Patna High Court
Sanjeev Kumar Divakar vs The State Of Bihar on 30 January, 2025
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.19300 of 2021
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Sanjeev Kumar Divakar Son of Late Ashok Kumar Resident of Village-
Teghra, P.S.-Teghra, District-Begusari.
... ... Petitioner/s
Versus
1. The State of Bihar
2. The Director, Secondary Education, Government of Bihar, Patna.
3. The District Education Officer, Begusarai.
4. The District Programme Officer (Establishment), Begusarai.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Amaresh Kumar Singh, Advocate
Mr. Onkar Kumar, Advocate
Mr.Dineshwar Prasad Singh, Advocate
For the Respondent/s : Ms. Meera Singh, AC to GP 23
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CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 30-01-2025
Heard Mr. Amaresh Kumar Singh along with Mr.
Onkar Kumar and Mr. Dineshwar Prasad Singh, learned
counsels appearing on behalf of the petitioner and Ms. Meera
Singh, learned AC to GP 23 for the State.
2. Petitioner has inter alia prayed for following
reliefs in the paragraphs No.1 of the writ petition:-
"That this is application for issuance of
appropriate writ/order/direction for grant of Regular
scale of teacher by modifying the appointment of
petitioner from the post of Nagar Prambhik Teacher on
the basis of honorarium to the regular teacher as the
father of petitioner died in year 2003 when the
provision for appointment on compassionate ground
was on regular post with consequential benefit."
Patna High Court CWJC No.19300 of 2021 dt.30-01-2025
2/9
3. At the outset, learned counsel appearing on
behalf of the petitioner submitted that as the entire globe was
suffering from Covid-19 pandemic and advisories issued from
time to time, petitioner had given undertaking that when the
Hon'ble Court will start functioning smoothly after the
normalcy, the required court fees will be furnished. Today in
the Court, learned counsel undertakes to file the hard copy of
the writ petition along with the court fees forthwith in the
Registry.
4. Learned counsel proceeded to submit that father
of the petitioner, who was a clerk in High School died in
harness on 25.08.2003 while CJWC No.12797 of 2000, which
was filed by the father of the petitioner, was pending. An
interlocutory application was filed for substitution of the legal
heirs of the deceased employee, which was allowed and the
petitioner and his mother were substituted along with his
brother. However, the writ petition was dismissed vide order
dated 11.08.2006 and the mother of the petitioner including the
petitioner preferred LPA No.627 of 2006, which was allowed on
20.07.2011
. Thereafter, the matter was considered at the level of
the State Government and the Director, Secondary Education,
Government of Bihar found under the facts and circumstances
Patna High Court CWJC No.19300 of 2021 dt.30-01-2025
of the case to pass an order of reinstatement of the father of the
petitioner late Ashok Kumar with all consequential benefits. The
reliefs as prayed on behalf of the substituted petitioners were
allowed, holding the mother of the petitioner was entitled for
family pension, as also the petitioner was entitled for being
appointed on compassionate ground. It is admitted that father of
the petitioner had died on 25.08.2003, however, the appointment
of the petitioner was made as per the provision of Bihar
Panchyat Elementary Teacher (Employment and Service
Conditions) Rules, 2006 (hereinafter refereed to as the "Rules,
2006") which came into effect from 01.07.2006. Certain
clarifications were sought again by the District Programme
Officer (Establishment), Begusarai and it was clarified that the
appointment of the petitioner can be made in accordance with
Rule 10 of the Rules, 2006. The petitioner has taken a ground in
the present writ petition that the father of the petitioner had died
on 25.08.2003 and the Rules, 2006 came into effect from
01.07.2006 but the petitioner till date is getting only
honorarium in place of pay scale, though his appointment has
been made on permanent basis. Learned counsel submitted that
law in respect of the Rules which will govern the appointment
and service condition of the persons who are appointed on
Patna High Court CWJC No.19300 of 2021 dt.30-01-2025
compassionate ground would be relevant which was prevailing
on the date of death of the deceased employee. In the present
case, the father of the petitioner had died on 25.08.2003 and the
Rules which was prevailing at the said time, provided for
appointment on Class III or Class IV post. Petitioner's case
could have been considered for being appointed either on class
III or class IV post and not in accordance with the Rules, 2006
on the post of Panchayat teacher. Learned counsel in this regard
has placed reliance upon the law laid down by the Apex Court in
the case of the Secretary To Govt. Department Of Education
(PRIMARY) & Ors. Vs. Bheemesh Alias Bheemappa (Civil
Appeal No.7758 of 2021) arising out of Special Leave Petition
(c) No.1564 of 2021, in which the order was passed on
16.12.2021. In these backgrounds, learned counsel submitted
that the petitioner is entitled for being considered to be
appointed as per the Rules for compassionate appointment,
which was the prevalent at the time of death of his father in the
year 2003. He further submitted that the case of the similarly
situated teachers were considered by the District Education
Officer (Establishment) and the petitioner being given not the
same treatment is violation of Articles 14 and 16 of the
Constitution of India.
