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2012 DIGILAW 75 (CAL)

Sofikul Islam Khan v. STATE OF WEST BENGAL

2012-01-19

HARISH TANDAN

body2012
JUDGMENT HARISH TANDON, J 1. THIS is an application for restoration of the writ petition which was dismissed for default on 8th November, 2011. The cause for non appearance is shown in paragraph 3 and 4 of the said petition which is found sufficient. Application for restoration is, therefore, allowed. 2. THE writ petition is restored to its original file and number. By consent of parties the main writ petition is taken up for hearing. The petitioner claimed his appointment on compassionate ground on the death to his father who died during the extended period of his service. Admittedly the father of the petitioner who was a primary teacher attained the age of superannuation at the age of 60. Subsequently the concerned District Primary School Council granted the extension beyond the age of 60 years on the basis of an application taken out by the father of the petitioner. The said extension was initially for a period of one year renewable on yearly basis subject to the physical and mental condition of the said employee. 3. THE respondent authorities have taken a plea that the appointment to the ward cannot be made on compassionate ground if the teacher died during the extension period. 4. THE point which emerges for consideration in this writ petition is whether an appointment to the ward can be made on compassionate ground upon the death of a teacher during the extension period. 5. RULE 3D of the Bengal (Rural) Primary Education Rules 1940 provides that a 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. 6. 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. 7. 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. 8. 7. 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. 8. IN holding 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 State of West Bengal and Anr Vs- Pintu Nandi and Ors reported in 2005 (1) CHN 277 observed : "9. 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. In such rule making authority was to grant the said benefit to the dependent of an employee an express reference ought to have been made therefore 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." "10.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. We are also of the view that such a rule has to be expressly provided for." "10.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 a ail himself of the benefit of Rule 3D of the 1940 Rules." 9. 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. 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.