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2011 DIGILAW 1320 (CAL)

Madan Mohon Mahato v. STATE OF WEST BENGAL

2011-09-22

HARISH TANDAN

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JUDGMENT HARISH TANDAN, J. 1. THE petitioner has challenged the memo no. 111-Edn(p) dated 12th February 1992 issued by the Assistant Secretary to the Director of the School Education for disapproval of the appointment of the ward of the approved teachers and non-teaching employees if they retired on medical incapacitation or dies on the day of his superannuation or thereafter. 2. ADMITTEDLY the father of the petitioner was a teacher in a primary school under the district Primary School Council, Purulia. After attaining the age of superannuation the service was extended and during such extended period the said teacher died. The mother of the petitioner made representation to the authorities concerned for giving appointment to the petitioner on compassionate ground. It is alleged by the petitioner that the said authority have not taken any decision on such representation. It is, however, sought to be contended that the authorities have communicated that in view of the memo dated 12th February 1992 the said representation cannot be considered. Impugning the said memo dated 12th February 1992 the present writ petition is filed. The learned Advocate appearing for the petitioner placed an unreported judgment of this court in case of Subrata Sekhar Samanta Vs. State of West Bengal and Ors. (CO 9628 (w) of 1993) in support of the contention that the said memo dated 12th February 1992 has been quashed. But she fairly contended that the Division Bench of this court in case of State of West Bwengal and Anr. Vs. Pintu Nandi and Ors. reported in 2005 (1) CHN 277 held that the ward is not entitled to be considered for appointment on compassionate ground if the teacher expired during the extended period of his service. In her usual fairness she submits that the authorities may be directed to consider the case of the petitioner sympathetically. 3. THE learned Advocate appearing for the respondent no. 5 submits that in view of the law laid down by the Division Bench of this court in case of Pintu Nandy and Ors. (supra) the application of the petitioner cannot be considered and prays for dismissal of the said writ petition. Having considered the respective submissions made at the bar, admittedly the father of the petitioner died during the extended period of service and application is made for considering the candidature of the petitioner for appointment on compassionate ground. 4. (supra) the application of the petitioner cannot be considered and prays for dismissal of the said writ petition. Having considered the respective submissions made at the bar, admittedly the father of the petitioner died during the extended period of service and application is made for considering the candidature of the petitioner for appointment on compassionate ground. 4. RULE 3D of the Bengal (Rural) Primary Education Rules 1940 provides that an ward of a primary teacher who dies in harness may be appointed with the approval of the Director of Public Instruction, West Bengal as an assistant teacher/school mother against regular vacancy provided he/she fulfils the minimum qualification for such appointment. RULE 4A of the said RULE provides that a teacher appointed by the board may be retained in service up to the age of 60 years, but the Board may grant an extension on year-to-year basis up to the age of 65 years provided the teacher is physically fit and mentally alert. The Explanation appended to Rule 4A postulates that the continuous period of service extended beyond the age of 60 years of the teacher will count towards increment in the scale of pay, terminal benefits and other benefits with the approval of the government. 5. THE Single Bench in case of Subrata Sekhar Samanta (supra) quashed the impugned memo dated 12th February 1992 as the petitioner therein gave an undertaking that he will refund the excess amount drawn by his father in installments. 6. IN contending that the appointment on compassionate ground cannot be given to the ward of a teacher who died during the extended period of service the Division Bench in case of Pintu Nandi (supra) observed : The Division Bench in its judgment in Md. Monirul Islam’s case (supra) also considered the contention advanced before it that the words "other benefits" in the Explanation to Rule 4A would include the benefits given to the dependent of the deceased employee in terms of Rule 3D. The said contention was rejected in the following terms: "..We are afraid we cannot agree with the said contention. Rule 3D was enacted keeping in view the provision of Article 16(2) of the Constitution of India. If such rule making authority was to grant the said benefit to the dependent of an employee an express reference ought to have been made therefor in the exception. Rule 3D was enacted keeping in view the provision of Article 16(2) of the Constitution of India. If such rule making authority was to grant the said benefit to the dependent of an employee an express reference ought to have been made therefor in the exception. The same having not been done, it is not possible for the court to read the benefits of Rule 3D as having been incorporated by reference in the Explanation appended to Rule 4A. An Explanation as is well known, has a definite function. It is not a substantive provision (See. S.Sunderna vs. V.R. Prathen Virman, reported in AIR 1985 SC 582 ). In the instant case the Explanation appended to Rule 4A clearly suggests the types of benefits to which a teacher on extended service was to derive. No benefit was given nor was contemplated in terms of Rule 3D of the 1940 Rules in favour of a dependent of an assistant teacher particularly in view of the fact that appointment on compassionate ground is not a rule but an exception. We are also of the view that such a rule has to be expressly provided for." 7. IN the case on hand the father of the writ petitioner died during the extended period of service after he was superannuated at the age of 60 years. The son that is the respondent/writ petitioner applied for appointment on facts in the present case is similar to the facts in the judgment (supra) and the ratio laid down in the said judgment (supra) is thus applicable in the instant case. Therefore, the respondent writ petitioner cannot avail himself of the benefit of Rule 3D of the 1940 Rules." IN view of the clear pronouncement of law by the Division Bench in case of Pintu Nandi (supra) the writ petition deserves dismissal which is accordingly dismissed. I must not forget to appreciate the fair submission made by the learned Advocate appearing for the petitioner. However, there shall be no order as to costs.