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2015 DIGILAW 220 (CAL)

Kalyani Bhattacharyya v. State of West Bengal

2015-03-09

ASHOKE KUMAR DASADHIKARI

body2015
JUDGMENT : Ashoke Kumar Dasadhikari, J. The father of the writ petitioners who was an assistant teacher in a secondary school died in harness on 30th November 1998. On his death, his widow applied for appointment on compassionate ground. Although her name was recorded in the life register, ultimately no decision was taken on her prayer for appointment on compassionate ground. Then the son of the deceased teacher applied for appointment on compassionate ground in Die'in'harness category. His name was recorded in the life register again maintained by the office of District Inspector of School, Secondary Education, Birbhum. Be it recorded that the petitioner being the son of the deceased teacher did not have requisite qualification for being appointed as an assistant teacher in the secondary school. His name was forwarded by the District Inspector of School, Secondary Education, Birbhum to the concerned District Primary School Council for consideration of his prayer for appointment as a primary teacher. 2. Petitioner's prayer for appointment as a primary teacher was kept pending for a long time. Petitioner moved writ petition being WP 30091(W) of 2008 which was disposed of by this court on 31st March 2009 directing the concerned respondents to consider the representation of the petitioner and dispose of the same in accordance with law upon hearing the petitioner and passing a reasoned order within 12 weeks from the date of communication of the order passed by the Hon'ble court. 3. Pursuant to such direction writ petitioner was called upon by the Chairman, Birbhum District Primary School Council to submit some documents and papers. In view of such direction, petitioner submitted all papers before the Chairman, Birbhum District Primary School Council as well as the DI of School, Mollarpur East Circle, Birbhum. In spite of receipt of all those documents in August 2012, no decision was taken on the application of the petitioner for his appointment on compassionate ground. Proposal for appointment was also not sent by the Chairman of the District Primary School Council to the Director of School Education, West Bengal, now designated as Commissioner of School Education, West Bengal for approval. Proposal for appointment was also not sent by the Chairman of the District Primary School Council to the Director of School Education, West Bengal, now designated as Commissioner of School Education, West Bengal for approval. Thereafter second writ application was filed by the petitioner with a prayer for issuance of writ of mandamus directing the Chairman, Birbhum District Primary School Council to forward the proposal for compassionate appointment before Director of School Education, now designated as Commissioner of School Education with a further direction upon the Director of School Education to approve the same on receipt of such proposal from the Chairman. The second writ application filed by the petitioner was also dismissed by the learned single judge. 4. The widow as well as the petitioner preferred an appeal being MAT 1747 of 2013. The appeal was heard before the Hon'ble Division Bench and the appeal was disposed of with the following direction : "Having regard to the stage up to which the application of the appellant/petitioner No.2 has already proceeded with before the concerned District Primary School Council, we dispose of this appeal by directing the Chairman of the Birbhum District Primary Schools Council to take his ultimate decision on the fate of the said application of the appellant/petitioner No.2 and if ultimately a decision is taken by the said Chairman of the Council in favour of the appellant/petitioner No.2, he should forward the proposal for his appointment to the Director of School Education now designated as Commissioner of Schools Education, West Bengal so that the said authority can take the ultimate decision for approving the appointment of the appellant/petitioner No.2 immediately thereafter. It is made clear that while disposing of the appeal, we have not considered the jurisdictional issue regarding jurisdiction of the Chairman of the said Council to entertain the prayer of the appellant/petitioner No.2 for his appointment on compassionate ground as raised by Mr. Sanyal. As such, if ultimately the Chairman forms an opinion that under the existing Act and the Rules framed thereunder and/or any other relevant circulars etc. such a decision cannot be taken by him, he must give reasons in support of his conclusion and communicate the same to the appellants/petitioners. Such exercise should be completed within four weeks from the date of communication of this order. such a decision cannot be taken by him, he must give reasons in support of his conclusion and communicate the same to the appellants/petitioners. Such exercise should be completed within four weeks from the date of communication of this order. It is made clear that in the event the Chairman of the concerned District Primary Schools Council ultimately holds that he has no jurisdiction to take the ultimate decision on such prayer of the appellant/petitioner No.2 then he must forward all the necessary papers to the concerned authority who has jurisdiction to deal with the appellant/petitioners' such application within two weeks from the date of taking such decision so that the prayer of the appellant/petitioner No.2 for his appointment on for compassionate ground can be considered by the appropriate authority without any further delay. The order impugned passed by the Learned Single Judge is thus, set aside. The appeal is allowed with the above observations. Both the appeal and application are disposed of." 5. In