Judgment:
1. The petitioner has assailed the order passed by the Chairman, district Primary School Council, Burdwan vide memo no. 4600 dated 5.12.2005 by which an application for appointment on compassionate ground filed by the petitioner was rejected.
2. This case has a chequered history. The father of the petitioner died in harness on 10.6.1989 leaving behind him surviving the widow and the three minor sons including the petitioner and an unmarried daughter. The mother of the petitioner applied on 9.4.1990 before the Secretary, ad hoc Committee, District School Board to consider the candidature of the petitioner to be appointed on compassionate ground. Amidst pendency of the said application further application was taken out making the identical and similar prayer by the mother of the petitioner. Lastly, the petitioner in the month of August 1992 filed an application for consideration of his candidature for appointment to the post of assistant teacher on compassionate ground. None of the aforesaid applications were considered and disposed of by the concerned authority. The petitioner filed a writ petition being C.O no. 385 of 1994 before this court which was disposed of on 25.8.1994 by directing the respondent authorities to consider the aforesaid applications in accordance with the rules/circulars.
3. Pursuant to the said order the District Inspector of School (PE), Burdwan considered the said application and ultimately rejected the same holding inter alia :
“Although the petitioner is entitled to get appointment under died-inharness category but he was not qualified at that time neither in age nor in academic as his date of birth being 18.1.72 and while he passed the MP Examination in 1992 i.e. nearly 3 years later from the date of death of his father. In order to get the benefit of employment under this category the claimant should establish his claim with requisite qualification within two years from the date of death of the incumbent as per GO no. 101 Edn(P) dated 20.2.80.”
4. The aforesaid order was challenged by the petitioner before this court in CO no. 5101(w) of 1995 and this court while setting aside the said order held that the District Inspector of School (PE) who is a rule abiding officer took into consideration the government order being GO no. 101-Edn (P) dated 20.2.1980 but failed and neglected to take into consideration the letter no. 457-Edn (P) dated 12.10.1987 and directed the said District Inspector of School (PE) to consider the said application afresh in terms of the Recruitment and Leave Rules and/or any other letters issued by the State of West Bengal.
5. Now at this juncture the application was considered by the Chairman, ad hoc Committee, District Primary School Council, Burdwan. The application was again rejected having been filed beyond the prescribed period stipulated under the Recruitment and Leave Rules of Primary Teachers, 1991.
6. Again the said order was assailed by the petitioner before this court in WP no. 9750(w) of 1999 and this court while setting aside the said order observed :
“As a proposition of law also, I am of the view, that the petitioner has made out a strong case for applicability of the circular letter no. 457-Edn(P) since both at the time of death of his father and when his mother made this application, it was the 1987 circular which held the field. The entitlement of the petitioner to be appointed on compassionate ground arose when his mother made the application and at that point of time, as I have already observed the issue of compassionate appointment was guided by the 1987 Circular. However, since His Lordship in C.O no. 5101(w) of 1995 has left the determination of the applicability of rule in the hands of the respondent no. 5 in the writ petition, who it is submitted is the Chairman of the District Primary School Council, I refrain from adjudicating this issue. It does not appear from the impugned order that the Chairman of the District Primary School Council had applied his mind on the question as to whether the circular of 1987 would be applicable in the petitioner’s case or the 1991 Recruitment Rules would be the determinant. This is apparent from a plain reading of the order which is impugned and his made annexure ‘G’ to the writ petition. In view of the same, I am satisfied that the impugned order has been passed by the Chairman, District Primary School Council, Burdwan not as per direction of this court in C.O no. 5101(w) of 1995 and accordingly, quash the impugned memo. The respondent no. 6 is accordingly directed to reconsider the petitioner’s case for compassionate appointment for which purpose he shall first consider as to whether the provision of the 1987 circular applies or not. Thereafter he shall pass a reasoned order upon giving the petitioner reasonable opportunity of being heard. Further I make it clear that while undertaking this exercise, the concerned authority shall not be prevented from considering any other applicable rules for determining the petitioner’s status. He shall pass a reasoned order upon conclusion of such hearing within a period of eight weeks from the date of communication of this order. In the event, the concerned authority decides the matter in favour of the petitioner, he shall take immediate action to clear the petitioner’s candidature for compassionate appointment.”
