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IN THE SUPREME COURT OF INDIA    

CIVIL APPELLATE JURISDICTION       

Civil Appeal  No  005205  of  2019   (Arising out of SLP(C)No 33282 of 2016)  

State of Bihar and Ors     ..Appellants   

VERSUS  

Dilip Kumar and Anr      ..Respondents   

J U D G M E N T  

Dr Dhananjaya Y Chandrachud, J  

1 A Division Bench of the High Court of Judicature at Patna by its judgment  

dated 30 March 2015 affirmed the view of the learned Single Judge, and directed  

the grant of compassionate appointment to the respondents on a regular scale of  

pay in the services of the State Government and not on the post of Nagar  

Shikshaks to which they were appointed. This direction was based on an instruction  

dated 17 October 2008 issued by the Government of Bihar, which has since been  

withdrawn. Aggrieved by order of the Division Bench, the State of Bihar is in appeal.  

2 The father of the first respondent died in harness on 7 May 2006, while in  

employment as an Assistant Teacher in a primary school.  The mother of the  

REPORTABLE

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second respondent was also an Assistant Teacher in a primary school when she  

died in harness on 9 September 2006.  On 25 January 2008 and 27 June 2008,  

the District Compassionate Appointment Committee1 considered the request of the  

respondents for compassionate appointment. On 12 April 2008, the first  

respondent was offered employment on the post of Nagar Shikshak under Rule 10  

of the Bihar Municipal Body Elementary Teachers (Employment and Service  

Conditions) Rules, 20062. On 19 August 2008, the second respondent was offered  

appointment as a Nagar Shikshak on the basis of the recommendation of the  

DCAC.  On 17 October 2008, the Personnel and Administrative Reforms  

Department of the Government of Bihar, issued an instruction stating that the posts  

of Panchayat Teachers and Block Teachers are not borne on the service of the  

government, hence it is not within the jurisdiction of the DCAC to recommend  

appointments to those posts. The instruction stated thus:  

“..that it has been clear from the perusal of the minutes of the  

meeting of few District Compassionate Committees that the  

recommendation has been made for the appointment against  

the post of Panchayat Teacher, Block teacher, town teacher on  

the compassionate ground by the District Compassionate  

Committee. The post of the Panchayat Teacher, Block Teacher  

are not the post of the Government and making a  

recommendation for the appointments on such post on the  

compassionate ground does not fall under the jurisdiction of  

the compassionate committee.   

As per the direction, I have to say that it should be ensured that  

the recommendation be not made for the appointment against  

the appointment on post of the Panchayat Teacher, Block  

Teacher.  If any such recommendation has been made then it  

should be reconsidered by the District Compassionate  

Committee and recommendation be ensured as per the  

circular issued by this.”  

                                                           1 DCAC  2 2006 Rules

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3 The respondents instituted writ proceedings under Article 226 before the  

High Court, seeking a mandamus for their appointment on a compassionate basis  

to posts under the control of the State Government.  On 15 May 2009, a learned  

Single Judge of the High Court accepted the grievance of the respondents that the  

posts of Nagar Shikshak to which they were appointed were not government posts  

with a regular pay scale but were posts with fixed emoluments.  This, in the view of  

the learned Single Judge, was contrary to the Government Instruction dated 17  

October 2008. In consequence, while allowing the writ petition, the learned Single  

Judge directed that the recommendations of the DCAC be implemented “strictly” in  

accordance with the instruction dated 17 October 2008.  

4 Subsequently, on 22 June 2009, the State Government issued a fresh  

instruction which clarified that it is permissible for the Committee constituted under  

the Rules to make compassionate appointments to the posts of panchayat  

teachers/block teachers/town teachers.  The relevant part of the instruction is  

extracted below:  

“..the provision has been made as per the Rule 10 of Bihar  

Panchayat Primary Teacher Employment and Service  

Conditions Rules, 2006 :-  

“10 Employment/Appointment on the basis of compassionate  

ground:- Employment/appointment against the vacancy  

available on the post of Panchayat Teacher/Block Teacher  

could be made in accordance with the eligibility prescribed on  

the basis of the compassionate ground in respect of the  

dependents of the teaching or non-teaching staff, if he gives  

the consent clearly for this :-  

In view of the terms and conditions prescribed for the  

appointment, the appointment on the compassionate ground  

by the aforesaid committee, in view of the Circular of the  

Personnel & Administrative Department of the Government. It  

will be compulsory for untrained dependents to obtain the  

training within a period of six years for the date of appointment”.

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Such provisions has also been made under Bihar Panchayat  

Primary Teacher Employment and Service Conditions Rules,  

2006.  In the aforesaid provisions, the meaning of the word  

committee is with respect to the committee constituted under  

the Rule.  In this way, it is clear that the appointment of the  

dependent of the teaching and non-teaching employees can  

be made on the basis of compassionate basis on the post of  

Panchayat Teacher/Block Teacher/town Teacher on the  

regular pay by the committee constituted under the aforesaid  

rules.”  

5 A Letters Patent Appeal was filed by the state against the decision of the  

Single Judge. The Division Bench, by its judgment dated 30 March 2015, held that  

since the death of the employees while in service had taken place before the 2006  

Rules were enforced, and the circular/instruction dated 17 October 2008 clarified  

that compassionate appointments were required to be made to a post in the service  

of the government, the writ petition had been correctly allowed.   The Division  

Bench held that the instruction dated 22 June 2009, recalling the earlier  

circular/instruction, would not take away the effect of the mandamus issued by the  

Single Judge. The High Court also observed that in Vishwanath Pandey v State  

of Bihar3 (“Vishwanath Pandey”), this Court had affirmed the view of a Single  

Judge of the High Court that where the occurrence had taken place prior to the  

enforcement of the Rules of 2006, the appointment would have to be made as a  

teacher under the government.  

6 Learned counsel appearing on behalf of the appellants submitted that   

compassionate appointments are governed by the 2006 Rules. Under Rule 10,  

Nagar Shikshaks are to be appointed on compassionate grounds. Moreover, Rule  

20 supersedes all previous rules, resolutions, orders and instructions.  In the  

                                                           3 (2013) 10 SCC 545

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present case, it was urged that the respondents consented to their appointment  

and joined the post of Nagar Shikshak in terms of Rule 10. Hence, the High Court  

was not justified in directing that their services to be shifted from the posts of Nagar  

Shikshak to  posts under the control of the Government.  In the facts of this case,  

it has been urged that the offers of appointment to the respondents as Nagar  

Shikshaks were made prior to the instruction dated 17 October 2009.  Moreover,  

the appointments as Nagar Shikshaks being in accordance with the 2006 Rules,  

the High Court was not justified in directing the state to take over the services.  In  

this context, reliance has been placed on a judgment rendered by a two Judge  

Bench of this Court in Mukesh v State of Bihar4 (“Mukesh”) on 3 April 2017,  

where the decision of this Court in Vishwanath Pandey has been considered and  

distinguished.  

7 On the other hand, learned counsel appearing on behalf of the respondents  

supported the judgment of the High Court for the reasons which weighed in the  

grant of relief. Learned counsel submitted  that Letters Patent Appeals filed by the  

State against similar decisions of the learned Single Judges of the High Court were  

dismissed, and this Court dismissed the Special Leave Petitions filed under Article  

136 of the Constitution by the State. In this context, reliance has been placed on  

the orders passed by this Court in:  

(i) State of Bihar v Pooja Mishra5 (“Pooja Mishra”); and  

(ii) State of Bihar v Sanjay Kumar6 (“Sanjay Kumar”).  

                                                           4 (2017) 5 SCC 383  5 SLP(C) No. 029453 of 2015  6 SLP(C) No. 038376 of 2016

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The above Special Leave Petitions were dismissed on 9 October 2015 and 11  

November 2016 respectively.  It was urged that this Court should follow the same  

course of action by dismissing the civil appeal.     

8 The    2006    Rules    were   notified   on  1 July 2006.  Rule  3  contains a  

categorisation of Elementary teachers:  

“3. Category of Town Elementary Teachers – There shall be  

two category of Town Elementary Teachers :-  

(A) Nagar Shikshak (Trained)  

(B) Nagar Shikshak (Untrained)”  

Rule 8 provides for conditions of eligibility. Rule 9 provides for the procedure for  

appointment. Rule 10 contains the following provision:  

“10. Appointment on compassionate ground :- The  

employment may be made of the dependents of teaching/ non-

teaching employees on compassionate ground as per  

determined qualification on the post of Town Teacher (Trained)  

and Town Teacher (Un-Trained) against the available  

vacancies, if he gives manifestly his consent for this. The  

appointment may be made by aforesaid Committee in the light  

of other conditions concerned with appointment on  

compassionate ground by the Personnel Department of  

Government. After the employment, un-trained dependents  

shall acquire training within maximum 6 years.”  

Rule 20, which contains a repeal and savings provision, is in the following terms:  

“20. Repeal & Saving :- (i) From the date of enforcement of this  

Rules, all the previous Rules, Resolutions, Orders and  

Instructions regarding the employment of Primary Teachers/  

Physical Teachers in urban area shall be deemed repealed.  

(ii) But notwithstanding this repeal no effect shall be made on  

any earlier Rules, Resolution, Order, Instruction etc. regarding  

the salary etc. and Service Conditions of the teachers.”  

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9 With the enforcement of the 2006 Rules, Rule 10 governs the appointment  

of Nagar Shikshaks on compassionate grounds. The respondents were appointed  

on 12 April 2008 and 19 August 2008,  after the enforcement of the 2006 Rules.  

Their appointments were in terms of  Rule 10 of the 2006 Rules. The respondents  

accepted the appointments.  The learned Single Judge, in placing reliance on the  

instruction dated 17 October 2008, failed to notice the 2006 Rules. The Division  

Bench was of the view that withdrawal of the instruction dated 17 October 2008 by  

the subsequent instruction dated 22 June 2009 would not obviate  compliance with  

the mandamus issued by the Single Judge on 15 May 2009.  The Division Bench  

ignored the fact that both the respondents were appointed in terms of Rule 10 of  

the 2006 Rules. Having accepted the appointment, it was not open to them to  

assert, as they did, that they should be appointed in the service of the Government  

of Bihar. Moreover, no executive instruction could have superseded the rules.  

10 Learned counsel appearing on behalf of the respondents has placed reliance  

on the orders of this Court dated 9 October 2015 and 11 November 2016  

dismissing the Special Leave Petitions filed under Article 136 by the State in the  

cases of Pooja Mishra and Sanjay Kumar. The above orders, by which this Court  

dismissed the Special Leave Petitions against the decision of the Patna High Court,  

will not aid the submissions of the respondents. This is for the simple reason that  

subsequently, a two Judge Bench of this Court in Mukesh, in its decision dated 3  

April 2017 considered the provisions of the 2006 Rules as well as the precedent  

on the subject. This Court extracted from the decision in Vishwanath Pandey (on  

which reliance has also been placed by the impugned judgment of the Division  

Bench of the High Court).  In Mukesh’s case, this Court held:

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“By the impugned judgment, a Division Bench of the High Court  

correctly held that the Appellants have no legal right to seek  

appointment on compassionate grounds. Compassionate  

appointments are not a source of recruitment and they are made  

to provide succour to the family of an employee who dies in  

harness. In the State of Bihar compassionate appointments are  

governed by instructions issued by the Government. Some of  

the Appellants were recommended for appointment to Class III  

posts on a regular basis by the District Compassionate  

Committee. However, they were appointed as Prakhand  

Teachers/Panchayat Shikshaks/ Nagar Shikshaks, etc. on a  

fixed pay. The Appellants could not have been appointed on a  

fixed pay and they are entitled for appointment to either on  

Class III or Class IV posts on regular basis or payment of regular  

pay scale in the posts of as Prakhand Teachers/Panchayat  

Shikshaks/Nagar Shikshaks, etc. in which they are working at  

present. Some of the Appellants who were recommended for  

appointment to Class III posts but were appointed as Prakhand  

Teachers/Panchayat Shikshaks/Nagar Shikshaks, etc. on fixed  

pay are similarly situated to Vishwanath Pandey and they are  

entitled to be appointed on a regular pay scale.”   

In regard to those of the appellants who were appointed after 1 July 2006 (the date  

of enforcement of the 2006 Rules), this Court observed:  

“The other Appellants who were appointed after 01.07.2006  

are not entitled to the relief granted to those who were  

recommended for appointment to Class III or Class IV posts  

prior to that date. A Full Bench of the Patna High Court in State  

of Bihar and Others v. Rajeev Ran Vijay Kumar, reported in  

(2010) 3 PLJR 294 (FB), held that the dependents of deceased  

Government employees do not have a legal right to be  

appointed in Government posts. Their appointments on  

compassionate grounds shall be in accordance with Bihar  

Panchayat Primary Teacher (Employment and Service  

Conditions) Rules, 2006 (hereinafter referred to as the ‘Rules’)  

which came into force w.e.f. 01.07.2006. Rule 10 of the said  

Rules provides for employment on compassionate grounds to  

the dependents of teaching/ non-teaching employees against  

available vacancies of Panchayat Teachers/Block  

Teachers/Prakhand Teachers, etc. Such appointments can be  

made only on a fixed pay by the committee constituted under  

the Rules. The Appellants who have not been  

recommended for appointment to Class III or Class IV  

posts prior to 01.07.2006 are not covered by Vishwanath  

Pandey’s case (supra). On the other hand, they are squarely

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covered by the judgment of Full Bench of the Patna High Court.  

They are not similarly situated to those who were  

recommended for appointment to Class III posts prior to  

01.07.2006. The Appellants, who were appointed after  

01.07.2006, the date on which the Rules came into force,  

are not entitled to claim appointment on regular pay  

scales. It is relevant to note that the judgment of the Full Bench  

of the High Court of Patna was challenged before this Court.  

The said SLP was withdrawn with liberty granted to the  

petitioners therein to approach the Government for suitable  

relief.”  

(Emphasis supplied)  

11 Admittedly, in the present case as well, the respondents have been  

appointed after 1 July 2006.  Their case would hence be governed by the 2006  

Rules. The above observations contained in the decision of the Division Bench in  

Mukesh will apply to the respondents in the present case.  The High Court was  

manifestly in error in directing the Government of Bihar to appoint the respondents  

in its regular service despite the fact that their appointments were made after the  

2006 Rules were brought into force.  The respondents duly accepted their  

appointments as Nagar Shikshaks.  However, we grant liberty to the respondents  

to approach the State Government for suitable relief in terms of the orders passed  

in Special Leave Petition (C) No 29655 of 20107 and in the same terms as ordered  

by this Court in its judgment dated 3 April 2017 in Mukesh.  

12 The civil appeal is allowed. The judgment and order of the High Court dated  

30 March 2015 is set aside.  There shall be no order as to costs.  

                                                           7 Rajiv Ranvijay Kumar v State of Bihar

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13 Application for impleadment is disposed of.  Pending application(s), if any,  

are also disposed of.  

.....................................................J                     [Dr Dhananjaya Y Chandrachud]        

.....................................................J              [Indira Banerjee]    New Delhi;  July 18, 2019