view of the aforementioned order directing the Chairman of the concerned Council to decide the case of the petitioner. It was made clear that in the event Chairman of the concerned District Primary School Council ultimately held that he has no jurisdiction to take ultimate decision, he will forward all necessary papers to the concerned authority who has jurisdiction to deal with. In terms of the order of the Hon'ble Division Bench dated 6th March 2014 the matter was taken up by the Chairman, Birbhum District Primary School Council and the petitioner's case was not considered taking note of Rule 14 of the Rules framed under the West Bengal Primary Education Act 1973. It was held by the Chairman concern that he has no jurisdiction. The order passed by the Chairman on 21st April 2014 reads as follows :- "Pursuant to the solemn order dated 6th March 2014 passed by the Hon'ble Division Bench, the undersigned has taken up the application and/or case of the writ petitioner appellant no. 2 for consideration of appointment on compassionate ground owing to death of his father, Lokendra Kumar Bhattacharya, an approved Assistant Teacher of a secondary school namely, Birchandrapur Nityananda High School, P.O Birchandrapur, P.S. Mallarpur, Dt. - Birbhum who died in harness on 30th November 1998. 2 for consideration of appointment on compassionate ground owing to death of his father, Lokendra Kumar Bhattacharya, an approved Assistant Teacher of a secondary school namely, Birchandrapur Nityananda High School, P.O Birchandrapur, P.S. Mallarpur, Dt. - Birbhum who died in harness on 30th November 1998. It appears from records that case of Falguni Bhattacharyya for appointment on compassionate ground in place of his deceased father who was a secondary school teacher was forwarded by the District Inspector of Schools (SE) Birbhum for appointment as a primary teacher under the Council. When the father of the writ petitioner appellant died on harness in 1998 and application for compassionate appointment made on his behalf in the year 2000, the West Bengal Primary Education Act, 1973 had already come into force. The Recruitment Rules, 1991 was also framed by the State Government under the said Act in exercise of its powers which was also in force at that point of time. According to Rule 14 of the said Rule, the Council could consider only the case of a ward of a primary School teacher for appointment and could sent the proposal for such appointment to the Director of School now Commissioner of School Education. According to Rule 2(m) of the said Rules, a 'teacher' means a person who holds a teaching post in a primary school or in a junior basic school appointed in the prescribed manner on a regular and full time basis and is paid either holly or in part from the funds under the control of the State Government in the Education Department. Since the father of the writ petitioner appellant no. 2 was a secondary school teacher, the undersigned has no authority to take into consideration any application for compassionate appointment of a ward of a secondary school teacher within the meaning of Rule 14 read with Rule 2(m) of the Recruitment Rules, 1991. Reference to Government Order No. 457 Edn (P) dated 12th October 1987 for consideration the case of the writ petitioner appellant no. 2 Falguni Bhattacharyya, is thoroughly misplaced inasmuch as upon coming into force of the Act of 1973 and the Rules of 1991 framed thereunder with the specific provision of appointment of wards of primary school teacher on compassionate ground, the said Government order stood obsolete and repeated in terms of Rule 31 of the Recruitment Rules, 1991. 2 Falguni Bhattacharyya, is thoroughly misplaced inasmuch as upon coming into force of the Act of 1973 and the Rules of 1991 framed thereunder with the specific provision of appointment of wards of primary school teacher on compassionate ground, the said Government order stood obsolete and repeated in terms of Rule 31 of the Recruitment Rules, 1991. In view of the aforesaid, the undersigned has no jurisdiction and authority to deal with the case of the writ petitioner appellant no. 2 and accordingly, the same is returned with all necessary documents herewith to the District Inspector of Schools (SE), Birbhum." 6. Mr. Bari, learned counsel appearing for the writ petitioners submits that the Chairman of the Council has jurisdiction in view of the Government policy which was declared by the Government by two successive Orders. One is of dated 12th October 1987 bearing Memo No 457 Edn (P) and another is of dated 22nd August 2005 bearing memo no. 898 SE (Pry). 7. Mr. Bari submits that as per first Government Order of 1987 it was declared by the Education Department, Primary Branch that if a ward of a primary school teacher who dies in harness does not possess the requisite qualification for appointment as a primary school teacher, or if the ward of a primary school teacher who dies in harness possesses the requisite qualification for appointment as a teacher in a Junior High/Secondary/Higher Secondary School etc. and opts for being appointed as such, the name of the ward in either case, should be forwarded by the concerned District Inspector of Schools (PE)/District School Board, as the case may be, to the District Inspector of Schools (Secondary Education) for providing him/her with employment on compassionate ground commensurate with his/her qualification and in that case the name should be placed just below the last name in the roster maintained for such cases by the District Inspector of School (SE). This would be vice versa in case of secondary school teacher who dies in harness but his ward or successor possessed qualification for being appointed as a primary teacher, his case should also be referred accordingly. 