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2014 DIGILAW 1087 (CAL)

Jahanara Begum v. State of West Bengal

2014-11-20

JYOTIRMAY BHATTACHARYA, TAPASH MOOKHERJEE

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JUDGMENT : Jyotirmay Bhattacharya, J. This writ file is placed before us pursuant to the direction passed by the Hon'ble Chief Justice on the request of a Learned Single Judge of this Court as the said Learned Single Judge while disposing of this writ petition could not concur with the view expressed by another Learned Single Judge of this Court in W.P.No. 22819(W) of 1997 (In Re: Ashok Acharyya) reported in 1998 WBLR (Cal) 236 on a common issue. 2. Let us first of all give the facts of the present case in which a common issue was raised on which two Benches of Co-ordinate Jurisdiction could not concur. The primary teacher, husband of the writ petitioner, died-in-harness on 22nd September, 1995. Immediately, thereafter on 4th February, 1996, the writ petitioner submitted an application to the Chairman, North 24 Parganas, District Primary School Council praying for her appointment in a suitable vacancy as per her qualification being class VIII pass, after considering the distressed family condition due to the death of the sole bread earner as she was compelled to maintain her minor son and three minor daughters at the relevant time. Dependency of the family and economic hardship was also certified by the concerned Pradhan of Kachua Gram Panchyat, in his letter dated 4th February, 1996. Since the writ petitioner did not get any response from the concerned authority, she filed another application to the Hon'ble Minister-in-Charge on 30th August, 2000 praying for recommendation of her son for being appointed in a suitable post as her son become major in the mean time and passed Madhyamik examination which is the requisite qualification for appointment in the post of primary teacher. Subsequently another application was filed by her on 8th March, 2002 in the same line to the Chairman of the said Council which was recommended by the Special Inspector of School, Basirhat West Circle. But ultimately no effective step was taken by the concerned authority to redress the grievances of the writ petitioner and as such, the writ petitioner was compelled to file a writ petition praying for her sons appointment as a primary teacher under the died-in-harness category or alternatively for her appointment as Group D staff in a Secondary or Higher Secondary school in pursuance of the letter No.457-Edn(P)/4A/50/83 dated 12th October, 1987 for which leave has been granted and argument was advanced. Since the primary teacher died on 22nd September, 1995 and no prayer was made for her sons appointment within the prescribed period of two years from the date of death of the said primary teacher, it was held that the writ petitioners prayer for her sons appointment as a primary teacher in a primary school under the Council cannot be allowed. Therefore, the only question which was left out in the said writ petition was to consider as to whether the other relief which the writ petitioner claimed for her appointment as Group D staff in a Secondary or Higher Secondary school in pursuance of the circular dated 12th October, 1987 could be granted or not. 3. While considering the said claim of the writ petitioner, a question came up for consideration before a learned Single Judge of this Court as to the applicability and/or enforceability of the Government circular dated 12th October, 1987 as it was argued by the learned Advocate of the State respondents that the Government circular which was issued on 12th October, 1987 i.e. before the Leave and Recruitment Rule of 1991 came into operation, became ineffective in view of the provisions contained in Rule 35 of the Leave and Recruitment Rule of 1991. Rule 35 of the Leave and Recruitment Rule of 1991 provides that all Rules and orders under earlier Act as made, in the event of any contrary provision to the present Rule, would be deemed as repealed. Admittedly, when the Assistant Teacher died, the Leave and Recruitment Rule which came into operation w.e.f. 25th of November, 1991 was effective. Undisputedly Government circular dated 12th October, 1987 was issued under the earlier Act and/or the Rules framed thereunder. 4. In this context, a question came up for consideration before the learned Single Judge of this Court as to whether the Government circular dated 12th October, 1987 stood repealed or not in view of the provisions contained in Rule 35 of the Leave and Recruitment Rule of 1991. 