Dipak Misra, C.J:— The present appeal was preferred under Clause-X of the Letters Patent assailing the defensibility of the order dated 30.4.2009 passed by the learned Single Judge in C.W.J.C No. 10795 of 2006.
2. When the matter was heard by the Division Bench the Bench came across a decision rendered in Brqjesh Kumar v. The State of Bihar,1 wherein a reference was made to the Bihar Panchayat Primary Teacher (Appointment and Service Conditions) Rules, 2006 (hereinafter referred to as ‘the 2006 Rules’). Resolution No. 12754 dated 12.7.1997, letter No. 6905 dated 17.10.2008 and notification dated 22.6.2009 issued by the Department of Personnel and Administrative Reforms, Government of Bihar pertaining to compassionate appointment, and further, the Division Bench decision rendered in Dilip Kumar Bhattacharya v. The State of Bihar . 2004 4 PLJR 889. and, eventually, it was held that the legal heir of deceased teacher, who was appointed much prior to coming into force of the 2006 Rules, is entitled to be appointed on a Government post and not on the post of Panchayat/Prakhand/Nagar Shikshak as the District Compassionate Committee which recommends for compassionate appointment cannot recommend for such posts. The Division Bench hearing the matter, after taking note of the basic nature of compassionate appointment, various notifications in the field and the circular dated 26.2.2009, thought appropriate that the matter should be heard and disposed of by a Larger Bench to put the controversy to rest from all spectrums. Thus, the matter has been placed before us.
3. Presently, to the facts which are requisite to be exposited for the purpose of adjudication of the appeal. The father of the respondent-writ petitioner/hereinafter referred to as ‘the respondent’), a teacher in Upgraded Middle School, Lodipur, Anchal-Koilwar, District-Bhojpur, died-in-harness on 23.3.2005 The respondent, who fulfilled the criteria to be appointed on compassionate basis, being covered under the scheme, submitted an application before the District Superintendent of Education, Bhojpur, who, in turn, forwarded the same to the District Compassionate Committee (for short ‘the Committee’), Bhojpur. The committee on due deliberation on 7.12.2005 recommend him for appointment in the education department. Despite the said recommendation, no appointment was made, and therefore, the writ petitioner approached this Court for issue of a writ of mandamus commanding the respondents therein to appoint him without any delay.
4. A counter-affidavit was filed by the District Superintendent of Education, Bhojpur, Ara, the respondent No. 6 in the writ petition, stating, inter alia, that the petitioner had already been appointed on the post of Prakhand Teacher and joined on the post. It was put forth in the return that after receipt of the resolution of the committee, the matter was processed in the light of the departmental notification No. 974 dated 1.7.2006 and, eventually, a communication was made by the District Superintendent of Education, Bhojpur, Ara to the writ petitioner on 28.9.2006 vide Annexure-A requiring his consent to be appointed as Prakhand Teacher. As there was initially no response, a reminder was sent on 3.11.2006 vide Annexure-B and, thereafter, the respondent-writ petitioner by communication dated 12.3.2007 requested the authorities to appoint him on the post of Prakhand Teacher in Koilwar Block. On the basis of the said letter, he was appointed on the post of Prakhand Teacher vide Memo No. 15 dated 4.7.2007 issued by the Block Development Officer, Koilwar and posted in the Middle School, Khangaon, Koilwar where he had already joined on 5.7.2007
5. A supplementary affidavit was filed on behalf of the respondent-writ petitioner by way of rejoinder contending, inter alia, that the authorities have not acted in accordance with the recommendation made by the committee inasmuch as they had offered the post of Prakhand Teacher. A reference has been made to letter No. 3.Anu/17/2005 Ka 6905 dated 17th October, 2008 Issued by the Deputy Secretary, personnel and Administrative Reforms Department, Government of Bihar that the employment as Panchayat Shikshak or Prakhand Shikshak was not a post under the Government and, therefore, no appointment could be given on compassionate ground, it has been asserted in the affidavit that this Court has already decided the issue in C.W.J.C No. 13944/2005 Md. Sadare Alam v. The State of Bihar with C.W.J.C No. 4179/2007 Anil Kumar Jha v. The State of Bihar, disposed of on 4.12.2008 that the posts of Panchayat Shikshak/Prakhand Shikshak are not posts under the State Government and no recommendation can be made on such posts. It was also pleaded therein that the respondent-writ petitioner was forced to accept the appointment as Prakhand Teacher. It was put forth that he was entitled to be appointed on a Class-Ill post in the Government Department.
