AMITAVA DEY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Heard the learned advocate appearing for the parties.

(2.) In the instant writ application the petitioner challenged the decision dated 1.3.96 passed by the Chairman, Adhoc Committee, Birbhum District Primary School Council, Suri, being annexure 'E' to the writ petition, whereby and whereunder the petitioner's prayer for appointment on compassionate ground under died-in-harness category was rejected upon holding, inter alia, that petitioner had sufficient means to maintain himself due to his stay in town where he was maintaining himself being engaged as private teacher. In the impugned decision the said authority did not deal with the contentions made in the earlier writ application filed by the petitioner upon which Paritosh Kumar Mukherjee, J. (as His Lordship then was) by the order dated 11.2.94 directed the said authority to decide annexure 'B' to the writ application. Annexure 'B' to the said writ application was an application dated 24.3.93 filed by the present petitioner just immediately after the death of father on 6.2.93 who was a primary teacher and died-in-harness upon contending, inter alia, that at the time of death his father left behind two sons and one daughter, amongst them the elder son was married six years before the death of the father and the daughter got married three years before the death of the father and thereby the petitioner became the sole dependant of the deceased father till his death and being qualified with pass in Madhyamik examination as well as due financial constrain was entitled to be considered for appointment under compassionate ground for the post of assistant teacher in a primary school. This representation since was not disposed of, the petitioner ultimately moved this writ Court when the aforesaid order dated 11.2.94 was passed by Paritosh Kumar Mukherjee, J. (as His Lordship then was) disposing of the writ application. However, from the records it appears that the petitioner's brother who was married six years before the death of the father, also moved the writ application before this Court praying for consideration of his representation seeking job on compassionate ground which was registered as C.O. No. 18842(W) 1993 whereby and whereunder Susanta Chatterjee, J. (as His Lordship then was) directed the concerned authority to decide the question upon hearing the said petitioner. In pursuance thereof the present petitioner as well his brother both were heard by the Chairman, Adhoc Committee, Birbhum District Primary School Council hereinafter referred to as the Chairman and a decision was reached rejecting the prayer of both the persons concerned on different grounds. So far as the rejection made in respect of the prayer made by the petitioner's brother it was asserted that petitioner's brother was not only married but was engaged in business and thereby was not at all dependent of his father at the material time when teacher breathed last. So far as the present petitioner's case is concerned it has been considered with reference to the contention made in the writ application wherein the petitioner contended that long after the death of the father, the petitioner to maintain himself started to reside in the town and somehow was maintaining by engaging himself in the job of "private tuition" and had no regular income. It is submitted by the learned advocate for the petitioner that the impugned order is de-hors of the statutory provision and the reason as assigned is not legally sustainable, far to say sufficient reason. It has been submitted that the financial condition of the petitioner as dependent of a deceased father as was existing at the material time were not all looked into and considered but on the contrary the concerned authority decided the matter on the basis of subsequent events when to maintain livelihood the petitioner was compelled to render job of "private tuition".

(3.) The learned advocate for the respondents strongly opposed the contention of the petitioner and it has been contended by the learned advocate for the respondents, inter alia, that the petitioner had no hereditary right to claim service after the death of the father. It is further contended that since the matter was considered and decided by the competent authority by assigning the reason, this Court sitting in the writ jurisdiction will not test the sufficiency of the reason and to that effect reliance has been placed to the judgment passed by Paritosh Kumar Mukherjee, J. (as His Lordship then was) in the case of Niranjan Ghosh v. The Managing Director, Durgapur Steel Plant & Ors., reported in Cal LT (1993)1 HC 146. It is contended further that since one of the members of the family i.e. elder brother was already running a business, accordingly in terms of the Apex Court judgment the present petitioner is not entitled to have relief by way of appointment on compassionate ground. The learned advocate has referred to a judgment in support of his argument, as passed by the Apex Court in the case of Steel Authority of India Ltd. & Anr. v. Awadhesh Singh & Ors., reported in JT 2001(4) SC 73. It is contended further that the compassionate appointment is only to rehabilitate the family in distress of the deceased employee who died-in-harness and since the petitioner somehow is maintaining himself by private tuition there is no question of economic distress which is a condition precedent for providing job on compassionate ground. Reliance has been placed to the judgment passed in the case of Dalla Ram v. Union of India & Ors., reported in AIR 1999 SC 564. The learned counsel contended further upon relying the judgment passed in the case of Sanjay Kumar v. State of Bihar & Ors., reported in (2000)7 SCC 192, that after long lapse of so many years the petitioner had no right to claim appointment. Compassionate appointment is intended to enable the family of the deceased employee to tide over immediate crisis resulting due to death of the bread-earner who had left the family in penury and without any means of livelihood. It is contended that the petitioner's case is not on "no means of livelihood". But here it is the case that the petitioner is maintaining himself from the income of "private tuition" and in that view of the matter the petitioner does not deserve any relief. On consideration of the relevant arguments of the learned advocates appearing for the parties now the points to be decided whether the petitioner's prayer as made seeking appointment on compassionate ground on 12.4.93 has been properly adjudicated. Relevant provision of the Rule is to be looked into for effecting adjudication of the matter. Rule 3D of Appointment Leave Rules and Condition of Service as framed under the Primary Education Act, 1930 was the only guiding rule for consideration of this matter, as the cause of action for such consideration of appointment on compassionate ground arose when the teacher breathed last in February, 1993. Though at the material time in the year 1993, West Bengal Primary Education Act, 1973 came into effect but the recruitment leave rules as framed and constituted in terms of section 106 of the 1973 Act got no effect though it was notified in the year 1991 till 24.2.96 in view of stay order passed by a single Judge of this Court which was vacated by the Division Bench in the case Biman Chandra Karmakar & Ors. v. State of West Bengal & Ors., reported in 1998(1) CLJ 374. In terms of paragraph 5 of the said judgment, the recruitment and leave rules as modified on 27.11.1999 practically came into effect from 24.12.96 when the Division Bench decided the appeal and vacated the order of stay as passed by the Trial Court against whose order the aforesaid appeal arose. Hence, for adjudication of this case, Rule 3D under Bengal (Rural) Primary Education Act, 1930 is to be quoted. The relevant provision reads as follows: