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Patna High Court

BiharversusManoj Kumar

Decided
Disposal
DISMISSED

Holding

The appeal is dismissed; the Single Judge’s order directing consideration for Class III/IV compassionate appointment stands.

Summary

The petitioner, son of a deceased assistant teacher, applied for a compassionate appointment after his father's death in 2015. The Single Judge ordered the authorities to consider him for a Class III or Class IV post, rejecting the contention that only Panchayat Teacher posts were permissible. The State officials appealed, relying on Rule 10 of the Bihar Panchayat Elementary Teacher Rules, 2006, and earlier case law limiting compassionate appointments to Panchayat Teacher posts. The High Court observed that the appointment had already been made without reservation, creating estoppel by conduct, and that Rule 10 does not prohibit appointments to Class III/IV posts. Citing Supreme Court precedent on the humanitarian purpose of compassionate appointments, the Court held the Single Judge’s order was valid and dismissed the intra‑court appeal.

Issues considered

  • Whether the direction to consider the petitioner for compassionate appointment to Class III or Class IV posts is permissible under the Bihar Panchayat Elementary Teacher (Employment and Service Conditions) Rules, 2006 and existing case law.

Subjects

  • compassionate appointment
  • estoppel
  • Bihar education rules
  • Class III post
  • Class IV post
  • public service recruitment
  • humanitarian exception

Judgment

                    IN THE HIGH COURT OF JUDICATURE AT PATNA
                              Letters Patent Appeal No. 912 of 2023
                                                 In
                           Civil Writ Jurisdiction Case No.1224 of 2017
             ======================================================
          1. The State of Bihar through Chief Secretary, Govt. of Bihar, Patna.
          2.     The Principal Secretary, Education Department, Govt. of Bihar, Patna
          3.     The Director, Primary Education, Education Department, Govt. of Bihar,
                 Patna
          4.     The District Magistrate, Purnea,-cum-Chairman, The District Compassionate
                 Committee, Purnea
          5.     The District Education Officer, Purnea.
          6.     The District Programme Officer (Establishment), Purnea
          7.     The Block Education Officer, Banmankhi, Purnea.


                                                                          ... ... Appellants
                                              Versus
               Manoj Kumar, Son of Late Arun Kumar Das, Resident of Village -
               Madhuban, Post Chopra Ramnagar, P.S. Jnki Nagar, District - Purnea


                                                          ... ... Respondent
               ======================================================
               Appearance :
               For the Appellants     :       Mr. Prabhakar Jha, G.P.-27 and Mr. Mukund
                                              Mohan Jha, A.C. to G.P.-27
               For the Respondent     :       Mr. Manish Kumar, Advocate
               ======================================================
               CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
                       and
                       HONOURABLE MR. JUSTICE SHAILENDRA SINGH
                                     ORAL ORDER

               (Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

4   23-04-2026                 Heard learned counsel for the parties.

                               2. The present intra court appeal has been preferred

                   against the judgment and order dated 01.12.2017 passed by the

                   learned Single Judge in C.W.J.C. No. 1224 of 2017, whereby the

                   writ application filed by the writ petitioner (respondent herein)
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           was disposed of.

                         3. The brief facts of the case are that the father of the

           respondent (writ petitioner) was working as an Assistant Teacher

           in Primary School, Rampur Tilak (North), Anchal Banmankhi,

           District Purnea, and died in harness on 16.10.2015. Following

           his death, the respondent submitted an application dated

           31.12.2015 before the Block Education Officer, Banmankhi,

           Purnea, seeking appointment on compassionate grounds along

           with requisite documents. Thereafter, the respondent submitted a

           representation dated 23.08.2016 before the District Magistrate,

           Purnea, requesting consideration of his claim for compassionate

           appointment. However, no decision was communicated to the

           respondent on his claim. Aggrieved thereby, the respondent

           preferred C.W.J.C. No. 1224 of 2017 for appointment on

           compassionate grounds, which was disposed with a direction to

           the appellants to consider the case of respondent for

           compassionate appointment on Class III or Class IV post.

