The State Of Bihar And Ors vs Tanoj Kumar Jha And Ors
2023 Latest Caselaw 924 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                       Letters Patent Appeal No.1782 of 2018
                                         In
                   Civil Writ Jurisdiction Case No.17856 of 2009
     ======================================================

1. The State Of Bihar

2. The Secretary cum Commissioner Personal and Administrative Reforms Department, Bihar, Patna.

3. The Principal Secretary, Human Resources Department, Bihar, Patna.

4. The Deputy Secretary personal and Administrative Reforms Department, Bihar, Patna.

5. The District Magistrate, cum Collector, Establishment, Katihar.

6. The Deputy Collector Establishment, Katihar.

7. The District Education Officer, Katihar.

8. The Superintendent of Education, Katihar.

... ... Appellant/s Versus

1. Tanoj Kumar Jha, S/o Late Sachchidanand Jha Resident of Village P.O.-

Kataria, P.S.- Katihar District- Katihar.

2. Vivekanand Paswan, S/o Late Gurudeo Paswan, Resident of Village P.O.-

Lakshmipur, P.S.- Katihar, District- Katihar.

3. Kishore Kumar, S/o Late Vindeshwar Mishra, Resident of Village Teachers Colony, P.O.- Purniya, P.S.- Kehat, District- Purniya

4. Deepak Kumar Jha, S/o Late Vijay Prakash Jha, R/o Village- Gedabari Kali Sthan, P.O.- Kordha, P.S.-Katihar, Katihar Asst. Teacher Primary School Mushapur, Korha, District- Katihar.

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mrs. Shilpa Singh, G.A.-12 Mrs.Abhanjalli, AC to GA 12 For the Respondent/s : Mr.Prabhakar Singh, Advocate Mr. Rakesh Mohan Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE ARUN KUMAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ARUN KUMAR JHA)

Date : 25-02-2023

Heard learned counsel for the appellants and learned

counsel for the respondents.

Patna High Court L.P.A No.1782 of 2018 dt.25-02-2023

2. The present L.P.A. is directed against the judgment

dated 18.03.2017 and order dated 20.04.2017 passed in CWJC

No. 17856 of 2009 by the learned Single Judge of this Court

whereby and whereunder the civil writ petition filed by the

respondents has been disposed of in the terms mentioned

therein. Thereafter, the said judgment dated 18.03.2017 has been

modified by correcting factual error vide order dated

20.04.2017.

3. In the writ petition, the petitioners-respondents

herein have sought following relief :

"1. For issuance of writ/writs in the nature of mandamus for a direction to the respondent authorities to appoint the petitioners on compassionate ground on the post regular post of class-(III) in pursuance of recommendation made vide letter dated 31.12.2008 by the District Compassionate Committee, Katihar for appointment and in the light of recommendation made by the District Superintendent of Education, Katihar, for which examination was taken and petitioners successfully passed, though as matter of fact other candidates who passed the examination and selected for appointment on class-III past on compassionate ground like petitioners have been appointed in different department.

II. For issuance of writ (s) in the nature of Patna High Court L.P.A No.1782 of 2018 dt.25-02-2023

certiorari for quashing the letter issued vide letter no. 634 dated 7.9.2009 by the respondent D.S.E., Katihar in favour of petitioner no.1 whereby and whereunder he has been directed to submit application for employment in concern block/ panchayat employment unit for employment, because vide letter dated 22.06.2009 issued by the respondent no.4, direction has been given for compassionate appointment of the dependents of deceased employee who were posted as teacher/ non teaching posts.

III. For issuance of writ (s) in the nature of certiorari for quashing the letter No. 2955 dated 22.06.2009 issued by the Deputy Secretary, Personal and Administrative Reforms Department, Bihar, Patna, by which direction has been given for employment of the dependents of teaching non teaching employees on compassionate ground as block/ panchayat teacher instead of regular appointment against the regular post, though after taking examination name of the petitioners was recommended for appointment on class-III posts and the letter dated 17/10/2008 issued by the same authority disclosed that earlier, authorities of the education department were directed to not make employment on compassionate ground on the post of Block/ Panchayat teacher, because it not come under the State Govt., accordingly, compassionate committee has no jurisdiction.

