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2011 DIGILAW 419 (CAL)

Arpita Sen v. The State of West Bengal

2011-03-23

HARISH TANDAN

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JUDGMENT : HARISH TANDON, J. A question has cropped up in the instant writ application as to whether the time limit prescribed in Rule 14 of the West Bengal Primary Teachers Recruitment Rules, 2001 can be relaxed in genuine and exceptional cases. In other words the time limit prescribed in the said Rule is directory or mandatory in nature. Before dealing with the aforesaid questions, brief facts are narrated as follows : (i) The father of the writ petitioner, Anukul Sen, since deceased, was appointed as an assistant teacher in Tarachi Primary School on 25.3.1983 (ii) the said Anukul Sen died on 21.8.2004, while in service, leaving spouse and two minor daughters including the writ petitioner (iii) the mother of the writ petitioner applied within the said period of two years as enshrined under Rule 14 of the West Bengal Primary Teachers Recruitment Rules 2001 seeking appointment of the writ petitioner on compassionate ground. (iv) the Chairman, District Primary School Council, Birbhum, vide memo No. 1086 dated 3.7.2006, directed that the application having filed by the mother seeking an appointment of a daughter, it would be proper if the daughter of the writ petitioner herein should make an application for her appointment. (v) In terms of the said direction, the writ petitioner as well as her mother applied on 11.7.2006 by two separate applications seeking the appointment of the writ petitioner on compassionate ground. (vi) The second application was rejected by the Chairman, District Primary School Council, Birbhum, vide memo No. 1267 dated 8.8.2006, on the ground that the writ petitioner did not attain the age of 18 years within two years from the date of death of the said teacher. (vii) After attaining the age of 18 years, the writ petitioner as well as her mother again applied on 24.12.2007 for appointment on compassionate ground. (viii) The fate of the third application was the same as of the second one with an additional ground that the third application is filed beyond the prescribed period of two years. (ix) The writ petitioner has challenged the memo NO. 1114 dated 11.11.2008 by which the said third application was dismissed by the concerned authority. Mr. Amitava Mukherjee, learned Advocate appearing for the petitioner submits that the period of two years as envisaged under Rule 14 of the West Bengal Primary Teachers Recruitment Rules 2001 is directory and not mandatory. (ix) The writ petitioner has challenged the memo NO. 1114 dated 11.11.2008 by which the said third application was dismissed by the concerned authority. Mr. Amitava Mukherjee, learned Advocate appearing for the petitioner submits that the period of two years as envisaged under Rule 14 of the West Bengal Primary Teachers Recruitment Rules 2001 is directory and not mandatory. To substantiate his submission as above, he relies upon a judgment of this court in case of Khadeja Bibi & Ors. Vs. State of West Bengal & Ors. reported in 2000 (2) CLJ 108. He further argues that the first and second application were taken out within the said prescribed period of two years and those applications have not been disposed of on merit but were not entertained on technical grounds. Even if the third application in technical sense, was made beyond the said period of two years, the authority ought to have considered that the initiation was made within the said prescribed period and the application should not have been thrown on the touch-stone of limitation. To buttress such submission Mr. Mukherjee cited a decision of the Supreme Court in case of Syed Khadim Hussian Vs. State of Bihar & Ors. reported in (2006) 9 SCC 195 . Mr. Mukherjee relies upon a judgment of this court in case of Namita Pramanick Vs. State of West Bengal & Ors. reported in (2008) 1 CLT 217 (HC) to contend that the word ‘family’ incorporated in Rule 14 of the West Bengal Primary Teachers Recruitment Rules 2001 postulates the member as engrafted therein, if the process at the instance of any of the member commences within two years from the date of the death of the deceased employee, same shall be deemed to have been initiated within the prescribed limit. By deriving the inspiration from a judgment of this court in case of Usha Das Vs. State & Ors. reported in 1998 (11) CHN 375 Mr. Mukherjee submits that in almost all the cases the concerned respondent authorities have not dealt any application for appointment on compassionate ground independently without being directed by the writ court. Thus he submits that the respondent authorities should not be too hyper technical in considering the applications of the writ petitioner for appointment on compassionate ground. Mr. Subir Sanyal, learned Advocate appearing for the District Primary School Council, Birbhum, respondent no. Thus he submits that the respondent authorities should not be too hyper technical in considering the applications of the writ petitioner for appointment on compassionate ground. Mr. Subir Sanyal, learned Advocate appearing for the District Primary School Council, Birbhum, respondent no. 2 submits that there is a prescribed period within which the application should be made for consideration for appointment of compassionate ground. Such prescribed period being mandatory in