                         4. The learned Single Judge, while disposing the said

           writ petition, vide order dated 01.12.2017, observed as follows:

                                         “5. Counsel for the petitioner submits
                                   that the petitioner has no choice for
                                   appointment on the post of teacher and he is
                                   ready to accept any post commensurate with
                                   his qualification and availability of the post
                                   whether Class III or Class IV and the claim of
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                                   the petitioner for compassionate appointment
                                   cannot be denied on the ground that the
                                   petitioner has not passed TET examination
                                   and, as such, he cannot be offered
                                   appointment as Panchayat Teacher.
                                            6. Considering the scheme of
                                   compassionate appointment, the respondents
                                   are under obligation to consider the case of
                                   the    petitioner    for   appointment    on
                                   compassionate ground against Class III or
                                   Class IV posts instead of insisting of
                                   appointment against the post of Panchayat
                                   Teacher and refusing to entertain the case of
                                   the petitioner on the ground that petitioner
                                   has not passed TET examination, in the
                                   compelling circumstance, the Court is
                                   constrained to direct the respondent
                                   authorities to consider the case of the
                                   petitioner for compassionate appointment, as
                                   the scheme of compassionate appointment
                                   was adopted by the State Government, as a
                                   social security measure, to tide over the
                                   financial crisis on account of death of the
                                   bread earner. The respondents are under
                                   obligation to consider the case of the
                                   petitioner for appointment on compassionate
                                   ground against the available Class III or
                                   Class IV post, as the case may be, within a
                                   period of 60 days from the date of
                                   receipt/production of a copy of this order
                                   along with the necessary documents required
                                   for consideration for appointment on
                                   compassionate ground.”

                         5. Learned counsel for the appellants submits that, in

           view of Rule 10 of the Bihar Panchayat Elementary Teacher

           (Employment           and      Service        Conditions)   Rules,   2006,

           compassionate appointment of dependents of deceased teachers

           can be made only on the post of Panchayat Teacher and not on
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           any Class III or Class IV posts. It is submitted that the said

           position stands settled by the Full Bench of this Court in Rajiv

           Ran Vijay Kumar vs. State of Bihar, (2010) 3 PLJR 294, as

           affirmed by the Hon’ble Supreme Court in Mukesh Kumar vs.

           State of Bihar (Civil Appeal Nos. 4776–4777 of 2017), with

           limited exception for cases recommended prior to 01.07.2006.

                         6. Learned counsel further submits that the writ

           petitioner does not possess the requisite qualification, including

           TET, for appointment as Panchayat Teacher. It is further

           submitted that vide Resolution No. 1128 dated 21.08.2020 the

           posts of Clerk and Peon have been declared as a dying cadre and

           redesignated as Vidyalaya Sahayak / Vidyalaya Parichari. It is

           thus submitted that the direction of the learned Single Judge to

           consider the petitioner for appointment on Class III or Class IV

           posts is contrary to the settled legal position and warrants

           interference.

                         7. Learned counsel for the respondent submits that the

           learned Single judge had rightly passed the impugned order after

           considering the facts of the case and therefore the same requires

           no interference.

                         8. The limited issue which arises for consideration is

           that whether the direction issued by the learned Single Judge for
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           consideration of the writ petitioner’s claim for compassionate

           appointment against available Class III or Class IV posts, in

           furtherance of the object of the compassionate appointment

           scheme, warrants interference in intra-court appeal.

                         9. At the outset, it should be noted that for compliance

           of the impugned order, the respondent had filed M.J.C. No. 1931

           of 2018. Pursuant to the order dated 01.02.2024 passed in

           M.J.C. No. 1931 of 2018, the order of the learned Single Judge

           has been complied with, and the respondent (writ petitioner) has

           been given appointment. It should also be noted that the said

           appointment has been made without any reservation or

           exception that the said appointment would be subject to the

           outcome of the present Letters Patent Appeal, when it was well

           within the knowledge of the appellants that they had challenged

           the order of the learned Single Judge.