8. Mr. Bari then referred circular no. 898 SE (Pry) dated 22nd August 2005 wherein the concerned Joint Secretary of the School Education department reaffirmed the policy of the Government for giving such appointment in terms of the Government Order no. 8. Mr. Bari then referred circular no. 898 SE (Pry) dated 22nd August 2005 wherein the concerned Joint Secretary of the School Education department reaffirmed the policy of the Government for giving such appointment in terms of the Government Order no. 457 Edn (P) dated 12th October 1987 as well as other Government Orders. 9. Mr. Bari submits that this is a policy of the Government even after framing of the rules under the Act of 1973 and the Government is following the scheme. Mr. Bari submits that the Chairman of the Council is authorised and empowered and ought to have considered the case of the petitioner in stead of avoiding the petitioners' prayer for granting approval for recommendation of his case before the Commissioner of School Education. 10. Mr. Bari submits that the petitioner's prayer was approved by Sub inspector of School, Primary Education which was also forwarded to the Chairman of the School Council. Mr. Bari submits that this is the Government's policy and the Government's policy is being implemented by giving employment to various candidates in such type of cases. 11. Mr. Sanyal, learned counsel appearing for the Council submits that the decision of the Chairman of the Council is lawful and valid and also in consonance with the provisions made under the West Bengal Primary Education Act 1973 and its rules and regulations framed thereunder with upto date amendments. 12. Mr. Sanyal submits Act of 1973 which was enforced with effect from 1990 and the rules framed thereunder do not allow forwarding such proposal for appointment on compassionate ground in any primary school having regard to the fact that the father of the petitioner was an assistant teacher of a secondary school. 13. Mr. Sanyal submits "teacher" is defined under section 4(o) of Act 1973. He then submits that the provisions under section 14 also makes it clear that the Council may appoint primary teachers with the approval of Director of School Education, West Bengal or his authorised officer on compassionate ground only to the successor of the deceased teacher who died in harness before the date of his superannuation i.e. at the age of 60 years. 14. Mr. 14. Mr. Sanyal further refers provisions under section 28 of Primary Teachers Recruitment Rules 2001 and points out that all rules and orders made under West Bengal Rural Primary Education Act 1930 and thereafter Act 1963 and thereafter Act 1969 regarding appointment of teachers and service conditions of primary teachers contrary to the provisions of those rules are hereby repealed. According to Mr. Sanyal, the concerned Chairman is obliged to follow the provisions of the Act and the rules framed thereunder. 15. Mr. Sanyal categorically submits unless the concerned applicant is a successor of a primary school teacher, there is no scope for consideration of his candidature by the Commissioner of School Education. Mr. Sanyal submits that whatever notification was there, it has lost his significance and weightage in view of the promulgation of 1973 Act and the rules framed thereunder. Mr. Sanyal submits that the concerned Chairman has decided rightly that he has no jurisdiction to decide. According to him, the provisions of the Act and the rules framed thereunder override the notifications made by the state authorities. Therefore, the claim of the petitioner cannot be entertained at all. The concerned Chairman cannot consider his case. According to his submission, the writ petition must fail. 16. Mr. Kamalesh Bhattacharya, learned counsel appearing for the state submits that both the Orders were issued by the appropriate authority and the Government is following the same. Mr. Bhattacharya submits that as per those Orders the concerned Chairman is the authority to consider the case of the petitioner and according to him, the decision taken by the concerned Chairman is contrary to those Government Orders. 17. Mr. Bhttacharya submits these are all exceptional cases and the Government has taken policy in such type of exceptional matters and they are also obliged to follow the same. He further submits that this is the benevolent piece of decision taken by the Government for the persons who do not have requisite qualification to be appointed in higher secondary schools. Therefore, according to Mr. Bhattacharya all those Government orders are still in vogue and those were not withdrawn by any subsequent notification. 18. This court carefully considered the submissions made by the learned counsel for the respective parties. It is undisputed that the father of the petitioners died in harness. Petitioners' father was an assistant teacher in a secondary school. Therefore, according to Mr. Bhattacharya all those Government orders are still in vogue and those were not withdrawn by any subsequent notification. 