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)
Patna High Court L.P.A No.912 of 2023(4) dt.23-04-2026
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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
Patna High Court L.P.A No.912 of 2023(4) dt.23-04-2026
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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.
Patna High Court L.P.A No.912 of 2023(4) dt.23-04-2026
6/11
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.
Patna High Court L.P.A No.912 of 2023(4) dt.23-04-2026
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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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