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2010 DIGILAW 1413 (CAL)

BITHIN SAMANTA v. STATE OF WEST BENGAL

2010-12-07

BISWANATH SOMADDER

body2010
Judgment 1. This writ petition has been filed by the writ petitioner on 31st March, 2009, essentially seeking employment on compassionate ground. He claims to be the son of a deceased primary school teacher who died-in-harness on 9th November, 1994. It has been stated in the writ petition that when the writ petitioner's mother (who happened to be a primary school teacher) died in the year 1994, he was not in a position to make any application for appointment on compassionate ground, since at that point of time he was a minor and attained majority only in the year 2005. It has also been stated that he had earlier filed a writ petition before this Court in the year 2008, which was disposed of by another learned Single Bench of this Court with a direction upon the Chairman of the District Primary School Council, Purba Medinipur (hereinafter referred to as the 'Council'), to take a decision in respect of the writ petitioner's application for appointment on compassionate ground. 2. Pursuant thereto, by a memo dated 18th November, 2008, the Chairman of the concerned Council passed a reasoned order and held, inter alia, that the writ petitioner was not entitled to get benefit of appointment on compassionate ground and, as such, rejected the claim of the petitioner to that effect. 3. It is this order of the Chairman of the Council dated 18th November, 2008, which is now sought to be challenged before this Court in the present writ proceedings. 4. It has been contended by the learned advocate for the petitioner relying on two judgments, one by the Hon'ble Supreme Court and another by our High Court, that in the facts and circumstances of the case, the writ petitioner has a right under law to get compassionate appointment. 5. On the other hand, learned advocate representing the Council refers to the applicable Rules and submits that under provisions of the relevant Rule governing appointment on compassionate ground, no appointment can be given to the writ petitioner. He submits that in order to invoke the provisions of the relevant Rule, an application has to be made within two years from the date of death of the primary teacher. He submits that in order to invoke the provisions of the relevant Rule, an application has to be made within two years from the date of death of the primary teacher. In the instant case, such application was made by the petitioner on 26th August, 2005, i.e. after almost eleven years from the date of death of his mother who was the deceased primary school teacher. He further submits that it would also appear that the father of the writ petitioner was employed at the time of death of the teacher and the father retired from service 12/13 years after the death of the petitioner's mother. The family was therefore, not in any financial distress. He further submits that the order of the Chairman of the Council is supported with cogent reasons and ought to be interfered by this Court. 6. Upon perusing the impugned order dated 18th November, 2008, it appears that the Chairman of the Council considered each and every aspect of the matter, since the High Court had, by its earlier order dated 16th June, 2008, passed in W.P. No. 10602(W) of 2008, inter alia, directed the Chairman to take a decision in respect of the application which had been submitted by the writ petitioner praying for appointment on compassionate ground, by passing in a reasoned order. 7. Upon considering all aspects of the case, the Chairman of the Council observed as follows: "I hold that the judgment submitted by the petitioner is not applicable in the present case as the father of the petitioner was employed during the death of the mother of the petitioner & the father of the petitioner retired from service 12/13 years after death of the mother of the petitioner. Therefore, the family of the petitioner is not facing the financial hardship for necessary to consider for appointment on compassionate ground. On the other hand the Hon'ble Supreme Court held that appointment compassionate ground is not the matter of fundamental right and can not be considered on the ground of delay and latches. So, the petitioner is not entitled to get the benefit of appointment on compassionate ground due in view of the judgment cited by the petitioner. Hence the claim of the petitioner is rejected for aforesaid reason." 8. So, the petitioner is not entitled to get the benefit of appointment on compassionate ground due in view of the judgment cited by the petitioner. Hence the claim of the petitioner is rejected for aforesaid reason." 8. The relevant provision of law governing appointment on compassionate ground, as applicable in the instant case, is Rule 14 of the West Bengal Primary School Teachers Recruitment Rules, 2001. A bare perusal of the said Rule reveals clearly that when a teacher dies-in-harness before the date of his/her superannuation, leaving a family which, in the opinion of the Council, is in extreme economic hardship, such members of the family, as described under the Rule, possessing required educational qualifications and found eligible to teach are entitled to make a prayer in writing within two years from the date of such death to the Council for appointment as primary teacher on compassionate ground, provided, only one member of the family of the deceased primary teacher may be so appointed on compassionate ground. 9. In the instant case, it is the admitted position that the deceased primary school teacher, at the time of her death, was survived by her husband who was in employment and the writ petitioner who was a minor. In the facts of the case, by no stretch of imagination it can be held that the family of the deceased primary school teacher was in a financial distress of such an extreme nature so as to come within the compass of the expression, "financial distress", as provided under Rule 14. Moreover, the writ petitioner made the application upon attaining the age of majority, seeking appointment on compassionate ground on 26th August, 2005, i.e., almost eleven years after the death of his mother. It is impermissible under the relevant Rule to make an application for appointment under compassionate ground after two years of the date of death of a primary teacher. 10. The judgment of the Hon'ble Supreme Court relied on by the learned advocate for the petitioner in the case of Syed Khadim Hussain vs. State of Bihar & Others reported in 2006 (9) SCC 195 , is wholly inapplicable in the facts and circumstances of the instant case. 10. The judgment of the Hon'ble Supreme Court relied on by the learned advocate for the petitioner in the case of Syed Khadim Hussain vs. State of Bihar & Others reported in 2006 (9) SCC 195 , is wholly inapplicable in the facts and circumstances of the instant case. In that case, the Supreme Court was considering a matter where a widow of a peon working in the Public Works Department of the Government of Bihar who died-in-harness in the year 1991 had applied for appointment on compassionate ground within the prescribed period of time under the relevant rules, as applicable in that case. It was in that factual backdrop the Supreme Court observed that the subsequent application submitted by the son of the deceased employee, who was a minor at the relevant point of time of making such application, ought not to have been rejected. 11. In the established facts of the instant case, no application could have been made by the widower, who was already employed at the time of death of his wife, for the purpose of seeking appointment under compassionate ground, even if the same was made within the time-frame prescribed under the relevant rule. The mandatory time-frame as provided under Rule 14 governing the instant case came to an end in the year 1996. No valid application was on record in the office of the concerned Council within that time-frame. 12. The judgment of this Court in the case of Motiur Rahaman vs. State of West Bengal & Ors., reported in 2001 (3) CHN 662 , was rendered in a completely different fact situation by invoking the principles of equitable justice. In the facts of the present case, there is no question of invoking such principles of equitable justice in view of the clear provision of law as contained in the relevant Rule governing appointment under compassionate ground. 13. For reasons stated above, the order of the Chairman, District Primary School Council, Purba Medinipur, dated 18th November, 2008, which was passed pursuant to the earlier order of this Court dated 16th June, 2008, in W.P. 10602(W) of 2008, does not warrant any interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. The writ petition is, thus, liable to be dismissed and is hereby dismissed with costs assessed at 200 Gms. 14. The writ petition is, thus, liable to be dismissed and is hereby dismissed with costs assessed at 200 Gms. 14. Urgent Photostat certified copy of this order, if applied for be given to the learned advocates for the parties.