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2007 DIGILAW 371 (CAL)

SRIKUMAR SANTRA v. DISTRICT INSPECTOR OF SCHOOLS

2007-05-15

RUDRENDRA NATH BANERJEE

body2007
( 1 ) THIS writ application under Article 226 of the Constitution is for challenging the rejection of candidature of the petitioner for the appointment on compassionate ground on the death of his father in harness. ( 2 ) THE petitioner's father, Kumud Ranjan Santra, was the Head teacher of the Krishnabati Primary School and while in such service he died on 18. 10. 1993. After the demise of Kumud Ranjan Santra his widow smt. Nilima Rani Santra being the mother of the present petitioner, srikumar Santra, made an application before the Chairman, Primary education Ad-hoc Council, Burdwan on 10. 05. 1995 for getting an appointment of her son, the present petitioner who was then studying in class-X and scheduled to appear in the Madhyamik Examination in the year 1996. The Council received such application sent under registered post with A/d on 16. 05. 1995. In the said application it was also stated that she was a helpless widow and her son might be absorbed in employment as school teacher on compassionate ground. ( 3 ) THEREAFTER, by a letter dated 10. 02. 1997 from the petitioner's end the Mark Sheet of his Madhyamik Examination showing his success in such examination was sent. The mother of the petitioner sent another representation over the selfsame ground on 5th November, 1997, but the primary Education Council, Burdwan did not take any step over such application when the petitioner's mother was constrained to send another representation for the selfsame purpose. The petitioner's mother also sent a certificate dated 12. 03. 1997 issued by the Sabhadhipati Mangalkote panchayat Samiti showing the total monthly income of the family of the petitioner from all sources is not more than Rs. 400/- only. However, the chairman of the District Primary School. Council, Burdwan sent a letter dated 25. 06. 1998 indicating that, upon a personal hearing given to the petitioner, since the application for appointment on compassionate ground was made on 10. 02. 1997, such application cannot be entertained as a belated one. Such action taken by the Council without considering the certificate and the financial condition of the petitioner's family was illegal and hence this writ application under Article 226 challenging such rejection of the prayer for appointment of the petitioner as a teacher on compassionate ground. 02. 1997, such application cannot be entertained as a belated one. Such action taken by the Council without considering the certificate and the financial condition of the petitioner's family was illegal and hence this writ application under Article 226 challenging such rejection of the prayer for appointment of the petitioner as a teacher on compassionate ground. ( 4 ) THE respondent No. 5 that is the Chairman of the District Primary education Council, Burdwan appeared for opposing the writ application without filing any affidavit-in-opposition. The other respondents neither appeared nor did they file any affidavit-in-opposition. ( 5 ) MR. D. Mukherjee, learned Advocate for the respondent No. 5 while opposing the petition contended that the application for appointment of the petitioner on compassionate ground was time barred and there is no documentary proof of service of the application dated 10. 05. 1995 upon the Chairman of the Primary Education Council. A copy of such application found place as Annexure 'c' to the writ application. Such copy does not indicate any endorsement of service of such application upon the Primary education Council, Burdwan. However, Mr. Piush Chaturvedi, learned advocate for the petitioner has placed before the Court the two acknowledgement receipts showing service of two letters upon the sub-Inspector of Schools Mangalkote and the Chairman of the Primary education Council, Burdwan on 16. 05. 1995. The service of application dated 10. 05. 1995 by the mother of the petitioner has been referred in the writ application itself, but such A/d Cards were not made part of the affidavit. This being the position and the respondent No. 5 having not filed any affidavit-in-opposition, the story of service of representation dated 10. 05. 1995 may be relied upon. ( 6 ) WHATEVER may that case be, taking such service of application dated 10. 05. 1995, let us consider how far the petitioner can be given relief under this writ application. ( 7 ) MR. Mukherjee, learned Advocate appearing for the respondent has contended that even in the absence of any affidavit-in-opposition filed by his client respondent No. 5, the petitioner cannot be said to have fulfilled the conditions for attracting the relevant Rule 14 (a) of the Recruitment and Leave Rules of Primary Teachers in West Bengal notified on 22. 11. 1991. According to Mr. 11. 1991. According to Mr. Mukherjee, for getting an appointment on compassionate ground on the death in harness of a Primary School teacher, the petitioner on the date of application must be possessing all the eligibility criterion namely the extreme economic hardship and educational qualification and the age limit as laid down in sub-rules (a) and (b) of Rule 6. The Rule 6 sub-rule (a) (ii) requires that such person seeking appointment must not be below 18 years of age and above 40 years of age. Mr. Mukherjee has further contended that under Rule 6 sub-rule (b) (i) the educational qualification for the candidate for the post of teacher shall be School Final/ Madhyamik pass or equivalent. ( 8 ) THUS, the sum and suhstance of the contention of Mr. Mukherjee, learned Advocate for the respondent No. 5 is that even if the alleged application dated 10. 05. 1995 for appointment of the petitioner on compassionate ground is accepted, the petitioner had no requisite qualification for such appointment even on such date and accordingly neither there was nor is there any scope for grant of appointment upon such application. ( 9 ) MR. Chaturvedi, learned Advocate appearing for the petitioner has urged that the plea of the Primary Education Council that the petition was a belated one being filed after expiry of two years as prescribed in Rule 14 (a) of the Recruitment and Leave Rules of Primary Teachers, in West bengal does not stand as such time prescribed is not a mandatory, but a directory one. In support of such view he has cited the decision of the single Bench of this Court reported in 2000 (2) CLJ 108 (Khadeja Bibi and ors. v. State of West Bengal and Ors. ). ( 10 ) ON perusal of such decision it appears that in that case the person concerned died in harness while acting as assistant teacher of a primary School on 08. 11. 