nature, there cannot be any relaxation of the period enumerated in the Rule governing the appointment on compassionate ground. He further argues that the Rule by which a provision is made for an appointment on compassionate ground is not a Rule for another mode of appointment but is an exception to the normal Rule of appointment and as such the Rule by which such appointment is made should be followed strictly and there cannot be any departure therefrom. He argues that the application filed by the writ petitioner was beyond the prescribed period of 2 years as enshrined in Rule 14 of the West Bengal Primary Teachers Recruitment Rules 2001 the same has been rejected by an authority. By contending that the delayed application cannot be considered, he relies upon the following judgments : Union of India & Ors. Vs. Bhagwan Singh reported in (1995) 6 SCC 476 , Director of Education (Secondary) & Anr. Vs. Pushpendra Kumar & Ors. reported in (1998) 5 SCC 192 , Life Insurance Corporation of India Vs. Asha Ramchhandra Ambekar reported in (1994) 2 SCC 718 , Umesh Kumar Nagpal Vs. State of Haryana & Ors. reported in (1994) 4 SCC 138 and an unreported judgment of this court in WP No. 2027(w) of 2008. He further argues that the little difference in fact may change the complexion of the judgment and before applying the judgement the court must state the fact situation and its parity with the decision sought to be relied upon. To substantiate such argument he relies upon the judgment of the apex court in case of Bharat Petroleum Corporation Ltd. Vs. N. R. Vairamani reported in (2004) 8 SCC 579 . Having considered the submission, there is no dispute that the father of the writ petitioner died on 21.8.2004. The first application was taken out by the mother of the writ petitioner within the prescribed period for the appointment of the writ petitioner on compassionate ground. N. R. Vairamani reported in (2004) 8 SCC 579 . Having considered the submission, there is no dispute that the father of the writ petitioner died on 21.8.2004. The first application was taken out by the mother of the writ petitioner within the prescribed period for the appointment of the writ petitioner on compassionate ground. It was specifically stated that the petitioner passed in Madhyamik Examination in first division in the year 2005. The authority concerned passed an order on 3.7.2006 intimating that since the appointment is sought for the writ petitioner, so it would be proper that the writ petitioner herself should make an application. In compliance thereof, the writ petitioner filed an application which was again turned down by an authority on 8.8.2006 on the ground that the writ petitioner could not attain the age of 18 years within 2 years of the death of the father. However, the third application was made by the writ petitioner immediately on attaining the age of 18 years but the said application also suffered dismissal in this time on the ground that the third application is made beyond the prescribed period of 2 years. Before dealing with the point as emerges, it is profitable to quote Rule 14 of the West Bengal Primary Teachers Recruitment Rules 2001: R. 14. Before dealing with the point as emerges, it is profitable to quote Rule 14 of the West Bengal Primary Teachers Recruitment Rules 2001: R. 14. Appointment on compassionate ground, The Council may appoint primary teachers, with the approval of the Director of School Education, West Bengal or his authorized officer, on compassionate ground in the following cases where, in the opinion of the Council, the cases deserve compassionate consideration:-(1) when a teacher dies in harness before the date of his superannuation i.e. at the age of 60 years, leaving a family which, in the opinion of the Council, is in extreme financial hardship that is it fails to provide two square meals and other essentials to the surviving members of the deceased teacher’s family, the following members of the deceased teacher’s family, viz, the (a) widowed wife, or (b) widower, or (c) son, or (d) unmarried daughter, or (e) divorce dependent daughter – divorced before the date of death of the teacher, possessing required educational qualifications as laid down in clause (a) and (c) of sub-rule (1) of rule 6 and unemployed, and not below 18 years of age and not above 45 years of age and fund eligible to teach, may make within two years from the date of such death, a prayer in wiring to the Council for appointment as primary teacher on compassionate ground, provided that only one member of a deceased primary teacher’ family may be appointed on compassionate ground. (2) when a primary teacher applies for being declared permanently incapacitated on medical ground, to the council for appearing before the Medical Board set up according to the procedure laid down in the Government Board, before attaining 58 years of age and discontinues to attend the school for such incapacitation, he may be allowed by the Council to retire on and from the date of submission of such application, provided that the Council is satisfied with such incapacitation and other conditions through Enquiry Committee, and provided further that, after receiving the report from the Council, the Medical Board set-up for this purpose declares him permanently incapacitated to continue in further service for a reasonable time and if his family is in extreme financial hardship after such retirement, the (a) wife, or (b) husband, or (c) son, or (d) unmarried daughter, or (e) the divorce dependent daughter – divorced at least one year before submission of application for declaration of permanent incapacitation, of the incapacitated prematurely retired primary teacher, possessing requisite qualifications as laid down in clause (a) and (c) of sub-rule (1) of rule 6 and unemployed, and not below 18 years of age and not above 45 years of age and found eligible to teach may be appointed as primary teacher on compassionate ground on submission of prayer in writing within three months from the date of issue of certificate by the competent Medical Board. Only one member of the family of the declared permanently capacitated teacher may be appointed. Government orders issued from time to time for appointment on compassionate ground shall also duly be considered in making such appointment. But if the Medical Board does not declare the teacher to be permanently incapacitated to continue in further service the Council will allow him to rejoin duty provided he does not attain superannuation. In such a case the period of absence will be regularized as per existing leave rules.” On the reading of the said provision it appears that in two contingencies one of the family member can be appointed on compassionate ground, firstly, if an employee who died while in service and secondly, if an employee who became permanently disabled and incapacitated in continuing in service. It is further provided that the ward should be between the age of 18 years –40 years and must have a requisite qualification as postulated in Rule 6(a) and (b) of the said Recruitment Rules of 2001. The object for incorporating the Rules for appointment of one of the member of the family on compassionate ground is to tide over the family from sudden financial crisis. The appointment on the compassionate ground is not an another Rule of appointment but is an exception to the normal Rule. In the case in hand the mother applied within the prescribed period for appointment of a daughter the said application, as it appears from an order dated 3.7.2006 is not finally disposed of inasmuch as the authority concerned directed the mother to advise the writ petitioner to make an application since the appointment is sought for her. In terms of the said direction the writ petitioner applied for her appointment but the said application was rejected not on merit but on technicalities as the writ petitioner did not attain the age of 18 years. Immediately on attaining the age, the third application was filed which was also rejected not on merit but having been filed beyond the prescribed period of 2 years as enshrined under Rule 14 of the West Bengal Primary Teachers Recruitment Rules, 2001. If the series of events are taken together, I do not find that the first application has ever been disposed of as yet. The authorities have not passed a single order by which the case of the writ petitioner is thrown out on merit but a shelter is taken under technicalities while refusing to consider the application of the writ petitioner. One would not find that there is any stipulation made in Rule 14 of the said Recruitment Rules of 2001 to make an application by the applicant himself/herself for appointment on compassionate ground it may be that one of the member of the family may seek an appointment of the another member. Let me deal with the judgment cited by Mr. Sanyal. In case of Union of India & Ors.Vs. Bhagwan Singh (supra) the apex court was considering an application for appointment on compassionate ground which was filed merely 20 years after the death of the employee. Let me deal with the judgment cited by Mr. Sanyal. In case of Union of India & Ors.Vs. Bhagwan Singh (supra) the apex court was considering an application for appointment on compassionate ground which was filed merely 20 years after the death of the employee. In the backdrop of such case it was held that the purpose for providing appointment on compassionate ground is to mitigate the hardship due to the death of a bread earner of a family and such an application which sees the light of the day 20 years after the death of the employee is not entertainable. In case of Director of Education (Secondary) & Anr. Vs. Pushpendra Kumar & Ors. (supra) relied upon by Mr. Sanyal the apex court was considering the legality and the propriety of an order by which the applicant therein was directed to be appointed on class-III post upon creation of a supernumerary post which was found by the apex court to be contrary to the regulations governing the field which postulates the appointment in class-IV post. The apex court in case of Life Insurance Corporation of India (supra) held that the court cannot pass an order which amounts to doing something which is per se illegal. In the said report there was a clear stipulation in the statutory circular that no appointment shall be made on compassionate ground where any member of the family is employed. It was found in the said case that one of the family member was employed. Thus there was an express fetter put in the statutory circular which forbids of doing something. In case of Umesh Kumar Nagpal (supra) the point in issue before the Supreme Court was whether the appointment on compassionate ground is a matter of course or the creation of right in a particular post. While deciding it was held : “It is obvious from the above observations that the High