Patna High Court CWJC No.19300 of 2021 dt.30-01-2025
5. Learned counsel further proceeded to submit that
the writ petition was filed during Covid 19 during which period
the entire world was suffering and the matter got delayed
because of the said pandemic. There is no laches on the part of
the petitioner in pursuing his grievance as prayed for in the
present writ petition.
6. Per contra, learned counsel appearing on behalf
of the State submitted that the petitioner has been appointed as
per Rules, 2006 and the earlier Rules were repealed. So far rule
of compassionate appointment is concerned, as per Rule 10 of
Rules, 2006, the case of the petitioner cannot be considered for
being appointed on Class III post or Class IV post under the
State Government, even though the father of the petitioner was
State Government employee, who had died in harness while
working as Clerk in a School. He further submitted that
petitioner cannot claim equity with those persons whose case
were considered by the Establishment (Section of District
Education) because the case of the petitioner is entirely different
from those persons.
7. Having considered the rival submissions made
on behalf of the parties, as well as, the fact the it is well settled
that the appointment on compassionate grounds is not
Patna High Court CWJC No.19300 of 2021 dt.30-01-2025
automatic, but subject to strict scrutiny of various parameters
including the financial position of the family, the economic
dependence of the family upon the deceased employee and the
avocation of the other members of the family. Therefore, no one
can claim to have a vested right for appointment on
compassionate ground. The question arises whether the scheme
which was in force on the date of death of deceased employee,
i.e., the father of the petitioner, who had died in harness as a
class III employee, while he was posted as Clerk in a school
fully financed by the State Government will be applicable to the
petitioner. In this regard, learned counsel has placed reliance
upon the judgment of the Apex Court rendered in Bheemesh
Alias Bheemappa (supra). I find it gainful to reproduce
paragraphs no. 17 to 20 which are reproduced hereinafter:
"17. Keeping the above in mind, if we
critically analyse the way in which this Court has
proceeded to interpret the applicability of a new or
modified Scheme that comes into force after the death of
the employee, we may notice an interesting feature. In
cases where the benefit under the existing Scheme was
taken away or substituted with a lesser benefit, this Court
directed the application of the new Scheme. But in cases
where the benefits under an existing Scheme were enlarged
by a modified Scheme after the death of the employee, this
Court applied only the Scheme that was in force on the date
of death of the employee. This is fundamentally due to the
fact that compassionate appointment was always
considered to be an exception to the normal method of
recruitment and perhaps looked down upon with lesser
compassion for the individual and greater concern for the
rule of law.
18. If compassionate appointment is one of
the conditions of service and is made automatic upon the
Patna High Court CWJC No.19300 of 2021 dt.30-01-2025
death of an employee in harness without any kind of
scrutiny whatsoever, the same would be treated as a vested
right in law. But it is not so. Appointment on compassionate
grounds is not automatic, but subject to strict scrutiny of
various parameters including the financial position of the
family, the economic dependence of the family upon the
deceased employee and the avocation of the other members
of the family. Therefore, no one can claim to have a vested
right for appointment on compassionate grounds. This is
why some of the decisions which we have tabulated above
appear to have interpreted the applicability of revised
Schemes differently, leading to conflict of opinion. Though
there is a conflict as to whether the Scheme in force on the
date of death of the employee would apply or the Scheme in
force on the date of consideration of the application of
appointment on compassionate grounds would apply, there
is certainly no conflict about the underlying concern
reflected in the above decisions. Wherever the modified
Schemes diluted the existing benefits, this Court applied
those benefits, but wherever the modified Scheme granted
larger benefits, the old Scheme was made applicable.