6. The learned Single Judge, upon perusal of the pleadings and the circular No. 6905 dated 17.10.2008, has held that in view of the directions issued in the aforesaid circular, it is evident that the respondent-writ petitioner had not been given appointment on compassionate ground in the Government as recommended by the Committee and as per the requirement of the Government circulars and, accordingly, directed the respondents therein to appoint the petitioner on an appropriate post in the Government as per the recommendation of the committee within a period of two months.
7. We have heard Mr. Lalit Kishore, learned Additional Advocate General-III for the appellants, and Mr. Uma Shankar Singh No. 2, learned Counsel for the respondent-writ petitioner.
8. Assailing the legal substantially of the order passed by the learned Single Judge, it is submitted by Mr. Lalit Kishore, learned Additional Advocate General-Ill, that once the respondent-writ petitioner had accepted the appointment on the post of Prakhand Teacher, he cannot take a somersault and advance a stand that he was forced to accept the appointment and join the same post. It is urged by him that the learned Single Judge has erroneously placed reliance on the circular dated 17.10.2008 although the respondent-writ petitioner was extended the benefit of appointment on 4.7.2007, i.e, much prior to the date of coming into force of the aforesaid circular. The learned Additional Advocate General has canvassed that the appointment of the respondent-writ petitioner as Prakhand Shikshak is in accord with the Bihar Panchayat Primary Teacher (Appointment and Service Conditions) Rules, 2006 (hereinafter referred to as ‘the 2006 Rules’) and, hence, no fault can be found with the same. It is his further submission that the circular dated 17.10.2008 has already been withdrawn vide letter No. 2955 dated 22.6.2009 of the Personnel and Administrative Reforms Department wherein it has been stipulated that the dependents of the teachers/non-teaching staff can be appointed on compassionate ground on the basis of the prescribed qualifications as Panchayat/Prakhand Teacher against the available vacancies and the appointment on compassionate ground can be made by the committee regard being had to the related conditions prescribed by the Personnel and Administrative Reforms Department. It has been further postulated in the latter letter-circular that the appointment of the dependents of the teachers/non-teaching staff on compassionate ground shall not be considered by the committee and, hence, no application for such appointment shall be sent by the officers of the Personnel and Administrative Reforms Department to the Committee. However, such application shall be filed to the concerned appointment unit which shall produce the same before the committee constituted under the 2006 Rules and if the applicant fulfills all the prescribed conditions and the vacancy exists, the applicant shall be appointed within thirty days, it is proponed by the learned Counsel for the State that neither the Rules nor the policy confer any right to be appointed on a Class-Ill post in a Government Department and the interpretation placed by the learned Single Judge on a subsequent circular which has a different contour is wholly incorrect as a conclusion has been arrived at by way of inherence as if the applicant has a hereditary right to the post. It is contended by him that in Brqjesh Kumar (supra), the learned Single Judge has misconstrued the purpose and purport of the circular issued under Memo No. 3.R-1-304/73-Ka-12754 dated 12.7.1977 as if a right is inherent in the legal heir of the deceased employee to be appointed to the post and, therefore, the said decision deserves to be overruled.
9. Mr. Uma Shankar Singh No. 2, learned Counsel for the respondent, supported the order passed by the learned Single Judge contending, inter alia, that when there is clarification by circular dated 17.10.2008 that Panchayat Shikshak and Prakhand Shikshak are not posts under the State Government, the respondent could not have been appointed on the said post. It is urged by him that any appointment, even compassionate in nature, must be commensurate with the post held by the person, who died-in-harness, and the only consideration that is required to be seen is that the appointee possesses the requisite qualifications. The decision in Brqjesh Kumar (supra) has rightly interpreted the circular dated 12.7.1977 and hence, no fault can be found with it.
