STATE OF BIHAR AND ORS. versus DILIP KUMAR AND ANR

Citation: [2019] 8 S.C.R. 1180 · Decided: 18-07-2019 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SUPREME COURT REPORTS
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STATE OF BIHAR AND ORS.
v.
DILIP KUMAR AND ANR
(Civil Appeal No. 5205 of 2019)
JULY 18, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
INDIRA BANERJEE, JJ.]
Bihar Municipal Body Elementary Teachers (Employment and
Service Conditions) Rules, 2006: r. 10 – Appointment on
compassionate ground – On facts, respondents granted
compassionate appointment on the post of Nagar Shikshak in terms
of r. 10 – Thereafter, issuance of instructions by the State
Government that posts of Panchayat Teachers and Block Teachers
not borne on the service of the Government, thus not within the
jurisdiction of the Compassionate Appointment Committee to
recommend appointments to those posts – Writ petition by
respondents seeking mandamus for their appointment on a
compassionate basis to posts under the control of the State
Government – Allowed by the Single Judge of the High Court –
Subsequently, issuance of instructions by the State Government that
the Committee could make compassionate appointments to the posts
of panchayat teachers/block teachers/town teachers – Division
Bench upheld the order of the Single Judge – On appeal, held:
High Court erred in directing the State Government to appoint the
respondents in its regular service despite the fact that their
appointments were made after the 2006 Rules were brought into
force – Their case would be governed by the 2006 Rules –
Respondents having accepted their appointments as Nagar
Shikshaks, it was not open to them to assert, that they should be
appointed in the service of the State Government – Also, no executive
instruction could have superseded the Rules – Thus, the order of
the High Court set aside, however, liberty granted to respondents
to approach the State Government for suitable relief.
Allowing the appeal, the Court
HELD: 1.1 With the enforcement of the Bihar Municipal
Body Elementary Teachers (Employment and Service Conditions)
Rules, 2006, Rule 10 governs the appointment of Nagar
   [2019] 8 S.C.R. 1180
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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 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. [Para 9] [1186-G-H; 1187-A-B]
1.2 In the instant case the respondents have been appointed
after 1 July 2006. Their case would hence be governed by the
2006 Rules. The observations contained in the decision of the
Division Bench in Mukesh’s case that the appellants who were
appointed after 01.07.2006, the date on which the Rules came
into the force, are not entitled to claim appointment on regular
pay scales will apply to the respondents in the instant 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, liberty is granted
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 2010 and in the same terms as ordered by this Court
in its judgment in Mukesh’s case. The judgment and order of the
High Court is set aside. [Paras 11, 12] [1189-A-C]
Mukesh v State of Bihar (2017) 5 SCC 383 - relied on.
Vishwanath Pandey v State of Bihar (2013) 10 SCC
545 ; State of Bihar v Pooja Mishra SLP(C) No. 029453
of 2015 ; State of Bihar v Sanjay Kumar SLP(C) No.
038376 of 2016 – referred to.
STATE OF BIHAR AND ORS. v. DILIP KUMAR AND ANR
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Case Law Reference
(2013) 10 SCC 545
referred to
Para 5
(2017) 5 SCC 383
relie

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