4. In this context, a question came up for consideration before the learned Single Judge of this Court as to whether the Government circular dated 12th October, 1987 stood repealed or not in view of the provisions contained in Rule 35 of the Leave and Recruitment Rule of 1991. A decision of another learned Single Judge of this Court in the case ofAshok Acharyya in W.P No.1998 WBLR (Cal) 236 was cited before the learned Single Judge dealing with the present writ petition to show as to how the impact of the said Government circular was considered by the learned Single Judge of this Court while dealing with Ashok Acharyyas case in an almost identical situation. The learned Single Judge while dealing with Ashok Acharyyas case held that when a statute is made and Rules are framed following the statute, the provisions contained in the statute and Rules cannot be dislodged or dethroned from the seat of justice, unless the viability of the statute or the Rules, as the case may be, is affected. It was further held therein that administrative circulars became a blunt weapon with the advent of legislation and if the administrative circulars and/or Rules are repugnant to each other there would be a complete anarchy and justice will cry in silence. 5. Thus, in short, His Lordship held that the administrative circulars cannot prevail over the statute and/or statutory Rules and holding as such, the relief which was claimed by the writ petitioner therein for him being recommended for his appointment as an Assistant Teacher in a primary school in the light of the Government circular dated 12th October, 1987, was not allowed by the Learned Trial Judge. The view which was expressed by His Lordship in the case of Ashok Acharyya was considered by the learned Single Judge of this Court while dealing with the present writ petition and ultimately a contrary view was expressed by His Lordship in the present writ petition. His Lordship held that only those Government circulars which were issued under the earlier Acts of 1963 and 1969, became ineffective and/or repealed where those Government circulars were in conflict with the provisions contained in Leave and Recruitment Rules of 1991. His Lordship held that only those Government circulars which were issued under the earlier Acts of 1963 and 1969, became ineffective and/or repealed where those Government circulars were in conflict with the provisions contained in Leave and Recruitment Rules of 1991. For ascertaining as to whether there was any conflict between the said Government circular dated 12th October, 1987 and Rule 14 of the Leave and Recruitment Rules of 1941, His Lordship quoted the said Government circular dated 12th October, 1987 and the relevant provisions of the Leave and Recruitment Rules, 1991, i.e Rule 14(a) of the said rule which deals with the case of compassionate appointment and after discussing every pros and cons of the said circular and the provisions contained in Rule 14 of the Leave and Recruitment Rules, His Lordship came to a positive finding that the provision contained in Government circular dated 12th October, 1987 was not in conflict with the provision contained in Rule 14 of the Leave and Recruitment Rules, 1991 and as such, administrative circular which was issued by the Government under Article 162 of the Constitution of India was held by His Lordship, as could not have been repealed by virtue of the provision contained in Rule 35 of the Leave and Recruitment Rules of 1991. His Lordship after examining the provisions contained in Rule 14(a) of the Leave and Recruitment Rules, 1991, held that there was no embargo or contrary provisions that the name of the dependant of deceased teacher under died in harness category who was not qualified with school final pass for the purpose of appointment as primary school teacher, could not be referred for his or her appointment as a Group D staff of a secondary school. In this context, His Lordship held that for fulfilling the social object as reflected in the said circular dated 12th October, 1987, executive direction was issued in terms of Article 162 of the Constitution of India to extend certain relief to the deserving candidates in a situation which was not covered by the Leave and Recruitment Rules of 1991, and as such it cannot be held that the Government circular dated 12th October, 1987 stood repealed and became ineffective since the time when the Leave and Recruitment Rules of 1991 came into operation. His Lordship went a step further by holding that the judgement passed by another learned Single Judge of this Court Ashok Acharyyas case is really per incuriam and has no binding effect in the eye of law. Thus, ultimately, the learned single Judge of this court while dealing with the present writ petition held that the benefit which is granted in the Government circular dated 12th October, 1987 can be extended to the writ petitioner herein and accordingly, writ in the nature of mandamus was issued commanding the Primary School Council to refer the name of the petitioner in terms of circular letter of 1987 to the concerned District Inspector of School (SE), North 24-Parganas for appointment of the petitioner as a Group D staff under died-in-harness category in any vacancy in such secondary school within two weeks from the date of the order and the District Inspector of School Secondary Education (SE), North 24-Parganas, respondent No.3 herein, was also directed to refer the name of the petitioner in any nearby school for her appointment as a Group D staff in the concerned vacancy within a month from the date of such reference. 