10. Before adverting to the submissions raised at the Bar, in the backdrop of the present factual matrix, it is necessary to appreciate the basic concept of compassionate appointment
(i) In Haryana State Electricity Board v. Hakim Singh, the Apex Court has expressed the view that grant of compassionate appointment is to give succour to the family which has been suddenly plunged into penury due to the untimely death of the sole breadwinner. Their Lordships have, opined that the same cannot be treated or regarded as an alternative mode of appointment.
(ii) In Director of Education (Secondary) v. Pushpendra Kumar, it has been held thus:—
“8. The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependents of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provision providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependent of a deceased employee. In Umesh Kumar Nagpal v. State of Haryana this Court has taken note of the object underlying the rules providing for appointment on compassionate grounds and has held that the Government or the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. In that case the Court was considering the question whether appointment on compassionate grounds could be made against posts higher than posts in Class-III and IV. It was held that such appointment could only be made against the lowest posts in non-manual and manual categories. It was observed:
The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.”
(iii) In Commissioner of Public Instructions v. K.R Vishwanath, the Apex Court, after referring to the decisions rendered in State of Haryana v. Rani Devi,3 Life Insurance Company of India v. Asha Ramchandra Ambedkar (Mrs.);4 and, Umesh Kumar Nagpal v. State of Haryana,5 has opined thus:
“9. As was observed in State of Haryana v. Rani Deui . 1997 74 FLR 2023 SC it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premises that he was dependent on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Articles 14 or 16 of the Constitution. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. Die-in-harness scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. In Rani Devi7 case it was held that scheme regarding appointment of compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In L.I.C of India v. Asha Ramchandra Ambedkar (Mrs.) it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplates such appointments, it was noted in Umesh Kumar Nagpal v. State of Haryana that as a rule in public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.”
(iv) In State of J.&K. v. Sqjad Ahmed Mir, their lordships, after referring to earlier decisions rendered in Rani Devi (supra), Asha Ramchandra Ambedkar (supra) and Umesh Kumar Nagpal (supra), have expressed thus:—
“11. We may also observe that when the Division Bench of the. High Court was considering the case of the applicant holding that he had sought ‘compassion’, the Bench ought to have considered the larger issue as well and it is that such an appointment is an exception to the general rule. Normally, an employment in Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed except where compelling circumstances demand, such as, death of sole bread earner and likelihood of the family suffering because of the set back. Once it is proved that in spite of death of bread earner, the family survived and substantial period is over, there is no necessity to say ‘good-bye’ to normal rule of appointment and to show favour to one at the cost of interests of several others ignoring the mandate of Article 14 of the Constitution.
12. In State Haryana v. Rani Devi, it was held that the claim of applicant for appointment on compassionate ground is based on the premises that he was dependent on the deceased-employee. Strictly this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution. However, such claim is considered reasonable as also allowable on the basis of sudden crisis occurring in the family of the employee who had served the State and died while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative instructions which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right.”
(v) Yet, again in I.G (Karmik) v. Prahlad Mani Tripathi, emphasis has been laid on the mode of recruitment and the constitutional scheme for the purpose of appointment. In the said case, the Apex Court has opined that public employment is a national wealth and only in certain circumstances, exception has been carved out. When an appointment is made on compassionate ground, it should be kept confined only to the purpose it seeks to achieve, the idea being not to provide for endless compassion.
(vi) The Full Bench of Madhya Pradesh High Court in Bank of Maharashtra v. Manoj Kumar Deharia, (Writ Appeal No. 1007 of 2007), decided on 27.10.2009, has held thus:—
“10. From the enunciation of law laid down therein, it is clear that employment to Government and other public services should be open to all eligible candidates and by open competition on merit. This is in consonance with the mandate of Articles 14 and 16 of the Constitution. This general rule can be departed from only when compelling circumstances demand and one such circumstance is the death of the sole breadwinner of a family. However, it is held by the Supreme Court that appointment on compassionate ground is governed by Rules and Regulations or Scheme and taking into consideration instructions framed in this regard and the same should conform to the requirement of Articles 14 and 16 of the Constitution. That apart, the principles clearly indicates that grant of compassionate appointment is not a right, vested in nature, available to a person. It is a benefit granted de hors the normal mode of recruitment and, therefore, it is to be granted strictly in accordance to the scheme of policy formulated in this regard.”