7. The misfortune did not leave the petitioner. The said application was again rejected by the Burdwan District Primary School Council holding that the application filed by the petitioner is beyond the period of two years as enshrined under the Recruitment and Leave Rules of 2001 as well as at the time of the death of the father the petitioner did not acquire the requisite eligible qualification.
8. The said order is again challenged in this writ petition.
9. Mr. Kamalesh Bhattacharya, learned Advocate appearing for the petitioner submits that the order impugned is not sustainable inasmuch as the subsequent rules cannot be made applicable while considering an application for appointment on compassionate ground and the rule which was in vogue at the time of death of the employee should be applied while considering the said application. Alternatively he argues that even if it is held that the subsequent rule is applicable the mother of the petitioner filed an application within two years from the death of her husband and subsequent application by the petitioner may be treated as the continuation of an earlier one and the authority cannot reject such an application.
10. Mrs. Runa Chowdhury, learned Advocate appearing for the State submits that the authorities have considered the application and found that the petitioner is not entitled to an appointment on compassionate ground.
11. Having considered the submission made at the bar it is unfortunate that a litigant is constantly approaching the court for want of proper justice being not dispensed by the statutory authorities. In all the earlier occasions as narrated above, the authorities rejected the application on one pretext or another and this court on each of such occasion quashed and set aside the said decision.
12. The father of the petitioner died as far back as on 10.6.1989. Within a gap of one year, the mother took out an applicator seeking for the appointment of the petitioner on compassionate ground which was followed by the several other representations and lastly by the petitioner himself in the year 1992. When the last application was made by the petitioner by that time the petitioner already qualified the Madhyamik examination which is one of the essential eligible qualification for appointment to the post of a primary teacher. The authorities have rejected the application of the petitioner being filed beyond the stipulated period of two years by invoking Recruitment and Leave Rules of 2001.
13. It is profitable to quote Rule 14 of the West Bengal Primary Teachers Recruitment Rules 2001:
R. 14. Appointment on compassionate ground. – The Council may appoint primary teachers, with the approval of the Director of School Education, West Bengal or his authorized officer, on compassionate ground in the following cases where, in the opinion of the Council, the cases deserve compassionate consideration:-
(1) when a teacher dies in harness before the date of his superannuation i.e. at the age of 60 years, leaving a family which, in the opinion of the Council, is in extreme financial hardship that is it fails to provide two square meals and other essentials to the surviving members of the deceased teacher’s family, the following members of the deceased teacher’s family, viz, the
(a) widowed wife, or
(b) widower, or
(c) son, or
(d) unmarried daughter, or
(e) divorce dependent daughter – divorced before the date of death of the teacher,
possessing required educational qualifications as laid down in clause (a) and (c) of sub-rule (1) of rule 6 and unemployed, and not below 18 years of age and not above 45 years of age and fund eligible to teach, may make within two years from the date of such death, a prayer in wiring to the Council for appointment as primary teacher on compassionate ground, provided that only one member of a deceased primary teacher'’ family may be appointed on compassionate ground.