19. The important aspect about the conflict
of opinion is that it revolves around two dates, namely, (i)
date of death of the employee; and (ii) date of
consideration of the application of the dependant. Out of
these two dates, only one, namely, the date of death alone is
a fixed factor that does not change. The next date namely
the date of consideration of the claim, is something that
depends upon many variables such as the date of filing of
application, the date of attaining of majority of the
claimant and the date on which the file is put up to the
competent authority. There is no principle of statutory
interpretation which permits a decision on the applicability
of a rule, to be based upon an indeterminate or variable
factor. Let us take for instance a hypothetical case where 2
Government servants die in harness on January 01, 2020.
Let us assume that the dependants of these 2 deceased
Government servants make applications for appointment
on 2 different dates say 29.05.2020 and 02.06.2020 and a
modified Scheme comes into force on June 01, 2020. If the
date of consideration of the claim is taken to be the criteria
for determining whether the modified Scheme applies or
not, it will lead to two different results, one in respect of the
person who made the application before June 1, 2020 and
another in respect of the person who applied after June 01,
2020. In other words, if two employees die on the same date
and the dependants of those employees apply on two
different dates, one before the modified Scheme comes into
force and another thereafter, they will come in for
differential treatment if the date of application and the date
of consideration of the same are taken to be the deciding
factor. A rule of interpretation which produces different
Patna High Court CWJC No.19300 of 2021 dt.30-01-2025
results, depending upon what the individuals do or do not
do, is inconceivable. This is why, the managements of a few
banks, in the cases tabulated above, have introduced a rule
in the modified scheme itself, which provides for all
pending applications to be decided under the new/modified
scheme. Therefore, we are of the considered view that the
interpretation as to the applicability of a modified Scheme
should depend only upon a determinate and fixed criteria
such as the date of death and not an indeterminate and
variable factor.
20. Coming to the case on hand, the
employee died on 8.12.2010 and the amendment to the
Rules was proposed by way of a draft notification on
20.06.2012. The final notification was issued on
11.07.2012. Merely because the application for
appointment was taken up for consideration after the issue
of the amendment, the respondent could not have sought
the benefit of the amendment. The Judgment of the Division
Bench of the Karnataka High Court in Akkamahadevamma
on which the Tribunal as well as the High Court placed
reliance, was not applicable to the case of compassionate
appointments, as the amendment in Akkamahadevamma
came as a result of the existing rule being declared to be
ultra vires Articles 14 and 16 of the Constitution.
8. Considering the law laid down by the Apex
Court, I find that the father of the petitioner had died on
28.05.2003 after that the petitioner was substituted and
petitioner's claim was pending before this Court which was
finally decided in LPA No.627 of 2006 and the authorities have
not taken into consideration the date of death of the father of the
petitioner and the Rules which was governing at the same time.
I also take note of the fact that the petitioner has also made out
a case on equity. The appropriate authorities in the case of
several persons, whose fathers had died in harness, have
rectified their action by appointing them on Class III and Class
Patna High Court CWJC No.19300 of 2021 dt.30-01-2025
IV post, as would appear from Annexure 7 to the writ petition. I
find it proper to direct the Director, Secondary Education,
Government of Bihar to first proceed to rectify the action which
has been erroneously taken while appointing the petitioner in
accordance with Rule 10 of Rules, 2006. The corrective
measures are required to be taken as per the Rules governing the
compassionate appointment at the time of death of the father of
the petitioner in accordance with the law laid down by the Apex
Court in case of Bheemesh Alias Bheemappa (Supra).
9. The writ petition is, accordingly, allowed.
10. Interlocutory Application(s), if any, also stands
disposed of.
(Purnendu Singh, J)
Sanjay/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 04.02.2025
Transmission Date NA