11. The Full Bench has further proceeded to state as follows:—
“31. It is, therefore, clear that compassionate appointment is not a vested right nor is it a hereditary right. Its grant is based on the policies and scheme which are framed by carving out an exception to the General Rules governing public appointment. Once it is held that it is an exception to the General Rule and is granted in accordance with the Scheme or Rules formulated, then considerations to be made for grant of the appointment would be governed by the provision of the Rules or the scheme and in that view of the matter when the Rules and the guidelines play a dominant role, considerations have to be made in accordance with the Rules and scheme which are applicable at the time of grant………….”
19. We have referred to the aforesaid authorities to highlight that a compassionate appointment cannot be claimed as a matter of right and no one should harbour or nurture an idea that he has a vested right or he has a hereditary right. The grant is founded on the rules and in the absence of the rules, on the policies in vogue.
(vii) In Brqjesh Kumar (supra), the learned Single Judge in paragraph 3 has held thus:—
“3. The Department of Personnel and Administrative Reforms, Government of Bihar, Patna, vide resolution No. 12754 dated 12.7.1977 had made provisions for compassionate appointment of dependents/legal heirs of those Government employees, who died-in-harness. The recommendation was to be made on any Class-Ill and Class-IV posts as per the eligibility. This provision was made to give financial support to the family of Government employee dying-in-harness, as on account of sudden death of bread earner, the family was forced to face starvation and serious financial hardship. Time to time some changes were made in the resolution relating to period of limitation for filing an application and the list of dependents but so far the Constitution of the Compassionate Committee and the effect of recommendation made by the Compassionate Committee is concerned, it remained unchanged. In case of death of Government employee in-harness, the recommendation of Compassionate Committee was to be followed by the concerned department and its authorities where the deceased employee used to work. The authorities in the department had to issue appointment letter as per the recommendation of the District Compassionate Appointment Committee. The District Compassionate Committee used to consider the application of compassionate appointment of legal heirs of such Government employees, who died-in-harness. The meeting of the Compassionate Committees are held under the Chairmanship of the District Magistrate and the departmental heads of each department as members. Recommendations made by the committees are final and it cannot be altered by any individual officer, on its own decision. Any review, change, alteration is to be made by the committee itself.”
(viii) Thereafter, the learned Single Judge has referred to the 2006 Rules and the notification dated 22.6.2009 and has held as follows:—
“10……The notification dated 22.6.2009 issued by the Department of Personnel and Administrative Reforms, Government of Bihar dated 22.6.2009 will have application, in case of such ‘teachers’, who were either absorbed or appointed, on or after 1.7.2006 Such appointed teachers will come within the definition of ‘teacher’ under Rule 2(iv) of 2006 Rules, as they have been appointed following the procedure for appointment under Rule 4. In case of such teachers only Rule 10 of 2006 Rules relating to compassionate appointment will have application and their legal heirs shall be appointed on Panchayat/Prakhand Teachers' posts in the fixed salary, since, the teachers appointed under 2006 Rules belong to different class.”
12. We have referred to the circular No. 12754 dated 12.7.1977 We have carefully scanned the language employed in the said circular. To have a complete picture, it is apt to reproduce the English translation of the circular, the same being in Hindi.
“Memo No. 3.R-1-304/73-Ka-12754 dated 12.7.1977
All Departments of the Government/All the Heads of the Departments.
Subject.—Priority in appointment to the post of Class-3 and Class-4 understate Government to the dependent family members of such Government servants, Who died casually during service period.
The undersigned is directed to say that on account of casual death of Government servant during service period, the dependent of his family member has to face several financial crisis in many cases. The question of providing assistance in such a time of distress, to the family of concerned Government servant, was under consideration before the Government for the last some time. In this regard, the State Government has decided to give priority in appointment to one of the family members of such Government servant where there is no need to consult Public Service Commission, to the post of Class-3 and Class-4. Following conditions and facts shall be essential for the said priority.
1. The financial condition of the family of deceased Government servant is not sound, i.e any member of the said family does not work for earning any type of livelihood and, if he is working, his income is not sufficient to maintain the entire family and consider his property and indebtedness, it is proper to give such benefit.