Court endorses the policy of the State Government to make compassionate appointment in posts equivalent to the posts held by the deceased employees and above Classes III and IV is unnecessary to reiterate that these observations are contrary to law. If the dependant of the deceased employee finds it below his dignity to accept the post offered, he is free not to do so. If the dependant of the deceased employee finds it below his dignity to accept the post offered, he is free not to do so. The post is not offered to cater to his status but to see the family through the economic calamity.” As stated above, the first application filed by the mother of the writ petitioner seeking an appointment of the writ petitioner was within the stipulated period. The second application filed by the writ petitioner for the appointment was also within the time limit so prescribed but the third application which was filed after attaining majority was beyond the period fixed in the Recruitment Rules of 2001. Similar point cropped up in case of Syed Khadim Hussain (supra) where the widow applied for appointment within the prescribed period but such application was rejected without assigning any reason. The second application was taken out by the son who was 13 years old. The said application was also rejected. The third application was made by the son after attaining majority which was also rejected as the same is filed beyond the statutory period. It was held that since the first application was made within the time and had been rejected without assigning any reason it would be deemed that the applications are initiated within the time so prescribed. In case of Khadeja Bibi (supra) this court has an occasion to deal whether the Rule framed for appointment on compassionate ground is mandatory or directory. It has been specifically held in the said case that the rules are directory. There cannot be strait jacket formula to be framed that every application made beyond the prescribed period, the same should be considered as the provision is directory but it depends upon the facts of the each case and in appropriate cases the authorities are empowered to turn down the application. In the instant case the initiation was done within the time-frame. There is another aspect which this court should not lose sight of. The writ petitioner has passed Madhyamik Examination in first division thereby securing 629 marks out 800 marks. Such meritorious candidate should be welcomed by the authority to impart education to the students who shall be benefited by her excellence. There is another aspect which this court should not lose sight of. The writ petitioner has passed Madhyamik Examination in first division thereby securing 629 marks out 800 marks. Such meritorious candidate should be welcomed by the authority to impart education to the students who shall be benefited by her excellence. It is settled law that the court should not place reliance on a decision without discussing as to how the factual situation fits in with the fact situation of the decision on which the reliance is placed. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. (See State Financial Corpn. Vs. M/s. Jagadamba Oil Mills & Anr. reported in AIR 2002 SC 834 , Bharat Petroleum Corporation Ltd. Vs. N. R. Vairamani reported in (2004) 8 SCC 579 , Sumitabai Vs. Paras Finance Co. Regd. Partnership Firm Beawer (Raj) reported in (2007) 10 SCC 82 , Deepak Bajaj Vs. State of Maharastra reported in (2008) 16 SCC 14). Thus this court finds that there is a parity in fact as in case of Syed Khadim Hussain (supra) where it has been held that the initiation was made when the mother submitted an application and as such the subsequent application by the son after attaining majority cannot be said to be beyond the stipulated period. In a recent decision, the Division Bench of this court in case of the Chairman, District Primary School Council Vs. Sri Prithwish Samanta & Ors. reported in (2011) 1 WBLR 664 held that if the process of making a first application started, even at that point of time the applicant was minor, his second application, upon attaining majority, should be considered as continuation of an earlier one and the application could not have been dismissed on the ground that the same is filed beyond the prescribed period of two years. Thus I find that the order impugned passed by the authority concerned in rejecting an application on the point of limitation that the same is not filed within the prescribed period of 2 years from the date of the death of her father, is not tenable and is thus set aside and quashed. The respondent no. Thus I find that the order impugned passed by the authority concerned in rejecting an application on the point of limitation that the same is not filed within the prescribed period of 2 years from the date of the death of her father, is not tenable and is thus set aside and quashed. The respondent no. 2 is directed to consider the said application afresh treating the same as having filed within the prescribed period as enshrined under Rule 14 of the said Recruitment Rules of 2001 and such decision would be taken within 4 weeks from the date of communication of this order. The writ application is disposed of on above terms. However, there shall be no order as to costs. L A T E R After the judgment is delivered, Mrs. Sen prays for stay of the operation of the order. The same is considered and rejected.