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2012 DIGILAW 535 (CAL)

Mohasina Khatun v. State of West Bengal

2012-06-20

HARISH TANDON

body2012
The judgment of the Court was as follows:- The petitioner and the respondent have locked their horns to a solitary point whether the government order dated 12th April, 1987 survives even after promulgation of the 1991 and 2001 Recruitment Rules. 2. Admittedly the father of the petitioner was an Assistant Primary Teacher in the 39, Now para Primary School, under the Dhuliyan Circle, in the district of Murshidabad. He died in a road accident on 4th June, 2002 leaving behind him surviving his mother, widow and two unmarried daughters. Although, a sum of Rs. 1,300/- per month is sanctioned to the mother of the petitioner as family pension but the said family considered the said amount too insufficient to cater the daily needs. The petitioner was minor at the time of death of her father but attained the majority within two years of his father's death and made an application within the said period. It is expressly stated in the said application that the appointment could be made to the petitioner in commensurate with her qualification. 3. The said application was kept pending for a considerable period of time. In the mean time, the petitioner acquired a requisite qualification for being appointed to the post of Primary Teacher. 4. Because of the dormant and passive conduct of the respondent authorities in keeping the said representation in suspended animation and to awoke them by reminding their statutory responsibility, the petitioner moved a writ petition being W.P. 26379 (w) of 2007 which was disposed of by passing order dated 03.2.2011 directing the Chairman, District Primary School Council to consider the prayer of the petitioner for appointment under the compassionate ground. By the impugned decision, the said application is rejected as the petitioner failed to achieve the requisite qualification within statutory period of two years from the date of the death of her father. 5. The said authority appears to have invoked the provisions contained under West Bengal Primary School Teachers Recruitment Rules, 2001 framed in exercise of the power conferred under Section 106 and Section 60 of the West Bengal Primary Education Act, 1973. 5. The said authority appears to have invoked the provisions contained under West Bengal Primary School Teachers Recruitment Rules, 2001 framed in exercise of the power conferred under Section 106 and Section 60 of the West Bengal Primary Education Act, 1973. Rule 14 of the said rules deals with an appointment on compassionate ground arid provide such appointment on the death of a teacher before the attainment of superannuation where, in the opinion of the Council, the family is an extreme financial hardship that it fails to provide two square meals to the surviving member of the deceased teacher's family. It is further laid down therein that one of the ward of the deceased teacher's family, who possessed the require educational qualifications and not below the 18 years and is eligible to teach, may make an application within two years from the date of such death. 6. It is no doubt true that the petitioner did not acquire a requisite qualification during the aforesaid period of two years from the death of her father but an application was obviously taken out seeking an appointment in commensurate to her qualification. The aforesaid application was obviously made which is also according to the petitioner, in terms of the government order dated 12th October, 1987 which envisaged that the appointment on compassionate ground to the ward of a primary teacher who dies in harness, if, does not possess the requisite qualification for appointment as primary school teacher, may be considered for employment in any junior high/secondary/higher secondary school to the post in commensurate with her qualification. 7. By referring the aforesaid government order, it is tried to be contended that the application could not have been dismissed but should have been referred to the District Inspector of School in terms of the said government order for appointment to the post in commensurate to her qualification. 8. Additionally, it is now tried to be contended that in the mean time, the petitioner acquired a requisite educational qualification for appointment as primary teacher and the said application could not be thrown on such ground by placing reliance upon a division Bench judgment in case of Jharna Mallick v. State of West Bengal & Ors., reported in 2011 (4) WBLR 217 (Cal). 9. By promulgation of the West Bengal Primary Education Act, 1973, the earlier acts being Bengal. 9. By promulgation of the West Bengal Primary Education Act, 1973, the earlier acts being 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 repealed. Section 106 of the said Act of 1973 confers power upon the State Government to make rules. Pursuant to the rule making power, rules regulating the Recruitment & Leave of Teacher to the Primary School was framed vide notification No. 768-Edn (P) dated 22 November, 1981. Rule 35 of the said rules repealed all rules and orders made under the Repealed Act relating to the appointment of teachers and their service conditions. The said rules was also subsequently repealed and substituted by the West Bengal Primary School Teacher Recruitment Rules, 2001 which came into effect on and from 15th January, 2002. The Recruitment rules 2001 also contains repealed clause in similar and identical manner. 10. Admittedly at the time of the death of the petitioner's father, the recruitment rules 2001 was in vogue. It is no doubt true that the application should be considered in the light of the provisions governing and regulating the field for which it is made. Rule 14 of the said Rules is a guiding factor for consideration of the said application. By virtue of the repealing provision, all the orders or rules made in exercise of the Repealed Act no longer survives and were expressly perished. The legislature has protected those appointments made prior to coming in force of the aforesaid rules made under the orders which stood repealed thereunder. The said government order, therefore, to my mind, no longer survives after the promulgation of the aforesaid statutory rules by the State Government. 11. Even if it is held that the said government order dated 12th October, 1987 does not apply and Rule 14 of the said Rules applies, the said application could not have been dismissed on the aforesaid ground, for the reasons that at time of consideration of the said application, the petitioner acquired a requisite educational qualification for appointment to the post of a primary teacher. 12. 12. In case of Syed Khadim Hussain v. State of Bihar & Ors., reported in 2006 (9) SCC 195 , it is held that even if at the time of making an application, the applicant was minor but at the time of consideration, he was eligible for an appointment, the authority should not have rejected the application on the ground that the applicant was minor at the time of making it. 13. The division bench in case of Jharna Mallick (supra) held that the cold logic of law and rules being a trapping of the game does not apply in life because of its different situations and misreads. It is further observed that the authorities should not be mere mechanics of the system so as to overrule the sense of justice. 14. It is no doubt true that the authorities kept the application, which was taken out within the prescribed period of two years, in abeyance and at the relevant point of time when he was reminded of his statutory duty by this Court, his approaches are more mechanical then the justice oriented. Apart from the plea of having not acquired the educational qualification within two years from the date of the death, no other aspects are considered by the said authority. 15. The order impugned is, therefore, quashed and set aside. 16. As the ground assigned in the impugned order is contrary to the law declared by the Apex Court and the division Bench of this Court as referred above, the Chairman, District Primary School Council is directed to reconsider the said application on merit after giving an opportunity of hearing to the petitioner or her authorized representative and shall pass the reasoned order within 8 weeks from the date of the communication of this order in accordance with law. 17. If the said authority comes to the finding that the family is in financial distress under the unamended Rule 14 of the said rules of 2001, it shall forward the same to the Director of the School Education for necessary approval forthwith. 18. If such recolT1mendation is received by the Director of the School Education, it shall take the decision relating to the approval within 2 weeks there from and the said decision shall communicate the said decision immediately to the Chairman of the said Council. 19. The writ petition is thus allowed. 20. 18. If such recolT1mendation is received by the Director of the School Education, it shall take the decision relating to the approval within 2 weeks there from and the said decision shall communicate the said decision immediately to the Chairman of the said Council. 19. The writ petition is thus allowed. 20. There shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.