                         10. As such, by unconditionally appointing the

           respondent without specifying that it would be ‘subject to the

           outcome of the appeal’, the appellants have effectively waived

           their right to challenge the impugned order. This creates an

           ‘estoppel by conduct’, as the appellant’s full and unreserved

           compliance is legally inconsistent with the pursuit of present

           Letters Patent Appeal.
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                         11. At this juncture, it is pertinent to take note of the

           Judgment rendered by the Hon’ble Supreme Court in Tata Iron

           & Steel Co. Ltd. v. Union of India reported in (2001) 2 SCC 41,

           relevant paragraph of which is reproduced as under:

                                               “21.Phipson on Evidence (14th
                                   Edn.) has the following to state as regards
                                   estoppels by conduct.
                                               “Estoppels by conduct, or, as they
                                   are still sometimes called, estoppels by matter
                                   in pais, were anciently acts of notoriety not
                                   less solemn and formal than the execution of
                                   a deed, such as livery of seisin, entry,
                                   acceptance of an estate and the like, and
                                   whether a party had or had not concurred in
                                   an act of this sort was deemed a matter which
                                   there could be no difficulty in ascertaining,
                                   and then the legal consequences followed.
                                   (Lyon v. Reed [(1844) 13 M&W 285] M&W at
                                   p. 309). The doctrine has, however, in modern
                                   times, been extended so as to embrace
                                   practically any act or statement by a party
                                   which it would be unconscionable to permit
                                   him to deny. The rule has been authoritatively
                                   stated as follows: ‘Where one by his words or
                                   conduct wilfully causes another to believe the
                                   existence of a certain state of things and
                                   induces him to act on that belief so as to alter
                                   his own previous position, the former is
                                   concluded from averring against the latter a
                                   different state of things as existing at the same
                                   time.’ (Pickard v. Sears [(1837) 6 Ad & El
                                   469] A&E at p. 474). And whatever a man's
                                   real intention may be, he is deemed to act
                                   wilfully ‘if he so conducts himself that a
                                   reasonable man would take the representation
                                   to be true and believe that it was meant that
                                   he should act upon it’.
                                               Where the conduct is negligent or
                                   consists wholly of omission, there must be a
                                   duty to the person misled (Mercantile Bank v.
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                                   Central Bank [1938 AC 287 : (1938) 1 All ER
                                   52 : 107 LJPC 25 : 158 LT 269 (PC)] AC at
                                   p. 304 and National Westminster Bank v.
                                   Barclays Bank International [1975 QB 654 :
                                   (1974) 3 All ER 834 : (1975) 2 WLR 12] ).
                                   This principles sits oddly with the rest of the
                                   law of estoppel, but it appears to have been
                                   reaffirmed, at least by implication, by the
                                   House of Lords comparatively recently
                                   (Moorgate Mercantile Co. Ltd. v. Twitchings
                                   [1977 AC 890 : (1976) 2 All ER 641 : (1976)
                                   3 WLR 66 (HL)] ). The explanation is no
                                   doubt that this aspect of estoppel is properly
                                   to be considered a part of the law relating to
                                   negligent representations, rather than
                                   estoppel properly so-called. If two people
                                   with the same source of information assert the
                                   same truth or agree to assert the same
                                   falsehood at the same time, neither can be
                                   estopped as against the other from asserting
                                   differently at another time.”

                         12. Further, the reliance on the Rule 10 of the Bihar

           Panchayat Elementary Teacher (Employment and Service

           Conditions) Rules, 2006 is misplaced, as the said rule does not

           prohibit any appointment on Class III or Class IV posts. The

           rule only states that compassionate appointment can be done on

           posts of Panchayat/Prakhand Teacher. There is no express or

           implied bar on appointment on other posts. Thus, it is apparent

           that only prescription is there, and there is no prohibition. The

           relevant part of the said rules is reproduced as under:

                                               “10 & vuqdEik ds vkèkkj ij fu;kstu%&
                                               f'k{kd@f'k{kdsÙkj dfeZ;ksa ds vkfJrksa dks
                                   vuqdEik ds vkèkkj ij fuèkkZfjr ;ksX;rk ds vuq:i
                                   iapk;r f'k{kd@ç[k.M f'k{kd ds in ij miyCèk
                                   fjfä;ksa ds fo:) fu;kstu fd;k tk ldsxk ;fn os
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                                   Li"V :i ls blds fy, viuh lgefr nsrs gSaA fu;kstu
                                   ljdkj ds dkfeZd foHkkx }kjk vuqdEik ds vkèkkj ij
                                   fu;qfä lacaèkh fuèkkZfjr vU; 'krksZa ds vkyksd esa mijksä
                                   lfefr;ksa }kjk fd;k tk ldsxk] vçf'kf{kr vkfJrksa dks
                                   fu;kstu ds ckn mUgsa vfèkdre 6 o"kksZa ds vUnj çf'k{k.k
                                   çkIr dj ysuk vfuok;Z gksxk A”