IV. And for any other relief/reliefs for which petitioners are legally entitled to.

Patna High Court L.P.A No.1782 of 2018 dt.25-02-2023

4. Brief facts of the case are that the parents of the writ

petitioners (respondents herein) were Assistant teachers at

different primary schools and they died in harness in the year

2004 to 2007 and, as such, the writ petitioners-respondents

herein being their dependents applied for compassionate

appointment. The District Compassionate Committee after

considering the case of the writ petitioners on different dates

had finally recommended for their appointment on Class III

posts vide order dated 31.12.2008 as they cleared the

examination held for making such selection. However, when the

orders of appointment in favour of the writ petitioners were

being delayed, the writ petitioners approached this Court by

filing CWJC No.17856 of 2009 which was finally disposed of

vide judgment dated 18.03.2017 directing the District

Magistrate to appoint the petitioner nos. 1, 3 and 4 on Class III

posts in terms of the recommendation dated 31.12.2008.

However, the said order dated 18.03.2017 was modified vide

order dated 20.04.2017 directing to appoint the petitioner nos. 1,

2 and 3 and further observed that the appointment of the

petitioner no.4 as Panchayat Teacher was proper. The said

decision was precisely based on the analogy that the petitioner

nos. 1, 2 and 3 applied for compassionate appointment prior to Patna High Court L.P.A No.1782 of 2018 dt.25-02-2023

01.07.2006 i.e. prior to enactment of Bihar Panchayat Primary

(Appointment and Service) Rules, 2006 (hereinafter referred to

as 'the Rules, 2006') whereas the petitioner no.4 applied for

compassionate appointment on 12.02.2007. Being aggrieved by

and dissatisfied with the judgment and order dated 18.03.2017

and 20.04.2017 passed in CWJC No. 17856 of 2009, the

appellants-State preferred the present LPA.

5. The learned counsel for the appellants-State of Bihar

submitted that the compassionate appointment is not a

fundamental right nor a constitutional right nor a statutory right

as it is an exception to Articles 14 and 16 of the Constitution of

India and once in exercise of power conferred by Rule 10 of the

aforesaid 'Rules, 2006', the writ petitioners have been offered

employment as Panchayat Teacher on compassionate ground

and they have accepted the same, might be under protest, their

claim for compassionate appointment stands satisfied and they

cannot claim employment in government service.

6. Per contra, the learned counsel for the respondents

has submitted that the matter relating to compassionate

appointment is to be governed on the basis of the Government

policy which was existing at the time when the cause of action

arose and in any case, at least, from the time when they had Patna High Court L.P.A No.1782 of 2018 dt.25-02-2023

applied for such post. The learned counsel further submitted that

the aforesaid Rules came into effect from 01.07.2007 and prior

to the same, the policy of the State Government for

compassionate appointment was appointment either on a Class

III or Class IV, post depending on the qualification and

eligibility of the candidate. The learned counsel further

submitted that the parents of the writ petitioners were

Government servant and, as such, they had rightly been

recommended for appointment on Class III post under the

Government and could not have been appointed as Panchayat

Teacher, which is not a Government employment. The learned

counsel also submitted that no interference in the impugned

judgment of learned Single Judge is called for as the same has

been passed after duly considering all the materials on record.

7. Having considered the materials available on record

and further considering the rival submission, it appears that the

learned Single Judge while passing of the impugned judgment

has rightly observed as follows :

"Having considered the rival contentions, in the considered opinion of the Court, compassionate appointment being an exception to the general rule of employment, has to be governed by the scheme framed by the concerned Government.

In this regard, since the Government has taken Patna High Court L.P.A No.1782 of 2018 dt.25-02-2023

a conscious decision, as is incorporated in the Rules itself, that dependants of teachers would be appointed, depending on the qualification, on the post of Panchayat Teachers, no person has any right of seeking appointment under the State Government on a Class-III or IV post. This is one aspect of the matter. The other aspect, which is more relevant in the present case, is to the applicability of the Rules as far as the case of the petitioners are concerned. In this regard also the settled law is that the scheme which is prevalent on the date of cause of action would be the scheme under which such consideration would be made. In the present case, the admitted position is that the Rules came into effect in the year 2006 much later to the cause of action of the petitioners no. 1, 3 and 4 having arisen and they had even applied much prior to coming into effect of the Rules. Thus, in view of such position and also taking into consideration the fact that the petitioners no. 1, 3 and 4 have been recommended for a Class-III post, meaning thereby that they have been found eligible for appointment on such post, such claim is fit to be allowed.