2. The family member of Government servant of the aforesaid category possesses qualification prescribed for the said post and his age is within prescribed age-limit. Relaxation in age-limit may be given under Rule 54 of Service Code in special circumstance.
3. As per Government order No. 8167 Ni dated 21.6.1966 issued by Appointment Department, it is essential for the candidate to get his name enrolled in Employment Exchange for getting appointment under the State Government but the family member of such Government employee is exempted from the said order. Simultaneously, the appointment officer shall himself decide whether the concerned person is eligible for appointment to the said post or not.
4. Generally this benefit shall be available for two years after the date of death of Government employee.
5. The appointment shall be absolutely on temporary and ad hoc basis and it shall not be considered for seniority in cadre. Their appointment shall be regularized only after fulfilling prescribed procedure.
6. The word ‘family’ as mentioned in this order commonly means-wife, son and unmarried daughters.
7. At the time of submitting application for ad hoc appointment, the family member of the deceased Government employee shall also have to furnish necessarily the enclosed informations.
8. The appointing officer after examining the facts of application submitted for appointment, on compassionate ground independently shall obtain the order of the concerned department and the department shall take opinion of Personnel Department on every matter before giving order.
The Government has also decided that all the concerned departments shall give direction to this effect to all the public enterprises, autonomous bodies and local institutions and municipalities, etc., falling within their jurisdiction.”
13. On a reading of the said circular, it is vivid that the legal heirs/dependents/representatives are to be given preference in respect of Class-Ill and Class-IV posts under the said circular where consultation with the Public Service Commission is not necessary. Conditions have been laid down for giving such preference. On a scrutiny of the same, we are not in a position to hold that any indefeasible right has been conferred on the dependents or legal heirs to claim the said posts as a matter of right. As has been laid down in various pronouncement is an exception and dependent on the rule or the policy of the Government. The circular, as we understand, confers a right to be considered in respect of these posts. If it is not possible to give the benefit of such a post, a person cannot seek a writ of mandamus.
14. In Brajesh Kumar (supra), the learned Single Judge has not appreciated the circular in proper perspective and has opined as if the dependent or the legal heir had a right in law. The State Government by circular dated 17.10.2008 has opined that Panchayat Shikshak and Prakhand Shikshak are not posts under the State Government and, therefore, no appointment can be given on compassionate ground in respect of the said posts. The said circular has been withdrawn by circular No. 2955 dated 22.6.2009 wherein it has been postulated that the dependents of teaching/non-teaching staff can be appointed on compassionate ground on the basis of the prescribed qualification as Panchayat Teacher against the available vacancies. Rule 2(i) of the 2006 Rules defines ‘Primary School’. It reads as under:—
“2(i) ‘Primary School’ means those Government and nationalised Schools where education up to Class-V is at present imparted.”
15. Rule 2(ii-iv) of 2006 Rules, which is relevant for the present purpose, is reproduced below:—
“2. (ii) ‘Middle School’ means those Government/Nationalised Schools where education up to Class-VII or Class-VIII is at present imparted.
(iii) ‘Elementary School’ means those Government/Nationalised Primary and Middle Schools.
(iv) ‘Panchayat Elementary Teacher’ means Prakhand Shikshak and Panchayat Shikshak employed as per Clause 3 of the Rules in the Elementary Schools of the State.”
16. From Rule 4 onwards, there is a procedure for appointment of teachers. Rule 10 deals with appointment on compassionate basis. We are really concerned with Rule 2. On a perusal of the scheme, especially Rule 2(ii) it is clear as crystal that the schools have been taken over by the Government. The responsibility of management and control of the schools has been shifted to the Panchayat Raj Institution. The State Government by the circular dated 22.6.2009 has laid down the procedure for appointment of the dependents of the teaching and non-teaching employees on compassionate basis to the post of teacher. The said circular, which is in Hindi, on being translated into English, reads as follows:—
“Letter No. 3.Anu-17/2005-Ka-2955.Government of Bihar
Personnel and Administrative Reforms Department
Saryug Prasad,
Deputy Secretary to the Government,
All Departments,
All the Heads of the Department. All the Divisional Commissioners. All the District Officer-cum-Chairman, District Compassionate Committee.