                         13. The reliance placed on Rajiv Ran Vijay Kumar v.

           State of Bihar (supra) also seems to be misplaced as facts of the

           said case are clearly distinguishable from facts of the present

           case.

                         14. The appellants have further relied on a resolution

           dated 21.08.2020 and stated that since the posts of Clerk and

           Peon have been declared as a dying cadre, the appointment on

           the said posts cannot be done. However, it should be noted that

           the father of the respondent died in harness in the year 2015.

           Further, the appellant claimed compassionate appointment in the

           year 2015 itself, and the Writ Court has passed the order in the

           year 2017. The said resolution cannot have a retrospective effect

           in case of the respondent. As such, relying on a document which

           was not in existence when the cause of action arose is wholly

           misplaced.

                         15. In the present case, it is not in dispute that the

           father of the writ petitioner died in harness and the petitioner

           had applied for compassionate appointment within time. The

           object of the compassionate appointment scheme is specifically
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           to provide immediate financial assistance to the bereaved

           family. Thus, the respondent would be entitled for consideration

           for appointment on compassionate grounds. In Umesh Kumar

           Nagpal v. State of Haryana & Ors. reported in (1994) 4 SCC

           138, the Hon’ble Supreme Court has held that the object of such

           appointment is to enable the family to tide over sudden financial

           crisis. The relevant part of the said order reads as follows:

                                         “2. The question relates to the
                                   considerations which should guide while
                                   giving appointment in public services on
                                   compassionate ground. It appears that there
                                   has been a good deal of obfuscation on the
                                   issue. As a rule, appointments in the public
                                   services should be made strictly on the basis
                                   of open invitation of applications and merit.
                                   No other mode of appointment nor any other
                                   consideration is permissible. Neither the
                                   Governments nor the public authorities are at
                                   liberty to follow any other procedure or relax
                                   the qualifications laid down by the rules for
                                   the post. However, to this general rule which
                                   is to be followed strictly in every case, there
                                   are some exceptions carved out in the
                                   interests of justice and to meet certain
                                   contingencies. One such exception is in
                                   favour of the dependants of an employee
                                   dying in harness and leaving his family in
                                   penury and without any means of livelihood.
                                   In such cases, out of pure humanitarian
                                   consideration taking into consideration 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 in
                                   the rules to provide gainful employment to
                                   one of the dependants of the deceased who
                                   may be eligible for such employment. The
                                   whole object of granting compassionate
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                                   employment is thus to enable the family to
                                   tide over the sudden crisis. The object is not
                                   to give a member of such family a post much
                                   less a post for post held by the deceased.
                                   What is further, mere death of an employee in
                                   harness does not entitle his family to such
                                   source of livelihood. 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. The posts in Classes III and IV are
                                   the lowest posts in non-manual and manual
                                   categories and hence they alone can be
                                   offered on compassionate grounds, the object
                                   being to relieve the family, of the financial
                                   destitution and to help it get over the
                                   emergency. 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 dependant 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 to 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 the status and
                                   affairs, of the family engendered by the
                                   erstwhile employment which are suddenly
                                   upturned.”


                         16. In view of the discussions made hereinabove, we

           find no merit in the arguments advanced by the appellants. As
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                     such, this Court is of the view that the order passed by learned

                     Single Judge does not suffer from any infirmity or illegality so

                     as to warrant interference in intra court appellate jurisdiction.

                                   17. Accordingly, the present intra court appeal stands

                     dismissed.

                                   18. Pending application(s), if any, shall also stand

                     disposed of.




                                                                   (Sudhir Singh, J)



                                                              ( Shailendra Singh, J)
U.K./-
B.K.S./A.F.R.
U


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