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2020 DIGILAW 450 (CAL)

Madhumita Karan v. State Of West Bengal

2020-03-19

RAJARSHI BHARADWAJ

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JUDGMENT Rajarshi Bharadwaj, J. - Learned Counsel appearing for the petitioner submits that the petitioner's husband was appointed as an Assistant Teacher in Parbatipur Patitpabani High School (Higher Secondary), Gopalchak, Purba Medinipur on 16.06.2007 and he died-in-harness on 15.03.2013. The petitioner, Madhumita Karan, after her husband's demise, was residing at her in-law's house where she became subject to both physical and mental cruelty by her in-laws. The petitioner's father rescued her from her in-law's home. After her husband death, the petitioner on good faith handed over all the papers related to the application for her appointment on compassionate ground to her elder brother-in-law within the prescribed period of time to mitigate the hardship faced by her and her two minor children but her brother-in-law did not submit the application papers before the appropriate authority. Being ignorant of this fact, the petitioner made applications and reminders to the School authority and the District Inspector of Schools (SE), Purba Medinipur respectively for taking necessary steps regarding her appointment on compassionate ground. 2. Learned Counsel for the petitioner further submits that the District Inspector of Schools (SE), Purba Medinipur, after receiving the letter dated 02nd August, 2017 and reminders on 10th March, 2018 and 10th May, 2018 rejected the prayer of the petitioner as the application was filed on 02nd August, 2017, i.e. after two years of the death of the Assistant Teacher by his order dated 05th February, 2019 without considering that there was an unintentional delay in making application for appointment on compassionate ground. The impugned order dated 5th February, 2019 reads as follws: GOVERNMENT OF WEST BENGAL OFFICE OF THE DISTRICT INSPECTOR OF SCHOOLS (SECONDARY EDUCATION), PURBA MEDINIPUR P.O. TAMLUK , DIST: PURBA MEDINIPUR PIN- 721636 Memo No. : 135-S Date: 05.02.2019 To :The Administrator, Parbatipur Patit Pabani High School, P.O. Golapchak, Dist. Purba Medinipur, Pin- 721658 Subject : Regarding application of Smt. Madhumita Karan, wife of Late Debnath   Karan, deceased Assistant Teacher of the School. Ref. Purba Medinipur, Pin- 721658 Subject : Regarding application of Smt. Madhumita Karan, wife of Late Debnath   Karan, deceased Assistant Teacher of the School. Ref. : Your Memo No. DHC/1/2018 Dated 08.06.2018 With reference to the above, you have stated that Late Debnath Karan, Ex-Assistant Teacher of Parbatipur Patit Pabani High School expired on 15.03.2013 and you have also categorically stated that Madhumita Karan, W/O the deceased teacher had applied to the School Authority after a lapse of 04 (four) years from the date of sad demise of the said deceased Assistant Teacher i.e. on 02.08.2017, 10.03.2018 & 10.05.2018. But in terms of G.O. No. 697-ES/S/IS-18/08 Dated 09.07.2009 "When a Teacher or Non-Teaching Staff dies in harness before the date of his superannuation, i.e. the age of 60 years, leaving a family which is , in the opinion of the District Inspector of Schools (Secondary Education), in such extreme financial hardship that it fails to provide two square meals and other essentials to the surviving members of the deceased teacher's family, the (I) Spouse, (ii) Son, (iii) Daughter of the deceased Teacher or Non-Teaching Staffs family who is possessing required educational qualifications as laid down in Schedule I for the posts of Clerk or Group 'D' Staff and unemployed and not below 18 years of age and not above 45 years of age may, within two years from the date of such death, make an application in writing to the District Inspector of Schools (Secondary Education) for appointment as NonTeaching Staff on compassionate ground" Therefore, the said claim of Smt. Madhumita Karan sent by you can not be accepted. Sd/- District Inspector of Schools (Secondary Education), Purba Medinipur 3. Learned Counsel relied on several judgments pronounced by Hon'ble Supreme Court regarding such unintentional delays having been condoned. Learned Counsel pleads that in the Rules for appointment on compassionate ground, word 'may' is used which is directory in nature. In the case of State Of Haryana And Another Versus Raghubir Dayal, (1995) 