covered in view of judgment delivered in the case of Canara Bank & Another Versus M. Mahesh

Kumar reported in 2015 7 SCC 412. Para 17 to 24 of the judgment is quoted hereinbelow:-

"17. Applying these principles to the case in hand, as discussed earlier, the respondent's father died on 10-10-1998 while he was serving as a clerk in the appellant Bank and the respondent applied timely for compassionate appointment as per the scheme "Dying in Harness Scheme" dated 8-5-1993 which was in force at that time. The appellant Bank rejected the respondent's claim on 30-6-1999 recording that there are no indigent circumstances for providing employment to the respondent. Again on 7-11-2001, the appellant Bank sought for particulars in connection with the issue of the respondent's employment. In the light of the principles laid down in the above decisions, the cause of action to be considered for compassionate appointment arose when Circular No. 154 of 1993 dated 8-5-1993 was in force. Thus, as per the judgment referred in Jaspal Kaur case, the claim cannot be decided as per 2005 Scheme providing for ex gratia payment. The Circular dated 14-2-2005 being an administrative or executive order cannot have retrospective effect so as to take away the right accrued to the respondent as per Circular of 1993.

18. It is also pertinent to note that 2005 Scheme providing only for ex gratia payment in lieu of compassionate appointment stands superseded by the 2014 Scheme which has revived the scheme providing for compassionate appointment. As on date, now the scheme in force is to provide compassionate appointment. Under these circumstances, the appellant Bank is not justified in contending that the application for compassionate appointment of the respondent cannot be considered in view of passage of time.

19. Insofar as the contention of the appellant Bank that since the respondent's family is getting family pension and also obtained the terminal benefits, in our view, is of no consequence in considering the application for compassionate appointment. Clause 3.2 of the 1993 Scheme says that in case the dependant of the deceased employee to be offered appointment is a minor, the Bank may keep the offer of appointment open till the minor attains the age of majority. This would indicate that granting of terminal benefits is of no consequence because even if terminal benefit is given, if the applicant is a minor, the Bank would keep the appointment open till the minor attains majority.

20. In Balbir Kaur v. SAIL, while dealing with the application made by the widow for employment on compassionate ground applicable to the Steel Authority of India, contention raised was that since she is entitled to get the benefit under Family Benefit Scheme assuring monthly payment to the family of the deceased employee, the request for compassionate appointment cannot be acceded to. Rejecting that contention in para 13, this Court held as under: (SCC p. 503) "13. ... But in our view this Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the breadearner can only be absorbed by some lump sum amount being made available to the family -- this is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the breadearner and insecurity thereafter reigns and it is at that juncture if some lump sum amount is made available with a compassionate appointment, the grief-stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the breadearner, but that would undoubtedly bring some solace to the situation."

21. Referring to SAIL case, the High Court has rightly held that the grant of family pension or payment of terminal benefits cannot be

treated as a substitute for providing employment assistance. The High Court also observed that it is not the case of the Bank that the respondents' family is having any other income to negate their claim for appointment on compassionate ground.

22. Considering the scope of the scheme "Dying in Harness Scheme 1993" then in force and the facts and circumstances of the case, the High Court rightly directed the appellant Bank to reconsider the claim of the respondent for compassionate appointment in accordance with law and as per the Scheme (1993) then in existence. We do not find any reason warranting interference.

23. So far as the cases in Civil Appeal No. 266 of 2008 and Civil Appeal No. 267 of 2008 are concerned, they are similar and those respondents are similarly placed and the appeals preferred by the Bank are liable to be dismissed. The appellant Bank is directed to consider the case of the respondents in Civil Appeals Nos. 266 and 267 of 2008.

24. In the result, all the appeals preferred by the appellant Bank are dismissed and the appellant Bank is directed to consider the case of the respondents for compassionate appointment as per the Scheme which was in vogue at the time of death of the employee concerned. In the facts and circumstances of the case, we make no order as to costs."

On the other hand, Mr. Devesh Krishna, learned counsel for the respondents-State submits that while the application of the petitioner was considered, the new Circular dated 01.12.2015 was already in force. He submits that when the mistake was pointed out, the Establishment Committee again examined the decision and reverted the petitioner to the post of Clerk in the light of Circular dated 01.12.2015. He submits that this aspect of the petitioner has been referred to the larger Bench of Hon'ble Supreme Court in the case of SBI Versus Sheo Shankar Tewari reported in (2019) 5 SCC 600.

Having heard learned counsel for the petitioner and after going through the materials available on record, it transpires that father of petitioner died on 16.02.2015. The Circular of compassionate appointment with regard to the concerned Department contained in Annexure 1 and 2 stipulates that the compassionate appointment can be made on the post of Teacher. The petitioner is fulfilling the rest of the criteria as disclosed in the Circular dated 16.01.2008 and Circular dated 09.05.2013. Considering these two Circulars, the petitioner was appointed on the post of Teacher. The Circular dated 01.12.2015 came later on. However, at the time of considering the application of the petitioner, the said Circular was also there in spite of that Establishment Committee decided to apply the above Circulars in the case of the petitioner and appointment on the post of Teacher on compassionate ground. The Circular dated 01.12.2015 also speaks on the ground of compassionate ground. The said Circular has not

been made effective retrospectively. It has been submitted at Bar that many persons have been allowed to work on the post of Teacher who have been appointed on compassionate ground where the petitioner is single one who has been reverted back to the post of Clerk. This aspect of the matter has been considered by Hon'ble Supreme Court in the case of Canara Bank & Another Versus M. Mahesh Kumar (Supra). The earlier order referred by Hon'ble Supreme Court to a larger Bench in the case of SBI Versus Sheo Shankar Tewari (supra) wherein earlier order has not been stayed and the judgment are still holding the field. In the referred judgment, one of the issue was with regard to the further notification by the Bank whereby compassionate appointment has been withdrawn and only ex gratia was allowed and in the light of that Circular, the Hon'ble Supreme Court referred the matter to the larger Bench to decide as to whether the earlier Circular in which compassionate appointment has been allowed which has been withdrawn by way of ex gratia on the later on Circular and in the light of that reference has been made as to which Circular will apply at the time of consideration of appointment on compassionate ground. This is lacking in the case in hand. On the compassionate appointment, all the three circulars are intact and considering that the Circular dated 01.12.2015 will not apply retrospectively as father of petitioner died on 16.02.2015 and at that time, the Circular contained in Annexure 1 and 2 were in force. These two Circulars are meant for especially Human Resources Department where the Circular contained in Annexure 4 dated 01.12.2015 is general. Thus, the case of the petitioner will govern by Annexure 1 and 2. The petitioner has already worked for two years and others have been allowed to work who have been appointed on compassionate ground on the said post as submitted at Bar. The State cannot be allowed to discriminate the petitioner.

As a cumulative effect of the above discussions, the impugned order dated 03.06.2020 and 20.06.2020, are quashed. The petitioner shall be allowed to work on the post of Teacher with all consequential benefits in view of decision of Establishment Committee on the earlier occasion.

With the above observation and direction, the writ petition is disposed of.

(Sanjay Kumar Dwivedi, J.)

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