Manoj Kumar Jha vs The State Of Jharkhand
2021 Latest Caselaw 3321 Jhar

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        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          W.P.(S) No.2844 of 2012
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        Manoj Kumar Jha                           ...   ...     Petitioner
                                      Versus
        1.     The State of Jharkhand
        2.     The   Secretary,   Human         Resources   Development

Department, Govt. of Jharkhand, Ranchi.

3. The Director, Primary Education, Government of Jharkhand, Ranchi.

4. The Regional Deputy Director of Education, North Chhotanagpur Division, Hazaribagh.

5. The District Superintendent of Education, Dhanbad.

6. The Secretary, Managing Committee, Jharia, Gujrati Hindi Middle School, Jharia, Dhanbad.

7. The Head Mistress, Jharia Gujrati Hindi Middle School, Jharia, Dhanbad. ... ...Respondents

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CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner :Mr. Samir Prasad, Adv.

        For the Res.State     :Mr. O.P.Tiwary, Adv.
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                     Through:- Video Conferencing
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11/08.09.2021        Heard learned counsel for the parties through

        V.C.

2. The instant writ application has been preferred

by the petitioner praying therein for quashing of the order

as contained in Memo No.377 dated 06.02.2012 passed by

the Respondent No.5 by which the claim of the petitioner

for approval of the appointment on compassionate ground

has been rejected. The petitioner has further prayed for a

direction upon the respondent authorities to immediately

and forthwith approve the appointment of the petitioner

and fix the pay scale with effect from 18.09.1995; the date

of joining, as the petitioner is working as Assistant Teacher

duly appointed by the Management Committee but in the

absence of necessary approval; the petitioner is not getting

full salary and other benefits.

3. Mr. Samir Prasad, learned counsel for the

petitioner draws attention of this Court towards the

impugned order which speaks that in view of the letter

No.1635 dated 04.08.1994; employees of Minority

Government Aided Institution will not fall under the

category of government employees, as such the benefit of

compassionate appointment is not applicable in view of the

notification which is annexed as Annexure-3 to the writ

application.

He further draws attention towards the judgment

passed in the case of Najmussabah Vs. State of Bihar &

Ors. [C.W.J.C. No.1122 of 1999(R)] and submits that

Clause 11 of the circular has been discussed in this order

and finally a direction was issued to the concerned

respondent that benefit of Circular dated 05.10.1991 shall

be extended to the petitioner of that case. He further

submits that the said order passed by the writ Court was

challenged by the respondent-State before the Division

Bench which was also dismissed. As such, the issue as to

whether the teachers of Minority Government Aided

Institution are Government servant and will get the benefit

of compassionate appointment in view of the Circular dated

05.10.1991 has attained finality; however, after going

through the impugned order, it would transpire that the

same ground has again been taken by the respondents that

the employees of Minority Government Aided Institution are

not government servants.

He further submits that the respondents

pursuant to the order passed by this Court on 27.07.2021

filed a supplementary counter affidavit dated 25.06.2021

and came with a new ground that without following the

procedure; appointment has been given to the petitioner as

he has not been appointed by the Managing Committee and

only appointment letter has been issued by the Head

Master of the School. He further submits that the

impugned order speaks of advertisement regarding

appointment on compassionate ground which is unheard in

service jurisprudence, inasmuch as, for compassionate

appointment there is no rule for advertisement for any

post.

In view of the aforesaid facts and settled law that

the teachers of Minority Government Aided Institution will

get the benefits of compassionate appointment, the

impugned order (Annexure-10) should be quashed and the

respondents be directed to approve the appointment of the

petitioner and fix the salary accordingly with effect from the

date of joining i.e. 18.09.1995 as the petitioner is

continuously working as Assistant Teacher without any

break.

4. Mr. O.P. Tiwari, learned counsel for the

respondent-State vehemently opposed the prayer of the

petitioner and submits that proper procedure was not

adopted in the case of petitioner, inasmuch as, the

Management Committee has not recommended the name of

the petitioner and only the Principal of the School has

certified that the petitioner is appointed, which is against

the procedure of compassionate appointment. In support of

his contention he relied upon paragraph Nos. 8, 9 and 10

of the supplementary counter affidavit dated 25.06.2021

which reads as under:-

"8. That it is most humbly stated herein that the case of the petitioner is not on the same footing of the order dated 16.04.2001 passed in C.W.J.C No.1122 of 1999(R) by the Hon'ble Court. In the paragraph 10 of the said order the decision of the Director, Primary Education Bihar Patna is quoted as follows:-

"If the appointment of the petitioner has been made by the Managing Committee after following the procedure of the Compassionate appointment then the necessary approval be granted and direction be issued for payment of Salary."