6. Thus, we find that His Lordship while dealing with the said writ petition not only dealt with the effect of the Government order dated 12th October, 1987 but also held that the said Government order still remains effective and has not been repealed by Rule 35 of the Leave and Recruitment Rules of 1991 and the judgement which was passed by the Bench of Co-ordinate Jurisdiction in the earlier case of Ashok Acharyyas is per incuriam laying down no principle having the force of law. His Lordship has also, in fact, disposed of the writ petition by granting the ultimate relief which was prayed for by the writ petitioner therein. However, while disposing of the writ petition His Lordship felt the necessity of a reference to a larger Bench as the two Hon'ble Judges of this Court could not concur on the question of law as indicated above and accordingly a request was made to the Hon'ble The Chief Justice for a reference of this writ petition to a larger Bench. Pursuant to such request made by the learned Single Judge of this Court the writ file has been sent to us for ascertaining as to which one of those two decisions has laid down an effective principle having force of law. 7. Let us now see as to how far we can answer the question under reference in view of the Special Bench decision of this Hon'ble Court. 8. In the Special Bench judgement of this Hon'ble Court in the case of Hindustan Motors Ltd. v. National Insurance Co. 2009(2) CLJ(Cal) 49 it was held that once a Bench expresses a final opinion, it would have to be characterised as a judgement in view of the ratio laid down by the Hon'ble Supreme Court in the case of Shah Babu Lal Khimji v. Jayaben reported in AIR 1981 SC 1786 . It was further held by the Special Bench of this Court in the said case that making a reference to a larger Bench will not be permissible once final opinion is expressed by the Court. It was also held therein that while making a reference to a larger Bench, the referring Court is required only to express its prima facie/tentative opinion as to why it would not be possible to follow the earlier view of the Bench of a Co-ordinate jurisdiction. It was further held therein that reference can be made at a stage when a Bench of Co-ordinate Jurisdiction is inclined to take view that the earlier decision needs to be reconsidered but when final decision is taken on the issue, reference cannot be made to a larger Bench. 9. Thus, by applying the said principle laid down by the special Bench of this Court in Hindustan Motor (Supra), we hold that the present reference is an ineffective one as such reference was made at the instance of a Court which not only finally expressed its final view on the matter in issue but also granted the ultimate relief to the writ petitioner herein after holding that the decision given by court of Co-ordinate Jurisdiction in Ashok Acharyyas case is a decision in per incuriam. 10. 10. Though the learned Single Judge granted the ultimate relief to the writ petitioner by issuing a writ of mandamus upon the respondents but at the same time passed an order of stay of operation of His Lordships said order as His Lordship felt that the issue which was raised in the said writ petition as indicated above was required to be decided finally by a larger Bench of this Court and accordingly, stayed the operation of the order passed in the writ petition until the reference is decided by the larger Bench. In our view, grant of stay of operation of the order after disposing of the writ petition finally cannot alter the situation as after disposal of the writ petition, the Court becomes functus officio and the decision attains finality. By grant of stay, operation of the order is only kept in abeyance but the order remains alive in an inanimate position. We hold that the principles as laid down by the Special Bench in the case of Hindustan Motors Ltd. (supra) is applicable in the present reference. We thus, hold that the points under reference need not be answered in the present reference. 11. The writ petition is thus, deemed to be disposed of and the stay granted by the learned Trial Judge in the order disposing of the writ petition dated 5th August, 2003 is discontinued and thus the writ of mandamus issued by His Lordship in this matter becomes effective and operative from this day. Tapash Mookherjee, J. - I agree. Point under reference has not been answered.