Patna (15), 22 June, 2009.
Subject: As regards making appointment of dependents of teaching and non-teaching employees to the post of teacher on compassionate ground.
I am directed to say that keeping in view the direction contained in letter No. 6905 dated 17.10.2008 of Personnel and Administrative Reforms Department and letter No. 2209 dated 28.12.2006 of Human Resources Development Department, a few District Officers have sought guidelines with reference to appointment of dependents of teaching and non-teaching employees on compassionate ground.
2. After deliberation with the Human Resources Development Department on this subject, it became clear that a provision in Rule 10 of Bihar Panchayat Primary Teacher (Employment and Service Conditions) Rules, 2006 has been made as follows:—
10. Employment on the basis of compassionate ground.—The dependents of teaching/non-teaching employees could be appointed on compassionate ground against the available vacancies of Panchayat Teachers/Block Teachers in conformity with the prescribed qualification, if they give their clear consent for it. Appointment could be made on the basis of compassionate ground by the aforesaid committees in the light of other conditions prescribed for appointment by the Personnel and Administrative Reforms Department of the Government, it shall be essential for untrained dependents to obtain training within a maximum period of 6 years after appointment.” There is also a similar provision contained in Bihar Nagar Primary Teachers (Employment and Service Conditions) Rules, 2006. The word used for. ‘Committees’ in the aforesaid provision means the committees constituted in the said rules.”
3. In this way it is clear that dependents of teaching/non-teaching employees could be appointed against the posts of Panchayat Teacher/Block Teacher/Town Teacher, etc. on a fixed pay by the committees constituted in the aforesaid rules.
4. Therefore, the matters related to the dependents of teaching and non-teaching staff cannot be considered by the District Compassionate Committees. Subsequently, the officers of Human Resources Department shall not send the applications, etc. of the dependents of teaching and non-teaching employees to the District Compassionate Committee. Such applications shall be submitted in the concerned Employment Unit (Exchange) and the concerned unit (exchange) shall place them before the Committee Constituted under the said rules. If the applicants are fulfilling all the qualifications/conditions required for such appointment and vacancies are available, then it would be necessary to appoint them within 30 (thirty) days. In case vacancies are not available for the time being, then the concerned officer of the Human Resources Development Department shall have to ensure such appointment within 30 (thirty) days of the availability of vacancy.
5. Human Resources Development Department has accorded the consent in respect of aforesaid instructions,
6. The aforesaid letter No. 6905 dated 17.10.2008 of the Personnel and Administrative Reforms Department is cancelled herewith.
7. You are requested to ensure that all the officers working under you have been apprised of the aforesaid instructions.
Yours faithfully,
Sd/- (Illegible)
22.6.2009
(Saryug Prasad)
Deputy Secretary to the Government.”
17. We have referred to the above circular in extenso only to appreciate that a legal heir or dependent having no legal right to be appointed to a Government post cannot claim it as a matter of right. The State Government has withdrawn the preference that existed in the circular dated 12.7.1977 It has made an alternative arrangement that the teachers serving in the erstwhile Government schools, when die-in-harness, their legal heirs can be accommodated as Prakhand Teachers. The view expressed in Brajesh Kumar (supra) that they cannot be appointed in the said schools is really not a matter to be adverted to by this Court as it is the policy decision of the Government to appoint such teachers in those schools by carving out an exception. As has been stated in many a decisions, compassionate appointment by its very nature is an exception and the same has to be treated as an exception for all purposes. Possibly, the matter would have been different had the rule been in force conferring a particular privilege on the legal heirs or dependent of the Government teacher who died-in-harness. That not being the position, the Government has the power/authority to change the policy from time to time and that having been done, no fault can be found with the appointment given to the appellant on the post of Prakhand Teacher in the Koilwar Block.
18. In view of our preceding analysis, we are unable to persuade ourselves to accept the view expressed in Brajesh Kumar (supra) and, accordingly, the same stands overruled. Any decision following the said judgment is deemed to be overruled. In the result, the appeal is allowed and the order passed by the learned Single Judge is set aside. However, in the facts and circumstances of the case there shall be no order as to costs.
19. Appeal Allowed.
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