1 SCC 133 , Hon'ble Supreme Court has held the words 'may' and 'shall' will be construed as directory in nature because the intention is to mitigate financial hardship. The Ld. In the case of State Of Haryana And Another Versus Raghubir Dayal, (1995) 1 SCC 133 , Hon'ble Supreme Court has held the words 'may' and 'shall' will be construed as directory in nature because the intention is to mitigate financial hardship. The Ld. Counsel refers to the judgment passed by Hon'ble Supreme Court in the case of Bhawani Prasad Sonkar Versus Union Of India And Others, (2011) 4 SCC 209 where it has been held that the appointment on compassionate ground has to be given on humanitarian ground. In the case of Sayed Khadim Hussain Versus State Of Bihar And Others, (2006) 9 SCC 195 , Hon'ble Supreme Court has condoned the delay of 11 years in making application for appointment on compassionate ground. 4. Learned Counsel pleaded before this court to set aside the impugned order dated 05th February, 2019 and to condone the unintentional delay caused by the petitioner in making application for appointment on compassionate ground and pass an order in favour of appointment of the petitioner. 5. Learned Counsel for the State argues that the petitioner, in this case, is getting family pension of Rs. 5556/- per month as granted by the respondent authority and has also got gratuity and other arrears. According to the Ld. Counsel, the statute has prescribed the limitation period for making application for appointment on compassionate ground and such period is of two years from demise of the deceased but in this instant case, the petitioner has made the application almost after four years from the demise of the said Assistant Teacher. Learned Counsel submits that the Hon'ble Larger Bench of our court in the case of Piali Saha Versus State Of West Bengal W.P. No. 4364(W) of 2011 has held that the delay in filing application for appointment on compassionate ground cannot be extended by the Court as the legislature has fixed the time limit in such cases and the Court can not extend it. Learned Counsel, pleads before this Court, not to condone such delay in filing the application, which was filed almost after four years from the death of the Assistant Teacher. 6. Heard both the parties. 7. Ld. Counsel appearing for the respondents relies on Piali Saha (Supra) and the above judgment is in refference to West Bengal Primary School Teachers Recruitment Rules 2001. 6. Heard both the parties. 7. Ld. Counsel appearing for the respondents relies on Piali Saha (Supra) and the above judgment is in refference to West Bengal Primary School Teachers Recruitment Rules 2001. But in the instant case West Bengal School Service Commission (Selection of persons for Appointment to the post of Non-Teaching Staff) Rules, 2009 more specifically. Notification NO. 697-ES/S/IS-18/08 dated 09th July, 2009 is to be considered. Schedule V of the said rules specifies the word "May" and whenever the question arises to condone the delay in filing the application for appointment on compassionate ground, it is considered that whether the reason behind such delay, in respect of compasionate appointment, is genuine and unintentional. Supreme Court in number of cases concluded that condonation of delay should be based on humanitarian ground. In the instant case, the writ petitioner, having two minor children, after sudden and premature demise of her husband was subject to cruelty by her in-laws in her in-law's house. The petitioner on good faith and on simple belief handed over all papers to her brother-in-law. But only in the year 2017, she came to know of the truth that no application was made on her behalf and thus, the petitioner filed an application on 02nd August, 2017. Therefore, the delay in filing the appliation dated 02nd August, 2017 is condoned. 8. In light of the abovementioned discussion, the impugned order dated 5th February, 2019 is set aside and the District Inspector of Schools (SE) Purba Medinipur is requested to consider the application of the petitioner dated 02nd August, 2017, in the light of the notification No. 697-ES/S/IS-18/08 dated 09th July, 2009 and on merits, within a period of 16 (sixteen) weeks from today and communicate the reasoned order to the petitioner at an earliest. 9. W.P. 12611(W) of 2019 is disposed of. 10. No order as to cost. 11. Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.