JAHANARA BEGUM Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This writ file is placed before us pursuant to the direction passed by the Hon'ble Chief Justice on the request of a learned Single Judge of this Court as the said learned Single Judge while disposing of this writ petition could not concur with the view expressed by another learned Single Judge of this Court in W.P. No. 22819 (W) of 1997 (In Re: Ashok Acharyya) reported in 1998 WBLR (Cal) 236 on a common issue. Let us first of all give the facts of the present case in which a common issue was raised on which two Benches of Co-ordinate Jurisdiction could not concur. The primary teacher, husband of the writ petitioner, died-in-harness on 22nd September, 1995. Immediately, thereafter on 4th February, 1996, the writ petitioner submitted an application to the Chairman, North 24 Parganas, District Primary School Council praying for her appointment in a suitable vacancy as per her qualification being class VIII pass, after considering the distressed family condition due to the death of the sole bread earner as she was compelled to maintain her minor son and three minor daughters at the relevant time. Dependency of the family and economic hardship was also certified by the concerned Pradhan of Kachua Gram Panchayat, in his letter dated 4th February, 1996. Since the writ petitioner did not get any response from the concerned authority, she filed another application to the Hon'ble Minister-in-Charge on 30th August, 2000 praying for recommendation of her son for being appointed in a suitable post as her son become major in the mean time and passed Madhyamik examination which is the requisite qualification for appointment in the post of primary teacher. Subsequently another application was filed by her on 8th March, 2002 in the same line to the Chairman of the said Council which was recommended by the Special Inspector of School, Basirhat West Circle. But ultimately no effective step was taken by the concerned authority to redress the grievances of the writ petitioner and as such, the writ petitioner was compelled to file a writ petition praying for her son's appointment as a primary teacher under the died-in-harness category or alternatively for her appointment as Group 'D' staff in a Secondary or Higher Secondary school in pursuance of the letter No. 457-Edn(P)/4A/50/83 dated 12th October, 1987 for which leave has been granted and argument was advanced. Since the primary teacher died on 22nd September, 1995 and no prayer was made for her son's appointment within the prescribed period of two years from the date of death of the said primary teacher, it was held that the writ petitioner's prayer for her son's appointment as a primary teacher in a primary school under the Council cannot be allowed. Therefore, the only question which was left out in the said writ petition was to consider as to whether the other relief which the writ petitioner claimed for her appointment as Group 'D' staff in a Secondary or Higher Secondary school in pursuance of the circular dated 12th October, 1987 could be granted or not.

(2.) While considering the said claim of the writ petitioner, a question came up for consideration before a learned Single Judge of this Court as to the applicability and/or enforceability of the Government circular dated 12th October, 1987 as it was argued by the learned Advocate of the State respondents that the Government circular which was issued on 12th October, 1987 i.e. before the Leave and Recruitment Rule of 1991 came into operation, became ineffective in view of the provisions contained in Rule 35 of the Leave and Recruitment Rule of 1991. Rule 35 of the Leave and Recruitment Rule of 1991 provides that all Rules and orders under earlier Act as made, in the event of any contrary provision to the present Rule, would be deemed as repealed. Admittedly, when the Assistant Teacher died, the Leave and Recruitment Rule which came into operation w.e.f. 25th of November, 1991 was effective. Undisputedly Government circular dated 12th October, 1987 was issued under the earlier Act and/or the Rules framed thereunder.

(3.) In this context, a question came up for consideration before the learned Single Judge of this Court as to whether the Government circular dated 12th October, 1987 stood repealed or not in view of the provisions contained in Rule 35 of the Leave and Recruitment Rule of 1991. A decision of another learned Single Judge of this Court in the case of Ashok Acharyya in W.P. No. 1998 WBLR (Cal) 236 was cited before the learned Single Judge dealing with the present writ petition to show as to how the impact of the said Government circular was considered by the learned Single Judge of this Court while dealing with Ashok Acharyya's case in an almost identical situation. The learned Single Judge while dealing with Ashok Acharyya's case held that when a statute is made and Rules are framed following the statute, the provisions contained in the statute and Rules cannot be dislodged or dethroned from the seat of justice, unless the viability of the statute or the Rules, as the case may be, is affected. It was further held therein that administrative circulars became a blunt weapon with the advent of legislation and if the administrative circulars and/or Rules are repugnant to each other there would be a complete anarchy and justice will cry in silence.