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2002 DIGILAW 534 (CAL)

Dil Mroja Begum v. State of West Bengal

2002-08-12

PRATAP KUMAR RAY

body2002
JUDGMENT Pratap Kr. Ray, J. Heard the learned Advocates appearing for the parties. 2. In the instant writ application the petitioner wife has challenged the decision of the Act hoc Committee, Murshidabad District Primary School Council issued under letter No. 4107 dated 13th November, 1998 whereby and whereunder the said Ad hoc Committee without referring the petitioner's husband's case to the Medical Board in terms of Rule 14(b) of Rules regulating the Recruitment and Leave of Teachers in Primary School in West Bengal as introduced in terms of Notification No. 768-Edn.(P) dated 22nd November, 1991 (hereinafter for brevity referred to as Recruitment of Leave Rules of 1991) rejected the onward communication of the papers to the Medical Board relying upon a report of Enquiry Committee, who opined that it was not a fit case for reference to the Medical Board and thereby the Ad hoc Committee advised to undergo treatment in a Mental Hospital and/or Nursing Home by a Psychiatrist. Challenging the said order, the petitioner has prayed for the following relief: "(a) For a writ of or in the nature of Mandamus commencing the respondents, their subordinates and agents to cancel, reject, withdraw or rescind from the Memo bearing No. 4107 dated 13.11.98 issued by the Secretary, Ad hoc Committee, Murshidabad District Primary School Council, Annexure 'L' to this writ application without any delay and to direct the respondent No.4. The Chairman, Ad hoc Committee, Murshidabad District Primary School Council to allow the Medical Report of the Medical Board dated 25.1.99 Annexure 'M' to this writ application and to take immediate step to appoint the elder son of your petitioner namely Abdul Gafur to be appointed to the post of an Asst. Teacher in 30, Teghari Primary School under Raghunathgunj East Circle in place of husband of your petitioner on, compassionate ground as early as possible. (b) For a writ of or in the nature of Mandamus directing the respondent No.4, The Chairman, Ad hoc Committee, Murshidabad District Primary School Council to consider the case of your petitioner by arranging a Medical Board for examining the present condition of the husband of your petitioner within time bound period." 3. The short fact of the writ application is to this effect: The petitioner is the wife of the concerned Assistant Teacher of the Primary School, who was suffering from Psychosis. The short fact of the writ application is to this effect: The petitioner is the wife of the concerned Assistant Teacher of the Primary School, who was suffering from Psychosis. The petitioner-wife submitted an application before the Primary School annexing Medical Certificate for necessary declarations that her husband was incapacitated to work. This application was filed on 20th July, 1998 by the petitioner wife on behalf of Abdul Karim, the Head Teacher, who was a Psychiatric patient. The suffering of the petitioner husband from manic depressive Psychosis was certified by Dr. Baidyanath Biswas, Neurologist and Psychiatrist, Sadar Mental Hospital, Berhampore. The Sub-Inspector of School concerned by his note dated 21st July, 1998 recommended the matter to the Chairman, Ad hoc Committee, Murshidabad District Primary School Council (hereinafter referred to as the concerned Primary School Council) for necessary action. The last working day of the concerned teacher was noted as 10th July, 1998. The Savapati, Raghunathgunj-II Gram Panchayat Samity also opined in favour of the petitioner's husband by certifying that the concerned teacher was unable to do any work due to serious illness. The said Primary School Council had set up an Enquiry Committee, who by their report dated 9th November, 1998 did not favour the reference to the Medical Board, which was relied upon by the Primary School Council to reject the prayer for declaration of petitioner husband as incapacitated to work by the Medical Board, which is the impugned order in this writ application. The writ application has been opposed by filing affidavit by the said Primary School Council. It has been strongly relied upon by the learned Advocate for the Primary School Council, Mrs. Das by inviting the Court to enter into the facts of this case and by asserting that in terms of the Circular letter dated 22nd April, 1988 issued by the Deputy Secretary, Education Department, Primary Branch, there was a provision of Enquiry Committee to check up the cases on issue whether those were at all fit cases for recommendation to the Medical Board. The learned Advocate for the Primary School Council further had drawn the attention of the Court about the report of the Enquiry Committee by submitting that in the Enquiry Committee, a Medical Officer was included. The learned Advocate for the Primary School Council further had drawn the attention of the Court about the report of the Enquiry Committee by submitting that in the Enquiry Committee, a Medical Officer was included. On the contrary, it is submitted by the learned Advocate for the petitioner that under the Recruitment Rules, 1991 applicable to the Primary Teachers, there was no provision for scrutinizing of the applications filed by the concerned teachers praying declaration by a Medical Board