1994. The mother of the petitioner No. 2, that is, the widowed lady filed an application within the prescribed period representing that the petitioner No. 2, that is, the son would appear in the madhyamik Examination in 1996. Such prayerwas renewed on 07. 07. 1997 and the proposed candidate again, on 17. 07. 1997 filed a similar application for his appointment as he had completed the course in 1997. Such prayerwas renewed on 07. 07. 1997 and the proposed candidate again, on 17. 07. 1997 filed a similar application for his appointment as he had completed the course in 1997. Learned Single Judge in that case held that the minor had to be represented by the natural guardian everywhere and the prescribed period of two years is directory and not mandatory and as such there should be a distinction of the cases where a person is not conning with clean hands and where the person's grievance is genuine. It has further been held that the time period as framed is not to prevent the genuine candidate but to prevent who are not genuine. ( 11 ) I have gone through the decision of the learned Single Judge of our Court referred above. In such decision no specific test has been formulated to find out whether a case is genuine or false and whether the compassionate ground will be applicable in such case. The relevant Rule no. 14 (a) of the Recruitment and Leave Rules of Primary Teachers, in west Bengal which prescribes the time limit of two years has not been considered at all. Nor such Rule has been declared invalid or ultra vires in the said judgment. In my view, on the strength of such judgment, the purport of the Rule prescribing a period of limitation for filing an application for appointment is practically made nugatory. It may be pointed out in this context that the Rule 14 (a) of the said Rules speaks of an exceptional circumstances of appointment on compassionate ground other than the general rules of procedure for appointment. The time limit prescribed for such exceptional cases is to be followed strictly according to the provisions. ( 12 ) IN support of my view, the decision reported in 1994 (4) Supreme court Cases 138 (Umesh Kumar Nagpal v. State of Haryana and Others) may be cited. In view of such ratio 'the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which could be exercised at any time in future. In view of such ratio 'the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which could be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole bread winner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over'. ( 13 ) IN this context the decision reported in 1996 (1) Supreme Court cases 301 (Jagdish Prasad v. State of Bihar and Another) may also be referred. In view of such ratio the Supreme Court has not encouraged the unreasonable extension of time prescribed by the Rules. ( 14 ) ANOTHER decision may be cited in this regard that is 1996 (8) supreme Court Cases 23 (Haryana State Electricity Board v. Naresh tanwar and Another ). In view of such decision of the Hon'ble Supreme court the very object of appointment of dependent of deceased employee who died in harness is to relieve immediate hardship and distress caused to the family on sudden demise of the earning member of the family and such consideration cannot be kept binding for years. ( 15 ) IN the case in hand the son of the employee dying in harness was minor at the time of death of his father and at the time of first application made by his mother on 10. 05. 1995 and also at the time of last application made in that regard in 1997. According to the Admit Card for his Madhyamik Examination his date of birth was the 4th February, 1980. ( 16 ) LT may further be noted that unlike the fact in the reported decision referred by learned Advocate for the petitioner, the mother of the petitioner even in the month of March 1997 is making an application for such compassionate appointment of his son indicating his minority at the relevant period. ( 17 ) CONSIDERING all these aspects, with great respect, I could not agree with the view of the Hon'ble Single Bench expressed in the decision reported in 2000 (2) CLJ 108 (Khadeja Bibi and Ors. v. State of West Bengal and Ors.) so far it speaks of extension of prescribed time limit. ( 17 ) CONSIDERING all these aspects, with great respect, I could not agree with the view of the Hon'ble Single Bench expressed in the decision reported in 2000 (2) CLJ 108 (Khadeja Bibi and Ors. v. State of West Bengal and Ors.) so far it speaks of extension of prescribed time limit. ( 18 ) EVEN if, we accept the petitioner's argument that it was a genuine case of appointment on compassionate ground and that such an application was filed within the prescribed period of limitation we cannot ignore the essential criterion for appointment of the petitioner regarding his educational qualification and regarding his age. The relevant rule runs as follows : - "14. Appointment on compassionate ground.- The Council may appoint primary teachers 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: (a) when a teacher dies in harness before the date of his superannuation leaving a family which, in the opinion of the Council, shall be in extreme economic hardship, (1) the unemployed widowed wife, or (2) the unemployed son, or (3) the unemployed unmarried daughter, of the deceased primary teacher possessing 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 death a prayer in writing to the Council for appointment as primary teacher on compassionate ground, provided that only one member of a deceased primary teacher's family may be appointed on compassionate consideration. ( 19 ) THE relevant portion that such person seeking for appointment on compassionate ground must be "possessing required educational qualification as laid down in sub-rules (a) and (b) of Rule 6. . . . . . . . . . . . . . . . " goes to indicate that while filing an application for such appointment the person must possess such qualifications. In my view, there cannot be any scope of deviation from such Rule. The essential qualification regarding age or educational qualification to be attained in future cannot be considered to be a favorable condition of the person seeking for appointment on compassionate ground. In my view, there cannot be any scope of deviation from such Rule. The essential qualification regarding age or educational qualification to be attained in future cannot be considered to be a favorable condition of the person seeking for appointment on compassionate ground. ( 20 ) THUS, considering all such facts and circumstances, I find no infirmity or illegality on the part of the Primary Education Council, Burdwan in refusing the prayer for compassionate appointment in favour of the petitioner. Accordingly, I find no necessity to interfere with such decision of the said Council. ( 21 ) HENCE the writ application is dismissed. I make no order as to costs.