TAPAN KUMAR MONDAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In the instant application, a short question is involved as to whether the appointment on compassionate ground under die -in*harness category would be available to a ward and/or dependent of a primary school teacher, who breathed last while functioning in the school on extended term of service after crossing the age of 60 years. The Division Bench in M.A.T. 1442 of 1998 in the case of Ad -hoc Committee, Nadia District Primary School Council v/s. Md. Monirul Islam M.A.T. No. 1442 of 1998 (unreported), an unreported judgment passed on February 17, 1999, on consideration of the legal points involved, answered the points in negative way by holding that even on application of Rule 4A of the old rules as framed and constituted under the Bengal (Rural) Primary Education Act, 1930 named as 'Appointment of Leave Rule and Condition of Service, 1940' held that no benefit would be available for appointment under die -in -harness category.

(2.) However, the learned Advocate for the Petitioner in this case has relied upon the judgment passed /by a Single Bench of this Court being an unreported judgment passed on September 3, 1993 in the case of Subrata Sekhar Samanta v/s. State of West Bengal and Ors. CO. No. 9628 (W) of 1993 (unreported), as well as a Single Bench judgment passed on July 31, 1998 in the case of Shyama Prasad Roy v/s. State of West Bengal and Ors., C.L.T. 1998(3) H.C. 434 in support of his contentions that a Primary School teacher in terms of the said Rule 4A was eligible to get all the benefits including the benefits as available to their wards for appointment under die -in -harness category. Further the learned Advocate for the Petitioner has challenged the impugned order whereby reliance was placed to G.O. No. 111 -Edn. (P) dated February 12, 1992 on contending that the said G.O. was quashed by Dilip Kumar Basu, J. (as His Lordship then was) in the said case of Subrata Sekhar Samanta.

(3.) In this writ application, it appears that the Petitioner's father breathed last at the age of 62 years while functioning as primary school teacher in second extension period. The deceased teacher opted the pre -revised scale of pay with the view to have the consideration of his payer for extension of service after crossing the superannuation age of 60 years till the age of 65 years on year to year basis subject to physical fitness and mental alertness. Accordingly, the deceased teacher was guided and controlled by the old rule namely, the Appointment of Leave Rules and Condition of Service as introduced by Notification No. 1493 Edn. dated July 25, 1940 (hereinafter referred to as 'Appointment of Leave Rule, 1940). The Rule 3D whereby the provision was made for appointment of a ward of a primary teacher, who died -in -harness was introduced by Notification No. 731 -Edn. (P)9A/10/79 dated September 11, 1980. In the Rule 4A provision for extension of service on year to year basis subject to physical fitness and mental alertness was made.