9. That it is also most humbly stated herein that it is the settled law that Public Employment must be as set-down by the constitutional scheme of public employment and law and rule made there under by adhering due procedure from bare perusal of Annexure-2 to the writ application it transpires that procedure of the alleged compassionate appointment is not followed. The petitioner purported to have been working with effect from 28.10.1991 and subsequently he is elevated to the compassionate appointee on 18.09.1995. This contention proves conclusively that due procedure of the compassionate appointment relating to the petitioner never followed. It is surprising to know through paragraph 8 to the writ application that the petitioner has made specific averment that "the appointment of the petitioner has been sent before the respondents for approval in term of the rule and guide line on 18.10.1992" i.e. 3 years before the alleged compassionate appointment.

10. That it is also most humbly stated herein that in the order contained in Memo No.377 dated 06.02.12 is it specifically mentioned that in the alleged appointment of

the petitioner by the Non Government Minority School, required procedure is not adhered to and the said fact is obvious from the statement made in foregoing paragraphs. Above all the letter No.1635 dated 04.08.1994 of the Director, Primary Education Bihar, Patna is very much specific on the point that the teachers of Aided Minority Schools are not government teacher as such benefit of compassionate appointment cannot be extended to them it is also settled law that compassionate appointment is not a matter of right."

Relying upon the aforesaid averments, he

submits that since the appointment of the petitioner was

not in accordance with the procedure as such no

interference is required in this case and the writ application

deserves to be dismissed.

5. Having heard learned counsel for the parties and

after going through the relevant documents annexed with

the respective affidavits and the averments made therein; it

appears that the impugned order contains three reasons for

rejecting the claim of the petitioner. For the sake of brevity;

the relevant paragraph of the impugned order is quoted

hereinbelow:-

"W.P.(S) No. 5111/08.........//////// funs"kd] izk0 f"k0 fcgkj] iVuk ds i=kad 1635 fnukad 04-08-1994 esa Li'Vr% funs"k fn;k x;k gS fd lgk;rk izkIr ¼vYila[;d½ izkjfEHkd fo/kky;ksa ds f"k{kd ljdkjh lsod ugha gSA vr% muds vkfJr dks lsokdky esa muds e`R;q ds i"pkr vuqdEik ds vk/kkj ij fu;qfDr ughs dh tk ldrh gSA fu;kqfDr i= ds voyksduksijkUr ik;k x;k fd Jh >k fd fu;qfDr vfu;fer :Ik ls fcuk foKkiu ,oa foHkkxh; fu;e dk ikyu djrs gq, dh x;h gS] tcfd foHkkxh; fu;e ds i=kad 709 fnukad 04-03-1993 esa vYila[;d fo/kky; esa fu;qfDr dh izfdz;k fu/kkZfjr gSa A vr% mijksDr rF;kyksd esa Jh eukst dqekj >k dk fu;qfDr vuqeksnu lac/a kh izLrko dks vLohd`r fd;k tkrk gSaA"

Thus, the first reason is that in view of the letter

No.1635 dated 04.08.1994, employees of Minority

Government Aided Institution will not fall under the

category of government employees and as such the benefit

of compassionate appointment is not applicable to them.

The second ground is that the appointment of the petitioner

on compassionate ground was irregular, inasmuch as,

there was no advertisement and procedure of departmental

rules has not been followed in spite of the fact that in view

of the departmental letter dated 04.03.1993, there is a

proper procedure for appointment in Minority School.

6. In nutshell, the respondent-State ignored the

decision passed by this Court in the case of Najmussabah

(supra) wherein it has been held that the management of

the School is vested in the Management Committee and

clause 11 of the circular provides that the benefits of the

circular for appointment on compassionate ground

available to the government employee, shall also apply in

all local bodies, Corporation and non-government

institutions.

For brevity paragraph No.8 and 10 of the

judgment passed in the case of Najmussabah (Supra) is

quoted hereinbelow:-

"8. The circular dated 5.10.91 has been annexed as annexure 11 to the reply to the counter affidavit filed by the petitioner. Clause 11 of the circular provides that the benefits of the circular for appointment on compassionate ground available to the government employee, shall also apply in all local bodies, Corporation and non-government institutions. The Managing Committee, after following the procedures provided in the circular, appointed the petitioner on compassionate ground in 1993 and the matter was forwarded to the respondents for approval. The District Superintendent of Education, by his letter referred to above, requested the Director, Primary Education, Bihar, Patna to take necessary decision for payment of salary. Respondent No.3 vide his letter dated 20.03.96, directed respondent no.4, the D.S.E, Hazaribagh to give approval if the appointment has been made after following the procedures of appointment on compassionate ground.

