RAIHAN BIBI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) HEARD the learned Advocates for the parties.

(2.) IN the writ application the Petitioners have challenged the decision dated January 11, 2002 passed by the Director of School Education, West Bengal whereby and where under the prayer of the Petitioner No. 2 seeking job of Assistant Teacher under die -in -harness category was rejected on several grounds namely, at the material time when the teacher breached last, no application was filed, the Petitioner No. 2 was not qualified to be appointed as Assistant Teacher of a Primary School and after being qualified as such the Petitioner No. 2 submitted an application at long belated stage of seven years from the date of death of the father. Earlier the present Petitioner No. 2 moved a writ application being W.P. No. 352 (W) of 2001, which was disposed of by the order dated January 11, 2001 by D.P. Kundu, J. directing the Director of School Education, West Bengal to decide the issue. It is the case of the Petitioner that his father breathed last on November 9, 1993 when admittedly except the eldest daughter Jaira Bibi of the deceased teacher, other sops and daughters were not only minor but were not qualified to be appointed in the post of Assistant Teacher of a Primary School. In para. 6 of the writ application the Petitioners namely, the widow of the deceased teacher and the son of the said teacher submitted that on November 20, 1993 a prayer was made to provide job in favour of Jaria Bibi, who was qualified to be the Primary Teacher as except her there was none in the family to be appointed as such. On December 14, 1993, another application was filed by the Petitioner No. 1, the widow of the deceased teacher, seeking any job. In terms of the relevant Circular Letters namely, Circular Letter No. 457 -Edn. (p) -4A/50/83 dated October 12, 1987 since there was no job in Primary School, this application of the Petitioner No. 1 was required to be placed to the office of the District Inspector of Schools (SE) Birbhum. However, the Petitioner No. 1 did not agitate her such grievance in any Forum earlier and even in this writ application no prayer has been made by the Petitioner No. 1 seeking such relief namely, consideration of her appointment as Group 'D' staff in any Secondary School under die -in -harness category. However, from the petition it appears that since the eldest daughter namely, Jaira Bibi got married, there was no scope to provide appointment to that lady, the Petitioner No. 2 after passing Madhyamik Examination in the year 1999 that is after six years from the date of death of the deceased teacher applied on February 20, 2000 seeking job under compassionate ground. Since the authority concerned kept the matter pending, the writ application number W.P. No. 352(W) of 2001 was moved by the Petitioner No. 2 when by the order dated January 11, 2001 D.P. Kundu, J. directed the Respondents concerned to decide the issue. In pursuance thereof, the impugned decision of the writ application was passed by the Director of School Education, West Bengal. Hence, in the writ application the only question as required to be considered as urged by both the Petitioners namely, legality and validity of the impugned decision passed by the Director of School Education, West Bengal and the scope of providing job to the Petitioner No. 2 in the post of Assistant Teacher of a Primary School in terms of the application dated February 20, 2000. It is an admitted fact that the Petitioner No. 2 first time applied seeking job after seven years from the date of death of his father. It is a settled law that the appointment under compassionate ground is neither hereditary nor is a matter of right. It is also a settled law that appointment under compassionate ground is to meet the social justice doctrine for the purpose of mitigating the economic stringency as was facing by the family members due to sudden death of the bread earner. Hence, the object of appointment on compassionate ground is bearing a social object and the end is to mitigate the economic stringency immediately. This provision for providing appointment under compassionate ground relating to the teaching staff of a primary school was first time introduced in the year 1977 by the Government Circular Letters that is by the executive decision of the State Government. Subsequently, the State Government exercising its legislative power framed and constituted a rule named and styled as 'Recruitment and Leave Rules' regulating service conditions of teachers of Primary schools, West Bengal, which was issued under Notification No. 768 -Edn. (P) dated November 22, 1991. This Rule was issued in exercise of the power conferred by Sub -section (1) of Section 106 of the West Bengal Primary Education Act, 1973. In terms of the said Rules under Rule 14 the provision has been made for providing appointment under compassionate ground. This Rule came into effect in terms of the Notification dated November 22, 1991. Under this Rule, time limit of filing such application has been prescribed as within two years from the date of such death. Besides, specific time limit for filing such application within two years also was made by earlier circular letters being the executive direction of the State Government under Memo No. 101 -Edn. (P) dated February 28, 1980. Hence, it is a settled position that with effect from February 28, 1980 the time limit for filing application seeking job under die -in -harness category was fixed as two years from the date of death of the deceased teacher. It is an admitted position that the Petitioner No. 2 herein after being qualified in the year 1999 by passing Madhyamik Examination applied on February 28, 2000 seeking job under compassionate ground, which was roughly seven years from the date of death of his father. This grievance of the Petitioner No. 2 was brought to the High Court on the earlier proceeding, by which the High Court directed the Respondents concerned to decide the matter. In the impugned decision, in this writ application, a reason was assigned to reject the prayer of the Petitioner No. 2 by holding that application was not maintainable in view of the statutory embargo of filing application within two years. After seven years from the date of death of the deceased teacher, there was no scope of providing appointment under compassionate ground. Considering the relevant statutory provisions as already referred to namely, limitation of filing application being two years as introduced by the executive order long back in the year 1980, which ultimately became a part of the rule in the year 1990 as already referred to, this Court is not inclined to interfere with the impugned decision passed by the Director of School Education, West Bengal, "i he application of the Petitioner seeking job after long seven years from the date of death of his father was not legally, maintainable in terms of Rule 14 of the aforesaid Rules which is a statutory Rule acting in the field on question. Furthermore, in view of the settled judgment of the Apex Court passed in the case Haryana State Electricity Board v. Naresh Tanwar : J.T. 1996 (2) S.C. 542 : (1996) 8 S.C.C. 23 : 1996 (2) S.L.R. 11 it has been held that no such appointment can be given at the belated stage of so many years when already the urgent need to cope up with the financial stringency as caused due to the death of the sole bread earner already mitigated to a certain extent. Having regard to the consideration of the relevant facts accordingly the prayer of Petitioner No. 2, who has been supported by the Petitioner No. 1, the widow, is not legally sustainable. However, the learned Advocate for the Petitioner submitted further that widow was eligible to be appointed in terms of her qualification in the appropriate post when such application was filed on December 14, 1993. However, from the records it appears that the widow, the Petitioner No. 1 has not taken any such point in this writ application praying remedy in terms of her application dated December 14 1993 seeking job in her favour. In earlier proceeding also the Petitioner No. 1 was not a party and no grievance was made. Hence, it is abundantly clear that the widow Petitioner did not press her grievance for being appointed save and except filing of an application but through she was inclined initially to provide a job in favour of her eldest daughter as primary teacher and subsequently at present in favour of her son, who, was qualified in the year 1999 to be appointed as primary teacher.

(3.) IN that view of the matter, the contentions of the learned Advocate fails. In conclusion, having regard to the settled judgment on the statutory provisions accordingly this Court is not interfering with the impugned decision as passed by the Director of School Education, West Bengal.