18. This court carefully considered the submissions made by the learned counsel for the respective parties. It is undisputed that the father of the petitioners died in harness. Petitioners' father was an assistant teacher in a secondary school. After his death, widow made an application which was not dealt with by the authority concerned. Both mother and son moved this court on first occasion. This court directed for consideration upon Director of School Education, now Commissioner of School Education but that was also not considered. Second writ application moved and the second writ application was rejected. Hon'ble Division Bench directed the Chairman, Primary School Council to decide the matter and it was made clear that in the event he had no authority and jurisdiction, then the application should be referred to the appropriate authority. In view of the direction of the Hon'ble Division Bench, Commissioner of School Education decided the case of the petitioner holding that he has no jurisdiction to entertain his application. The ground for refusal as noted in the impugned order under challenge is, as per Rule 14 of the Rules the Council could consider only the case of a ward of primary school teacher for appointment and could send the proposal for such appointment to the Director of School, now Commissioner of School Education. Rule 2(m) of the said Rules which defines the terms "teacher" was referred. It was also his finding that in view of subsequent Act of 1973 and the rules framed in 1991, there is no application of Government Order no. 457 Edn dated 12th October 1987. Now the question arises whether the present Act and the rules framed do deal with case or it is dealt with by those two notifications only. On perusal of the aforementioned Act of 1973 and the rules framed under it, it is clear that the provisions deal with only the successors of primary teachers who die in harness. The Government policy as regards the successor of assistant teachers who die in harness during the service period as assistant teacher in higher secondary school having qualifications for appointment as primary school teacher was dealt with by the two notifications. The Government policy as regards the successor of assistant teachers who die in harness during the service period as assistant teacher in higher secondary school having qualifications for appointment as primary school teacher was dealt with by the two notifications. Therefore, the present Act of 1973 and Rules of 1991 do not apply in such type of exceptional cases. Accordingly, those rules have no manner of application in the instant case, which is an exceptional one. In this case petitioners' father who was working as assistant teacher in a secondary school, died in harness and petitioner's prayer for appointment as a primary school teacher commensurate to his qualification was considered by the Sub inspector of school and forwarded to the Chairman concerned was not considered and kept pending. Ultimately Hon'ble Division Bench directed the concerned Chairman to decide if it is within his jurisdiction. The concerned Chairman while deciding his jurisdiction failed to appreciate the true scope and meaning of Government orders; one is dated 12th October 1987 and another is dated 22nd August 2005. It is undisputed by the state Government counsel that Government's view and consistent policy is to accommodate the successors of deceased teachers who do not have requisite qualification to have their appointment in higher secondary school in "diein harness" category. The relevant portion of Government Order dated 12th October 1987 under clause (ii) reads as follows :- "If the ward of a primary school teacher who dies in harness does not posses the requisite qualification for appointment as a primary school teacher, or if the ward of a primary school teacher who dies in harness possesses the requisite qualification for appointment as a teacher in a Junior High/Secondary/Higher Secondary School etc. and opts for being appointed as such, the name of the ward in either case, should be forwarded by the concerned District Inspector of Schools (PE)/District School Board, as the case may be, to the District Inspector of Schools (Secondary Education) concerned for providing him/her with employment on compassionate ground commensurate with his/her qualification and in that case the name should be placed just below the last name in the roster maintained for such cases by the District Inspector of Schools(SE). Similarly, if the ward of a Junior High/Secondary/Higher Secondary School teacher or of a teacher of such other educational institutions under the School Education Directorate or a non teaching employee attached to a Junior High/Secondary/Higher Secondary School or other educational institutions under the Directorate of School Education who dies in harness does not posses the requisite qualification for appointment as a teacher in any of the said institution; but possesses the qualification for appointment as a primary school teacher and opts for being appointed as such the name of the ward should be forwarded by the District Inspector of Schools (SE) concerned to the District Inspector of Schools (PE)/District School Board, as the case may be, for providing him/her with employment on compassionate ground and in that case the name should be placed just below the last name in the roster maintained for such cases by the District Inspector of Schools (Primary Education)/District School Board concerned." 19. The subsequent circular was again published after the promulgation of 1973 Act and the Rules of 1991. 20. In view of the aforementioned two circulars the writ petitioner is coming under the exceptional category for which Government policy is different and according to the circulars the Chairman of District Primary School Council have definite jurisdiction to consider and take a decision in the matter. The concerned Chairman has made a serious mistake by mixing a special category with the general category of candidates who are governed under the provisions of the Act of 1973 and the Rules framed thereunder. In my view, there is no application of those provisions of the Act of 1973 and the Rules framed thereunder. Accordingly, the impugned order is set aside. 21. The Chairman of School Council is directed to recommend the case of the petitioner before the Commissioner of School Education for approval within four weeks from the date of communication of this order and the concerned Commissioner will give approval within two weeks thereafter. In view of above, writ petition is disposed of. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.