by the Enquiry Committee first as would be set up by the Primary School Council. It is further contended that the Enquiry Committee had no knowledge in the Medical Science, accordingly had no power and jurisdiction to decide the matter. Having regard to the rival contentions of the parties it is only a short question as is required to be decided by this Court on the issue whether the impugned decision as passed by the Primary School Council relying upon the Enquiry Committee report refusing to recommend the case of the petitioner's husband to the Medical Board was justified. However, before adjudication of the matter on traveling through the concerned rules it is noted by this Court that the learned Advocate of the Primary School Council intended to invite the Court to travel into the facts, which the Court has rejected because of the reason that the entire matter for adjudication requires interpretation of the Recruitment and Leave Rules, 1991. It is an admitted position that the Court is not a Court of fact but a Court of law. Having regard to the contentions now the impugned decision to be tested under the provision of the rule. By Notification No. 768-Edn.(P) dated 22nd November, 1991 the Recruitment and Leave Rules of the Primary Teachers was introduced. This notification was issued in exercise of the power conferred by sub-section (1) of section 106 of the Primary Education Act, 1973 by the Hon'ble Governor of the State of West Bengal. Rule 14(b) is the relevant Rule, which reads thus: "14. This notification was issued in exercise of the power conferred by sub-section (1) of section 106 of the Primary Education Act, 1973 by the Hon'ble Governor of the State of West Bengal. Rule 14(b) is the relevant Rule, which reads thus: "14. Appointment on compassionate ground.- The Council may appoint primary teaches with the approval of the Director on compassionate ground in the following cases where in the opinion of the Council, the cases deserve compassionate consideration: (b) When a primary teacher is declared permanently incapacitated by the competent Medical Board set up according to the procedure laid down in the Government Order and he has been allowed to retire at least two years before he attains the age of superannuation and his family is in extreme economic hardship after such retirement. (1) the unemployed wife, or (2) the unemployed son, or (3) the unemployed unmarried daughter, of the incapacitated and prematurely retired primary teacher possession the required educational qualifications as laid down in sub-rules(a) and (b) of Rule 6, and found eligible to teach, may make within two years from the date of such retirement, a prayer in writing to the Council for appointment as primary teacher on compassionate ground: Provided that only one member of the family of the incapacitated and prematurely retired primary teacher possession the required educational qualifications and found eligible to teach, may be appointed on compassionate ground." 4. In the Rule, it is cleared that there is no prevision for screening or scrutinizing the application of the teacher concerned and/or their relatives before referring the same to the Medical Board. Rule only provides that, a Primary Teacher would be declared permanently incapacitated by competent Medical Board. In absence of any law whereby the subjective right of consideration of the cases of physical illness and/or mental illness by the Medical Board, the Council cannot curtail! minimize the right by setting up the so-called Enquiry Committee. The Primary School Council cannot impose any such restriction. It is a settled law that if any rule is framed in any subject matter, even by way of any procedural order, the subjective rule cannot be changed or altered. minimize the right by setting up the so-called Enquiry Committee. The Primary School Council cannot impose any such restriction. It is a settled law that if any rule is framed in any subject matter, even by way of any procedural order, the subjective rule cannot be changed or altered. Under the four corners of the Primary Education Act, 1973 read with the aforesaid Rule, the Primary School Council never was vested with any right to scrutinize the papers to adjudge whether it was a fit case for referring to the Medical Board. The Primary School Council has no expertise in the knowledge of the Medical Science and similarly the Enquiry Committee as set up by them holds the same position. It is absolutely arbitrary that a Non-Medical Board and persons not at all qualified with the Medical Science had scrutinized the papers of the petitioner and thereby rejected it holding as not a fit case for the Medical Board's scrutiny. This case reminds the Court Wednesbury's case. It is nothing but a Wednesbury's arbitrariness. Reliance may be placed to the judgment of Wednesbury's case reported in 1947(2) All E.R. 680. 5. Now the question as raised by the learned Advocate for the Primary School Council that in terms of the Circular Letter of 22nd April, 1988 a procedure was enumerated for setting up an Enquiry Committee before processing the application to the Medical Board. Such argument how far is legally sustainable now to be tested. The Circular Letter dated 22nd April, 1988 reads thus: "No. 176-Edn.