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2000 DIGILAW 69 (CAL)

DEBJANI BOSE v. STATE OF WEST BENGAL

2000-02-14

MAHEMMAD HABEEB SHAMS ANSARI

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M. H. S. ANSARI, J. ( 1 ) IN the instant writ application, the petitioner has questioned the order dated 3. 4. 1998 passed by the Chairman, Calcutta District Primary School Council, whereby the claim of the petitioner for appointment on compassionate grounds under the died-in-harness category was rejected. ( 2 ) THE case of the petitioner is that his mother was an Assistant Teacher and died-in-harness on 12. 10. 1990. The petitioner was then a minor (14 years of age ). An application was made on 29th April, 1992 on behalf of the petitioner by his father for granting employment to the petitioner who was then aged 16 years. The said application was made to the District Inspector of Schools (SE), Calcutta and by another application dated 28. 9. 1992 the father of the petitioner made a similar prayer to the Chairman, District Primary School Council. It is also stated that by a memo No. 1014/pc dated 28. 9. 92 permission was granted to the school in question i. e. the St. Paul's School (Primary Section) to fill up normal vacancies, one of which was on account of the death of the said teacher. ( 3 ) THE Secretary, Calcutta District Primary School Council by his order dated 16. 9. 94 considered the representation of the petitioner and requested the Director of School Education vide his Memo. No. 898 dated 16. 9. 94 whether the registration of the petitioner for appointment against died-in- harness case may be condoned as the name of the petitioner was not registered in the roster maintained for the said purpose, as the petitioner had not attained the age of 18 years at that time. The petitioner attained the age of 18 years on 2. 2. 1994. The petitioner vide a memo dated 12. 1. 1995 was informed that his case has not been considered by the Director of School Education on the ground of submission of the prayer after a lapse of more than three years from the date of death of his mother. The petitioner made representations against the said order and thereafter filed a writ application being W. P. No. 26863 (W) of 1997 which was disposed of by an order dated 30. 9. The petitioner made representations against the said order and thereafter filed a writ application being W. P. No. 26863 (W) of 1997 which was disposed of by an order dated 30. 9. 97 directing for consideration of the petitioner's case by the authority concerned in accordance with the law after affording a hearing to the petitioner within the time framed therein. ( 4 ) IN pursuance to or in compliance therewith, the impugned order dated 3. 4. 98 was passed by the Chairman, Calcutta District Primary School Council vide a Memo. No. 304 (5)/c once again rejecting the claim of the petitioner. ( 5 ) IN the impugned order, it has been observed that the application for employment by ward of a teacher who died in harness should be submitted within two years from the date of death of the concerned teacher and the ward of the deceased teacher must possess the requisite qualifications on the date on which the application has been submitted. Thus, it is submitted, are the conditions prescribed in the Government Order No. 4 (SE) dated 2. 1. 1995. The petitioner not having fulfilled the said conditions, it was observed, was not entitled to the grant of the relief as prayed for. ( 6 ) LEARNED counsel for the petitioner raised several contentions assailing the impugned order inter alia, submitting that the application have been made in time and was required to be considered when the petitioner had attained majority and obtained requisite educational qualifications for the post in question. ( 7 ) I had occasion to consider similar contentions and dealt with the same elaborately in the case of Rafiqual Islam v. State of West Bengal and Ors. , reported in 1999 (1) CLT 166 wherein, the petitioner in that case was minor and had applied for grant of appointment on compassionate grounds after attaining the age of majority and after having passed the requisite examinations. Reference has been made in that case to the various judgments of the Supreme Court and in particular to Haryana State Electricity Board v. Naresh Tanwar and Anr. Reference has been made in that case to the various judgments of the Supreme Court and in particular to Haryana State Electricity Board v. Naresh Tanwar and Anr. , reported in 1996 (8) SCC 23 wherein the Supreme Court rejected the similar contentions and set aside the judgments of the High Court which proceeded on the footing that the compassionate appointment to achieve its purpose cannot be restricted within the time framed of three (3) years and if assistance to the members of the deceased employee is required to be given, the family member must necessarily attained majority and then become eligible to apply for getting appointment. ( 8 ) IN the light of the said judgment, cited (supra), it must be held that the impugned order does not suffer from any infirmity as the petitioner was not eligible for appointment at the time of the death of his mother nor fulfilled the eligibility criteria within the period of two years prescribed therefore under the relevant rules governing the grant of appointment on compassionate basis under the died-in-harness category. ( 9 ) FACED with the aforesaid situation, Mr. R. K. Basu, the learned counsel for the petitioner sought to contend that as the institution in question is a minority institution, the Rules of Recruitment of teachers in the said school are not governed by any statutory rules and the institutions such as Christian Missionary Schools are permitted to appoint teachers being managed by them from outside approved panel subject only to the conditions that all teachers so appointed must have qualifications and experience as may be prescribed by the Government from time to time. It was further submitted that the petitioner having been appointed by the St. Paul's School, a Christian Missionary School, his appointment is required to be approved by the Director of School Education. Reliance in that behalf has been placed upon the circular letter dated 6th September, 1976. ( 10 ) IT must be noticed that the specific claim of the petitioner was for grant of appointment under the died-in-harness category in the earlier writ petition being C. O. No. 26863 (W) of 1997 as also in the instant writ application was based on compassionate grounds under died-in-harness category. ( 10 ) IT must be noticed that the specific claim of the petitioner was for grant of appointment under the died-in-harness category in the earlier writ petition being C. O. No. 26863 (W) of 1997 as also in the instant writ application was based on compassionate grounds under died-in-harness category. The case of the petitioner was directed to be considered by this Court under the said category and the same was considered by the impugned order and rejected for the reasons cited (supra ). The question whether the petitioner has been duly appointed by the school in question and whether his appointment under any other category is required to be approved are matters which cannot be gone into in this writ petition for the reason that the same was neither raised before nor considered by the statutory authority and cannot, therefore, be allowed to be raised for the first time in the instant writ petition. Also, if as contended on behalf of the petitioner that there are no statutory rules governing the service of teachers in the missionary schools, then such an employment would be private employment and no writ is maintainable in relation thereto. A writ application is maintainable in respect of service governed by statutory rules or those having the force of law. Such appointment may constitute a contract between the school and teacher and is governed under Common Law of Master and Servant. Such contract of service not being protected by statute. ( 11 ) IT is the contention of the petitioner that there are no statutory rules governing the recruitment or appointment of such teachers by Missionary Schools, nor have any such Rules been placed before Court, then in my view, the instant writ application for the relief as prayed for is not maintainable. It is well settled that a writ of mandamus would be issued compelling the statutory authorities to act in conformity with law. If there is no law governing such appointments, the petitioner is not entitled to maintain a writ application. For the reasons aforestated, the writ application is liable to be dismissed and is accordingly dismissed, however, without any order as to costs. Urgent xerox certified copy of this order be supplied to the learned counsel appearing for the parties within 7 days, if the same is applied for. Application dismissed.