Case Note & Summary
The case involves an appeal by the State of Bihar against a judgment of the Patna High Court which directed that the respondents, Dilip Kumar and another, be granted compassionate appointment on a regular scale of pay in the services of the State Government, rather than on the post of Nagar Shikshak to which they were appointed. The respondents' fathers/mothers died in harness in 2006 while serving as Assistant Teachers in primary schools. The District Compassionate Appointment Committee considered their requests and offered them appointments as Nagar Shikshaks under Rule 10 of the Bihar Municipal Body Elementary Teachers (Employment and Service Conditions) Rules, 2006, on 12 April 2008 and 19 August 2008 respectively. The respondents accepted these appointments. Subsequently, on 17 October 2008, the Government of Bihar issued an instruction stating that posts of Panchayat Teachers and Block Teachers are not government posts and thus not within the DCAC's jurisdiction. The respondents filed writ petitions seeking mandamus for appointment to government posts. A learned Single Judge allowed the writ, relying on the 17 October 2008 instruction, and directed implementation of DCAC recommendations strictly in accordance with that instruction. The Division Bench affirmed this view, holding that the instruction dated 17 October 2008 clarified that compassionate appointments must be to government posts, and a later instruction dated 22 June 2009 recalling the earlier one would not affect the mandamus. The State appealed to the Supreme Court. The Supreme Court considered the 2006 Rules, particularly Rule 10 which governs compassionate appointments of Nagar Shikshaks, and Rule 20 which supersedes all previous rules, resolutions, orders, and instructions. The Court noted that the respondents were appointed after the 2006 Rules came into force and accepted their appointments. The Court held that the High Court erred in relying on the executive instruction of 17 October 2008, as no executive instruction could override the statutory rules. The Court also distinguished earlier orders dismissing Special Leave Petitions in similar cases, noting that a subsequent decision in Mukesh v State of Bihar had considered the issue and held that compassionate appointments are governed by instructions, but here the appointments were valid under Rule 10. The Supreme Court allowed the appeal, setting aside the High Court's judgment and dismissing the writ petitions.
Headnote
A) Service Law - Compassionate Appointment - Rule 10 of Bihar Municipal Body Elementary Teachers (Employment and Service Conditions) Rules, 2006 - Compassionate appointments are governed by statutory rules, not executive instructions - The respondents were appointed as Nagar Shikshaks under Rule 10 after the 2006 Rules came into force - Held that the High Court erred in relying on an executive instruction to direct regular government appointments, as the instruction could not override the rules (Paras 8-9). B) Service Law - Estoppel - Acceptance of Appointment - Respondents accepted appointments as Nagar Shikshaks under Rule 10 - Having accepted, they could not later assert a right to be appointed in government service - Held that acceptance of appointment estops a challenge to the terms (Para 9). C) Precedent - Distinction of Earlier Orders - Dismissal of Special Leave Petitions in Pooja Mishra and Sanjay Kumar does not bind the court where a subsequent decision (Mukesh v State of Bihar) has considered the issue - Held that the earlier orders are not precedential (Para 10).
Issue of Consideration
Whether the High Court was justified in directing that the respondents be appointed on regular government posts instead of as Nagar Shikshaks under Rule 10 of the 2006 Rules, based on an executive instruction dated 17 October 2008.
Final Decision
Appeal allowed. Judgment of the Division Bench of the Patna High Court dated 30 March 2015 is set aside. The writ petitions filed by the respondents are dismissed.
Law Points
- Compassionate appointments are not a source of recruitment
- Executive instructions cannot override statutory rules
- Appointments under Rule 10 of Bihar Municipal Body Elementary Teachers (Employment and Service Conditions) Rules
- 2006 are valid
- Acceptance of appointment estops later challenge