(P) 4A-9/88 Dated, Calcutta the 22nd April,1988 From: Shri A.C. Chakraborty Deputy Secretary to the Govt. of West Bengal. To: The Director of School Education West Bengal, (Primary Unit), New Secretariat Building, Calcutta - 1. Sub: Employment on compassionate ground of a ward of a Primary School Teacher, who is permanently disabled or incapacitated for continuing in service procedures to be followed in disposing of such cases. In suspension of the G.O. No. 1176-Edn. of West Bengal. To: The Director of School Education West Bengal, (Primary Unit), New Secretariat Building, Calcutta - 1. Sub: Employment on compassionate ground of a ward of a Primary School Teacher, who is permanently disabled or incapacitated for continuing in service procedures to be followed in disposing of such cases. In suspension of the G.O. No. 1176-Edn. (P) dated 23.8.79 and also all other previous Government Orders on the subject mentioned above, the undersigned is directed by order of the Governor to say that the Governor is pleased to order that the benefit of employment on compassionate ground be extended to award of a primary school teacher who is permanently disabled or incapacitated for continuing in service subject to the following terms and conditions: (i) The ward shall possess the requisite qualifications for such appointment; (ii) The benefit shall be restricted to those primary school teachers who have not attained the age of sixty years; and (iii) The benefit shall not be claimed as a matter of right. 2. The term 'Ward' shall mean a son/unmarried daughter/the widow/the husband of a primary school teacher. 3. The Governor is further pleased to decide that with a view to ensuring prompt disposal of the cases of employment on compassionate ground as aforesaid and also with a view to preventing misuse of the privilege granted in para 1, the following procedure should be follows: (a) The teacher so disabled or incapacitated should apply in the enclosed proforma to the President of the District School Board concerned in the case of rural areas and to the District Inspector of Schools (PE) concerned in the case of urban areas with a certificate from a registered medical practitioner indicating there in the nature of ailment that has made the teacher permanently disabled or incapacitated for continuing in service. (b) On receipt of any such application the President of the District School Board or the District Inspector of Schools (PE), as the case may be, shall refer the case for a report to an enquiry committee comprising the members indicated below: (i) A member of the District School Board; (ii) A member of the Panchayat Samity concerned; and (iii) A representative of the District Inspector of Schools (PE). Enquiry Committee for urban areas (i) A member of the Urban Advisory Committee concerned; (ii) A commissioner/ councilor of the Municipality/ Corporation concerned; and (iii) A representative of the District Inspector of Schools (PE). (c) The Enquiry Committee will enquire into the genuineness or otherwise of the case and also the financial condition of the family of the applicant and submit a report thereon to the President of the District School Board or the District Inspector of Schools (PE), as the case may be, preferably within a period of three months. If the report of the Enquiry Committee testifies to the genuineness of the case, the President of the District School Board or the District Inspector of Schools (Primary Education), as the case may be, shall send the case to the Chief Medical Officer of Health of the concerned district for a report in terms of the Directorate of Health Services, West Bengal's Order No. HPA/G-505-79/103-P dated 27.2.80 in case of Calcutta and Howrah Corporation areas, however, the District Inspector of Schools (PE) concerned should send the case to the permanent Medical Board at the Calcutta Medical College for a report in terms of the aforesaid Memo of the Director of Health Services, W.B. (d) On receipt, of the report from the Chief Medical Officer of Health or the permanent Medical Board, as the case may be, the application along with the report will be forwarded by the President, District School Board concerned or the District Inspector of Schools, Primary Education, as the case may be, with their views to the Director of School Education, West Bengal, for according approval of the retirement of the applicant on ground of being permanently disabled or incapacitated for continuing in service. In case a decision is taken to allow the application to retire on the aforesaid ground the Director of School Education, West Bengal, on the basis of the reports referred to above, may also approve the proposal for appointment of a ward of the applicant on compassionate ground and in that case the appointment order will be issued by the appointing authority concerned on receipt of such approval from the D.S.E. 4. All cases of a ppoin tmen t on the basis of this order will be treated as of the exempted category. 5. All concerned may be informed accordingly. Sd/- A.K. Chakraborty Deputy Secretary." 6. All cases of a ppoin tmen t on the basis of this order will be treated as of the exempted category. 5. All concerned may be informed accordingly. Sd/- A.K. Chakraborty Deputy Secretary." 