10. On the bass of the affidavits filed by the parties and the documents annexed therewith the admitted facts which emerge are that the school in question is a minority Government aided institution and the management of the school is vested in the Managing Committee. It is also not disputed that the Managing Committee considered the case of the petitioner for appointment on compassionate ground in accordance with the procedures provided in the circular and appointed her in 1993 subject to approval of the Education department. It is also clear that the Director, Primary Education, Bihar Patna took a decision that if the appointment of the petitioner has been made by the Managing Committee after following the procedures of compassionate appointment then necessary approval be granted and direction be issued for payment of salary."

By going through the notification which is

annexed as Annexure-3 to the writ application and the

judgment referred to herein above; it clearly transpires that

the benefit of the circular for appointment on

compassionate ground which is available to the government

employee shall also apply in all local bodies, Corporation

and non government institution. Thus, the first ground of

rejection that "Minority Government Aided Institution will

not fall under the category of government employee and

benefit of compassionate appointment is not applicable to

them", has no legs to stand in view of the judgment referred

to hereinabove.

7. So far as the other grounds that procedure for

appointment in the case of petitioner has not been followed

by the Management Committee as there was no

advertisement in the newspaper and departmental rules

were not followed. In this regard, if one go through the

order passed by the Writ Court in the earlier writ

application filed by this petitioner; it clearly transpires that

petitioner has categorically stated that the Management

Committee of the school did take a decision on 18.09.1995

for giving appointment to the petitioner on compassionate

ground. On taking such decision, the matter was referred

to District Superintendent of Education.

For brevity, the order passed in W.P.(S) No.5111

of 2008 is quoted hereinbelow:-

"Heard the parties.

Learned counsel appearing for the petitioner submits that the petitioner's father, late Ram Ballabh Jha, who was working as an Assistant Teacher in a minority school, died in harness in the year 1991. Thereupon the petitioner being the son of the deceased employee filed an application for appointment on compassionate ground. The Managing Committee of the school did take a decision on 18.09.1995 for giving appointment to the petitioner on compassionate ground. On taking such decision, the matter was referred to District Superintendent of Education, Dhanbad for approval of the decision, but the District Superintendent of Education, Dhanbad-respondent No.5 has not taken any decision in this matter, though it is pending before him since last six years, as a result of which the petitioner is being denied appointment on compassionate ground.

In view of the fact and circumstances as stated above, this writ application is disposed of with a direction to the respondent No.5 to take a decision in the matter as aforesaid within a period of 6 weeks from the date of receipt/production of a copy of this order."

By going through the aforesaid order, it appears

that the matter was heard and the specific statement of the

petitioner that the Management Committee did take

decision on 18.09.1995 has not been controverted by the

State counsel and now by taking a new ground during

course of argument that Annexure-2 is only the certificate,

has no legs to stand. Thus, the grounds taken by the

respondent in the impugned order is perverse.

8. Before parting, it is also necessary to deal with

argument of the counsel for the State that the appointment

of the petitioner on compassionate ground was irregular,

inasmuch as, there was no advertisement and procedure of

departmental rule has not been followed. In this regard a

specific query was made from the learned counsel of the

respondent-State to show any instance as to whether any

advertisement has ever been issued in the case of

compassionate appointment; the answer was in negative.

Learned counsel for the respondent-State though tries to

impress this Court by referring a letter dated 04.03.1993

and submits that procedure for appointment in Minority

Government Aided Institution has been prescribed, but

after going through the aforesaid letter it does not transpire

that in the case of compassionate appointment any

advertisement is required to be issued, because the

purpose of compassionate appointment itself is an

exception to the general rule of appointment.

At this stage it is pertinent to mention here that

it is an admitted case of both the parties that the petitioner

is still working and he has never been terminated.

7. In view of the aforesaid discussions and findings

and the judgment referred to hereinabove; the instant writ

application, is hereby, allowed. The impugned order as

contained in Memo No.377 dated 06.02.2012, is quashed

and set aside. The respondent No.5 is directed to issue

necessary order of approval forthwith and fix the pay scale

of the petitioner in accordance with law after verification of

record.

8. Since the matter is very old, the entire exercise

shall be completed within a period of three months from

the date of receipt/production of copy of this order and the

entire monetary benefits which will accrue pursuant to the

decision; shall be paid to the petitioner within a further

period of 8 weeks.

9. The petitioner is also at liberty to approach

respondent No.5 along with relevant documents so that the

matter can be settled at the earliest.

10. With the aforesaid observations and directions,

the instant writ application stands allowed and pending I.A,

if any, also stands disposed of.

(Deepak Roshan, J.) Fahim/-

AFR