(2) when a primary teacher applies for being declared permanently incapacitated on medical ground, to the council for appearing before the Medical Board set up according to the procedure laid down in the Government Board, before attaining 58 years of age and discontinues to attend the school for such incapacitation, he may be allowed by the Council to retire on and from the date of submission of such application, provided that the Council is satisfied with such incapacitation and other conditions through Enquiry Committee, and provided further that, after receiving the report from the Council, the Medical Board set-up for this purpose declares him permanently incapacitated to continue in further service for a reasonable time and if his family is in extreme financial hardship after such retirement, the
(a) wife, or
(b) husband, or
(c) son, or
(d) unmarried daughter, or
(e) the divorce dependent daughter – divorced at least one year before submission of application for declaration of permanent incapacitation, of the incapacitated pre-maturely retired primary teacher, possessing requisite qualifications as laid down in clause (a) and (c) of sub-rule (1) of rule 6 and unemployed, and not below 18 years of age and not above 45 years of age and found eligible to teach may be appointed as primary teacher on compassionate ground on submission of prayer in writing within three months from the date of issue of certificate by the competent Medical Board. Only one member of the family of the declared permanently capacitated teacher may be appointed.
Government orders issued from time to time for appointment on compassionate ground shall also duly be considered in making such appointment. But if the Medical Board does not declare the teacher to be permanently incapacitated to continue in further service the Council will allow him to rejoin duty provided he does not attain superannuation. In such a case the period of absence will be regularized as per existing leave rules.”
14. On the reading of the said provision it appears that on two eventualities one of the family member can be appointed on compassionate ground, firstly, if an employee who died while in service and secondly, if an employee who became permanently disabled and incapacitated in continuing in service. It is further provided that the ward should be between the age of 18 years – 40 years and must have a requisite qualification as postulated in Rule 6(a) and (b) of the said Recruitment Rules of 2001.
15. The object for incorporating the Rules for appointment of one of the member of the family on compassionate ground is to tide over the family from sudden financial crisis. The appointment on the compassionate ground is not an another Rule of appointment but is an exception to the normal Rule.
16. As stated above, the first application filed by the mother of the writ petitioner seeking an appointment of the writ petitioner was within the stipulated period. The second application filed by the writ petitioner for the appointment was also within the time limit so prescribed but the third application which was filed after attaining majority was beyond the period fixed in the Recruitment Rules. Similar point cropped up in case of Syed Khadim Hussain v. State of Bihar & Ors. reported in (2006) 9 SCC 195 where the widow applied for appointment within the prescribed period but such application was rejected without assigning any reason. The second application was taken out by the son who was 13 years old. The said application was also rejected. The third application was made by the son after attaining majority which was also rejected as the same is filed beyond the statutory period. It was held that since the first application was made within the time and had been rejected without assigning any reason it would be deemed that the applications are initiated within the time so prescribed.
17. In case of Khadeja Bibi & Ors. v. State of West Bengal & Ors. reported in 2000 (2) CLJ 108 this court has an occasion to deal whether the Rule framed for appointment on compassionate ground is mandatory or directory. It has been specifically held in the said case that the rules are directory. There cannot be strait jacket formula to be framed that every application made beyond the prescribed period, the same should be considered as the provision is directory but it depends upon the facts of the each case and in appropriate cases the authorities are empowered to turn down the application. In the instant case the initiation was done within the time-frame.
18. In a recent decision, the Division Bench of this court in case of the Chairman, District Primary School Council v. Sri Prithwish Samanta & Ors. reported in (2011) 1 WBLR 664 held that if the process of making a first application started, even at that point of time the applicant was minor, his second application, upon attaining majority, should be considered as continuation of an earlier one and the application could not have been dismissed on the ground that the same is filed beyond the prescribed period of two years. Thus I find that the impugned order passed by the Chairman district Primary School Council, Burdwan vide memo no. 4600 dated 5.12.2005 in rejecting an application for appointment on compassionate ground is not tenable and is, thus, set aside and quashed.
19. The Chairman of the District Primary School Council, Burdwan is directed to consider the said application afresh treating the same as having filed within the prescribed period as enshrined under Rule 14 of the said Recruitment Rule of 2001 and such decision should be taken within four weeks from the date of communication of this order.
20. The writ application is, thus, disposed of on above terms. However, there shall be no order as to costs.
21. Urgent Photostat certified copy of this order , if applied for, be given to the parties on priority basis.