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2016 DIGILAW 64 (CAL)

Prasanta Mondal v. State of West Bengal

2016-01-19

TAPABRATA CHAKRABORTY

body2016
JUDGMENT : The instant writ application has been preferred challenging an order dated 13th April, 2012 passed by the respondent no.5. Mr. Dutta, learned advocate appearing for the petitioner submits that the petitioner’s father expired on 21st January, 1994 while working in the post of an Assistant Teacher of Primary under the Birbhum District Primary School Council (hereinafter referred to as the said Council). Due to loss of the sole bread earner of the family initially an application was made by the petitioner’s mother for grant of compassionate appointment on 30th May, 1994. Subsequent thereto, she made a further representation on 25th October, 1995 praying for appointment of his minor son, being the petitioner herein. Upon attaining majority, the petitioner also made an application for grant of compassionate appointment. Such claim of the petitioner was rejected by an order dated 17th January, 2002 passed by the said respondent no.5. Assailing the same a writ application was preferred. By an order dated 31st January, 2012 the impugned order dated 17th January, 2002 was set aside and a direction was issued upon the respondent no.5 to consider the application made by the petitioner afresh on merits. Pursuant thereto, an order was passed by the said respondent no.5 on 13th April, 2012 which has been challenged in the instant writ application. He further submits that within two years of the death of the petitioner’s father, the petitioner did not attain the age of majority (18 years) and that in case of a minor ward, the period of two years, as specified under the Rules regulating the Recruitment and Leave in Primary Schools in West Bengal published under notification no.768-Edn(P) dated 22nd November, 1991 (hereinafter referred to as the said Rules of 1991) should be relaxed and applied from the date the minor attains majority. He further submits that initially by a representation dated 30th May, 1994 the petitioner’s mother prayed for consideration of her claim towards compassionate appointment in place of her deceased husband but the authorities by keeping the same pending for a period of about eight years failed to discharge their statutory obligations conferred upon them by the prevalent rules. Having not considered such representation of the petitioner’s mother in time, the Council ought to have considered the claim of the petitioner who attained majority in the midst thereof. In support of such contention, Mr. Having not considered such representation of the petitioner’s mother in time, the Council ought to have considered the claim of the petitioner who attained majority in the midst thereof. In support of such contention, Mr. Dutta has placed reliance upon the judgment delivered in the case of Syed Khadim Hussain v. State of Bihar & Ors, (2006) 9 SCC 195 . Records reveal that the writ application was admitted with a direction towards affidavits and pursuant thereto, an affidavit-in-opposition has been filed by the said Council to which the petitioner has also used reply. Placing reliance upon the averments made in the affidavit-in-opposition, Mr. Sanyal, learned advocate appearing for the Council submits that the period of two years as prescribed under Rule 14 of the said Rules of 1991 stands repeated in the new Rules of 2001 and the said period is mandatory and as the petitioner did not attain the age of majority (eighteen years) within a period of two years from the death of his father, the Council had rightly rejected the petitioner’s claim and there is no infirmity in such decision making process. He further submits that no representation dated 30th May, 1994 stated to have been issued by the petitioner’s mother was received by the said Council. Furthermore, the petitioner’s mother was also not qualified for the post and no claim for her appointment was even agitated in the earlier writ application (W.P. 13345 (W) of 2003) preferred challenging the earlier order passed by the respondent no.5 on 17th January, 2002. He further submits that the death occasioned in 1994 and in view of the passage of time, the need towards grant of compassionate appointment does not survive. I have heard the learned advocates appearing for the respective parties and I have considered the materials on record. Records reveal that the petitioner did not attain majority within a period of two years from the death of his father on 21st January, 1994 and that the period of two years as prescribed under Rule 14 of the said Rules of 1991 also stands incorporated in the new Rules of 2001. Records reveal that the petitioner did not attain majority within a period of two years from the death of his father on 21st January, 1994 and that the period of two years as prescribed under Rule 14 of the said Rules of 1991 also stands incorporated in the new Rules of 2001. The fact that the said Council ought to have considered the claim of the petitioner’s mother pursuant to the initial representation made by her on 30th May, 1994 was also not urged in the earlier writ application and that as such the judgment delivered in the case of Syed Khadim Hussain (Supra) as relied upon by the petitioner, is distinguishable on facts. The questions as to whether an applicant seeking appointment on compassionate ground, who was a minor at the time of death of the concerned teacher or was a minor at the time of making an application within the statutory time frame of two years has a legal right to be considered for such appointment and as to whether on attaining majority a subsequent application can be deemed to be held as a continuing process notwithstanding the fact that such application was made after the statutory period of two years have already been decided by this Hon’ble Court in the case of Piyali Saha vs. State of West Bengal reported in 2013 (1) CHN Page 18 and it has been held that when the legislature has fixed a time limit in relation to a claim towards compassionate appointment, the Court cannot extend the said time limit. The time fixed in the said Rule is rigid and that subsequent application after attaining majority is not a lawful application and the same cannot be said to be a continuing process. In the conspectus of facts and in view of the judgment delivered in the case of Piyali Saha (Supra), there is no infirmity in the decision impugned in the instant writ application warranting interference of this Court and accordingly the writ application is dismissed. There shall, however, be no order as to costs. Urgent photostat certified copy of this order, if applied for, be handed over to the parties on compliance of necessary formalities.