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2001 DIGILAW 546 (CAL)

Motiur Rahman v. State of West Bengal

2001-08-28

Amitava Lala

body2001
JUDGMENT Amitava Lala, J.: This writ petition relates to approval of service of any one to the family members of the teacher died in harness at the age of 33 years. Such death occurred in the year 1985. The application was made by the mother in the year 1987. Again the son became major and applied in the year 1994. All the happenings were occurred prior to coming of the Memorandum No. 4-SE(Pry)/4A-17/54, dated 2nd January, 1995. 2. Under such circumstances, legal justice and equitable justice in respect of the matter require certain clarification under the order itself and pass an appropriate order. But before that the Court has to be very sure about the presence of the respondents. On last two occasions either at the time of moving the application as and by way of court application or today as and when the matter is fixed under the heading 'Motion New'; repeated directions were given to serve notice which has been done by the petitioner and appropriate affidavits of service were filed. But it appears that none appeared at any point of time on behalf of the respondents. Therefore it gives a necessary presumption in the mind of the Court that the respondents have no case in this regard. That apart, under the impugned order, I find the concerned District Inspector of Schools under Memorandum No. 90(3) CC, dated 28th March, 2001 refused the claim of the petitioner due to non production of certain documents as per the Rules in support of his claim and lastly opined that under G.O. No. 4.SE (Pry), dated 21st January, 1995 the petitioner cannot be given any relief. 3. Against this background I have gone through the earlier Memorandum being No. 457-Edn (P) /4A-50/83,dated 12th October, 1987 which has been modified under the aforesaid Memorandum being No.4-SE (Pry )/4A-17 /54, dated 2nd January, 1995. The earlier Memorandum does not prescribe modus of any application to be made by the heirs and legal representatives to give service on account of death in harness. As because the same was incorporated by the amending Memorandum in the year 1995, incorporating a scheme was provided for the purpose of making application within a period of two years from the date of death of the concerned teacher, it can not be effective prior thereto. As because the same was incorporated by the amending Memorandum in the year 1995, incorporating a scheme was provided for the purpose of making application within a period of two years from the date of death of the concerned teacher, it can not be effective prior thereto. As I find that the death occurred in 1985 and applications were made by the mother in 1987 and by the son in 1994, subsequent Memorandum of 1995 cannot be applicable in the case of the incumbent. It might have a prospective effect but cannot be given a retrospective effect when such applicants were unaware of the rules of making such application. If I allow the same to do, it will definitely hamper the equitable justice available to such incumbent or incumbents. Therefore it appears to me that the order impugned under Annexure 'K' to the writ petition is not sustainable in view of making it applicable in connection with the subsequent Memorandum being dated 2nd January, 1995. 4. So far the further equitable justice is concerned, although it has repeatedly been held that it has to be made as early as possible to meet the basic need or requirement nonetheless it has to be adjudged on the basis of the factual matrix of each and every case. This case cannot be regarded as a case where the general principle will be applicable. When a person expired at the age of 33 years leaving his family members being the wife and a minor boy, it is very difficult to sit on a arm chair of a rigid principles of law and avoid the equitable justice. Somewhere the equity always rotates around the periphery of the legal principles and when the legal principle is applicable in the case of the petitioner in getting justice, equity cannot be avoided. 5. Thus, I set aside the order impugned and direct the Authority concerned to take all necessary steps to complete all the formalities within one month from the date of communication of this order in giving a service to the incumbent under compassionate ground. Since no other point is relevant point and neither of the respondents seems to be interested, the matter is treated as on day's list as 'Motion Adjourned' and disposed of. However, no order is passed as to costs. 6. Since no other point is relevant point and neither of the respondents seems to be interested, the matter is treated as on day's list as 'Motion Adjourned' and disposed of. However, no order is passed as to costs. 6. Let xeroxed certified Copy of this judgment be supplied to the parties by the department within seven days from the date of putting in requisition for drawing up and completion of the order as well as the certified copy thereof. 7. All parties are to act on a xeroxed signed copy minutes of the operative part of this judgement upon usual undertaking and as per the satisfaction of the officer of this court in respect as above. Impugned order set aside.