Accordingly, mandamus is issued upon respondent no. 5, for appointing the petitioners no. 1, 3 and 4 on a Class-III post under the Government in terms of the recommendation of the District Compassionate Committee, Katihar dated 31.12.2008. As far as the petitioner no. 2 Patna High Court L.P.A No.1782 of 2018 dt.25-02-2023

is concerned, the cause of action as well as him applying, after coming into effect of the Rules, the decision to appoint him as a Panchayat Teacher does not require to be interfered with. Since he has already joined as Panchayat Teacher, he shall continue on the same post".

8. It further appears from the records that after disposal

of CWJC No.17856 of 2009 vide judgment dated 18.03.2017,

the same has been again listed at the behest of learned counsel

for the writ petitioners for correcting factual error reflected in

the order. After hearing the parties, the learned Single Judge

vide order dated 20.04.2017 has observed in paragraphs 5, 6 & 7

as follows :

"5. Having heard the parties, in view of the issue relating to date of application for appointment on compassionate ground being a matter of record and taking into account the submissions made by learned counsel for the petitioners, let the reference with regard to date of application for appointment on compassionate ground relating to petitioners no. 2, 3 and 4 be read as 15.11.2005, 16.12.2005 and 23.12.2004 respectively.

6. Accordingly, the mandamus issued upon respondent no. 5 for appointment is modified to petitioners no. 1, 2 and 3 and as a consequence, the decision to appoint petitioner no. 4 as Panchayat Teacher is held to be proper and he Patna High Court L.P.A No.1782 of 2018 dt.25-02-2023

shall continue as such.

7. The order dated 18.03.2017 stands modified to the extent indicated above".

9. The settled law is that the scheme which is

prevalent on the date of cause of action would be the scheme

under which such consideration would be made. In the present

case, the admitted position is that the Rules came into effect in

the year 2006 much later to the cause of action of the

petitioners no. 1, 2 and 3 having arisen and they had even

applied much prior to coming into effect of the Rules. Further,

if the respondents were holding the requisite qualification for

the job on the date of application as per the existing rules and

the then scheme providing on the date for compassionate

appointment is to be taken into consideration.

Even the Apex Court in the case of Delhi Jal Board

Vs. Nirmala Devi, reported in (2022) 10 SCC 696, has held

that once the application for compassionate appointment is

made, the qualification which the applicant possesses on the

date of application is to be considered. This strengthens the fact

that for consideration of date of reckoning, the relevant date is

the date on which application has been made.

Further, the Apex Court in the case of Excise

Commr. v. Esthappan Cherian, (2021) 10 SCC 210 in Patna High Court L.P.A No.1782 of 2018 dt.25-02-2023

paragraph 16 has held as under :

"16. There is profusion of judicial authority on the proposition that a rule or law cannot be construed as retrospective unless it expresses a clear or manifest intention, to the contrary. In CIT v. Vatika Township (P) Ltd. [CIT v. Vatika Township (P) Ltd., (2015) 1 SCC 1] this Court, speaking through a Constitution Bench, observed as follows : (SCC pp.

21-22, paras 28-29)

"28. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit : law looks forward not backward. As was observed in Phillips v. Eyre [Phillips v. Eyre, (1870) LR 6 QB 1] , a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past Patna High Court L.P.A No.1782 of 2018 dt.25-02-2023

transactions carried on upon the faith of the then existing law.

29. The obvious basis of the principle against retrospectivity is the principle of "fairness", which must be the basis of every legal rule as was observed in L'Office Cherifien des Phosphates v. Yamashita- Shinnihon Steamship Co. Ltd. [L'Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd., (1994) 1 AC 486 : (1994) 2 WLR 39 (HL)] Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later."

10. In the light of discussion made hereinabove and

under the facts and circumstances of the case, it cannot be said

that the learned Single Judge has committed any error which

calls for interference by this Court in exercise of the appellate

jurisdiction. We are in agreement with the view taken by the

learned Single Judge.

Patna High Court L.P.A No.1782 of 2018 dt.25-02-2023

11. Accordingly, the present Letters Patent Appeal is

dismissed.

12. Pending application, if any, stands disposed of.

(P. B. Bajanthri, J)

( Arun Kumar Jha, J) V.K.Pandey/-

AFR/NAFR                A.F.R.
CAV DATE                N.A.
Uploading Date          03.03.2023
Transmission Date       N.A.