6. This circular letter was issued when there was no such rule controlling the service condition of the primary school teachers on voluntary retirement on ground of illness. Prior to coming into effect of the Primary Education Act, 1973, the Bengal (Rural) Primary Education Act, 1930 was in the field. Since under the said Act of 1930, there was no rule providing any voluntary retirement of a teacher on the ground of physical and/or mental incapacitation and thereby appointment of any dependent ward of the said teacher in that place, the circular letter was issued providing such benefit and as an outcome of such, circular letter dated 22nd April, 1988 came into effect. Under the said circular letter, in the Enquiry Committee, there was no provision for inclusion of any doctor but all the persons were representatives from different Board namely, the District School Board, Panchayat Samity and the District Inspector of Schools concerned. In view of the introduction of the West Bengal Primary Education Act, 1973, the Bengal (Rural) Primary Education Act, 1930 was repealed. Under section 105 of the West Bengal Primary Education Act, 1973 such repeal was effected. Under sub-section (4) of section 105 all rules and orders and/or notification as issued time to time were given life till those were repealed and/ or amended and till the time those are not inconsistent with the provision of any acts and/or rules. The section 105 being the relevant provision is set out herein below in extenso: "Section 105. Repeal and continuance.-(l) The Bengal (Rural) Primary Education Act, 1930, the West Bengal Urban Primary Education Act, 1963, and the West Bengal (Rural) Primary Education (Temporary Provision) Act, 1969, are hereby repealed. The section 105 being the relevant provision is set out herein below in extenso: "Section 105. Repeal and continuance.-(l) The Bengal (Rural) Primary Education Act, 1930, the West Bengal Urban Primary Education Act, 1963, and the West Bengal (Rural) Primary Education (Temporary Provision) Act, 1969, are hereby repealed. (2) Upon such repeal, (a) all properties and assets vested in the District School Board established for a district shall vest in, and all rights, liabilities and obligations acquired or incurred by such District School Board before such repeal shall stand transferred to, the Primary School Council established for the district: Provided that until such Primary School Council is established such properties and assets shall be deemed to be vested in, and such rights, liabilities and obligations shall be deemed to be transferred to the (ad hoc committed) appointed under section 93 in relation to the district; (b) all legal proceedings instituted or remedies enforceable by or against the District School Board established for a district before such repeal may be continued or enforced, as the case may be, by or against the Primary School Council established for the district and until such Primary School Council is established, by or against the (ad hoc committee) appointed under section 93 in relation to the district; (c) all officers and other persons employed by the District School Board established for a district and continuing in office immediately before such repeal shall be deemed to be employed by the Primary School Council established for the district on such terms and conditions as may be determined by the State Government: Provided that until such Primary School Council is established such officers and other persons shall be deemed to be employed by the (ad hoc committee) appointed under section 93 in relation to the district. . (3) All primary schools recognized under the Bengal (Rural) Primary Education Act, 1930, or the West Bengal Urban Primary Education Act, 1963 shall be deemed to have been recognized under this Act until the expiration of the period of recognition subject, however," to the power of the Primary School Council having jurisdiction to withdraw recognition in accordance with the provisions of this Act. (4) Notwithstanding the repeal of the Bengal (Rural) Primary Education Act, 1930, all rules, orders and notifications made for issue from time to time under the said Act, applicable to a District School Board and continuing in force immediately before such repeal shall continue in force in so far as they are not inconsistent with the provisions 0' this Act, until they are repealed or amended." 7. Under section 106 of the said Act the State Government was vested with the power to make rules relating to different matters as enumerated therein. In terms of section 106 read with section 60 of the said Act, Recruitment and Leave Rules, 1991 was framed and constituted. Rule 14(b) as already referred to earlier under the said Rule is a composite rule for deciding the question of declaring a teacher incapacitated to work. Under Rule 35 of the said Recruitment and Leave Rules, 1991 all the rules and orders regarding appointment of teachers and service condition contrary to the provision of the Recruitment and Leave Rules, 1991 were repealed. Rule 35 reads thus: "35. Repeal.- All rules and orders made under the Bengal(Rural) Primary Education Act, 1930 and the West Bengal Urban Primary Education Act, 1963 and the West Bengal (Rural) Primary Education (Temporary Provision) Act, 1969 regarding appointment of teachers and service conditions of primary teachers, contrary to the provisions of these rules, are here by repealed in the districts where the West Bengal Primary Education Act, 1973 (43 of 1973) has come into force: Provided that appoint of all teachers made with the approval of the Director prior to the framing of these rules, shall be deemed to have been approved under these rules." 8. Hence, as soon as the Recruitment of Leave Rules, 1991 when came into effect all circular letters and orders and notifications as were contrary to the Recruitment and Leave Rules of 1991 were repealed. In that view of the matter, the circular letter of 22nd April, 1988 also was repealed by application of Rule 35 aforesaid. Hence, as soon as the Recruitment of Leave Rules, 1991 when came into effect all circular letters and orders and notifications as were contrary to the Recruitment and Leave Rules of 1991 were repealed. In that view of the matter, the circular letter of 22nd April, 1988 also was repealed by application of Rule 35 aforesaid. Under Rule 14(b) of the Recruitment and Leave Rules, 1991 there is no provision of introducing an Enquiry Committee that too consisting of non-medical persons to check up and to scrutinize the ailment of the concerned teacher for the purpose of arriving to a conclusion that the same was whether a fit case or not to refer to the Medical Board. Under the rule there was no such 'provision and there cannot be any provision that an Enquiry Committee which is not comprising with any medical person would scrutinize the illness of the teacher Concerned and thereby would express their satisfaction and/or dis-satisfaction on the issue for reference to the Medical Board. In that view of the matter, the setting up of a Medical Committee by the Primary School Council itself was de hors of the statutory rule. Having regard to such legal position, the impugned decision refusing to refer the case of the petitioner's husband to the Medical Board being an arbitrary decision and of without jurisdiction, is not legally sustainable. As a consequence, the report of the Enquiry Committee and impugned decision of Primary School Committee both are set aside and quashed. 9. However, it appears that the petitioner's husband has already reached the age of 60 years on 2nd May, 2001 and according to service record he was absenting from the school from' 10th July, 1988 in view of suffering from the psychological problem and/or mental illness. In terms of the Rule 14(b), the case of the petitioner's husband was required to be referred to the Medical Board for necessary declaration but since that was refused by an arbitrary decision, the petitioner's husband is entitled to get that benefit for necessary declaration by a Medical Board in accordance with the medical check up as to be done by the Medical Board. In that view of the matter, it is directed that the Primary School Council will send all the papers of the petitioner's husband namely, the application and certificate of the medical officer annexed in' the application and all other documents to the Medical Board of the concerned district within four weeks from this date. The petitioner also will be at liberty to place all the documents relating to her husband's illness before the said Medical Board which also to be considered by the said Medical Board. The Chief Medical Officer of Health, District Murshidabad is directed to set up a Medical Board with personnel• of such expertise, who would be qualified the test of the mental illness of the petitioner's husband within four weeks from the date of communication of the order who within four weeks from the date of receipt of the papers from the Primary School Council as well as from the petitioner will decide the issue as to whether the petitioner's husband was incapacitated to work with effect from 10th April, 1998, which was the last working day of the petitioner's husband in the school. In the event of declaration by such Medical Board in favour of the petitioner's husband, the petitioner's husband would be entitled to get all the benefits in terms of the Rule 14(b) including the consideration of a job in favour of a dependent ward in accordance with law. Before parting with the matter, since it appears that a highly arbitrary decision was taken by the Primary School Council by setting up an Enquiry Committee which was not comprised of persons expert in the medical science, more particularly expert to deal with the patient's suffering from mental illness, the Primary School Council must bear the cost of this proceeding as a citizen has been unnecessarily dragged in the Court of law irrespective of his right as stated in Rule 14(b) aforesaid to have a decision from Medical Board. 10. Accordingly a cost of 300 Gms. is imposed upon the Primary School Council, which is to be paid within four weeks from this date. 11. However, leave is granted to the Primary School Council to realize the said cost after making necessary payment to the petitioner from the salaries and/or other benefits of the members of the Ad hoc Committee, who were holding the post at the material time. 12. 11. However, leave is granted to the Primary School Council to realize the said cost after making necessary payment to the petitioner from the salaries and/or other benefits of the members of the Ad hoc Committee, who were holding the post at the material time. 12. The writ application is thus allowed with cost. 13. Let urgent xerox certified copy of this order, if applied for, be given to the learned Advocates appearing for the parties expeditiously. Writ application allowed with cost.