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2012 Supreme(Cal) 763
High Court Of Calcutta
Shukla Kabir Sinha, Ashim Kumar Banerjee, JJ.
Howrah District Primary School Council : Appellant
Versus
Syed Minhaz Hassan : Respondent
F.M.A. No. 302 of 2012
Decided On : Aug 14, 2012
Aurobinda Chatterjee, Prabir Maji, S.M.Hussain, Subhabrata Dutta, Ratul Biswas
A claim for compassionate appointment must be made within a reasonable time and cannot be entertained if it is grossly belated.
Headnote:
COMPASSIONATE APPOINTMENT - PRIMARY SCHOOL TEACHER - RULE 3(D) - DELAYED APPLICATION - RES JUDICATA - WRIT PETITION - MAINTAINABILITY - The court held that the respondent's 4th and 5th writ petitions were hit by res judicata and the learned Judge could not have passed order on the same. The court further held that the respondent's claim for compassionate appointment was grossly belated and could not be entertained.
Fact of the Case:
The respondent's father, a primary school teacher, died in 1977. The respondent, who was 4 years old at the time, applied for compassionate appointment after attaining majority. His application was rejected by the Director, School Education, on the ground that it was not made within the prescribed time limit. The respondent filed a series of writ petitions challenging the rejection of his application. The learned Single Judge allowed the respondent's 5th writ petition and directed the Council to appoint him. The Council appealed against the order of the learned Single Judge.
Finding of the Court:
The court allowed the appeal and set aside the order of the learned Single Judge. The court held that the respondent's claim for compassionate appointment was grossly belated and could not be entertained.
Issues: 1. Whether the respondent's 4th and 5th writ petitions were hit by res judicata? 2. Whether the respondent's claim for compassionate appointment was grossly belated?
Ratio Decidendi: 1. The court held that the respondent's 4th and 5th writ petitions were hit by res judicata as the issue of compassionate appointment had already been decided by the Division Bench in MAT 1043 of 2004. 2. The court held that the respondent's claim for compassionate appointment was grossly belated as he had waited for 14 years after attaining majority to make the claim.
Final Decision: The appeal was allowed and the order of the learned Single Judge was set aside. W.P. No.4304(W) of 2009 was dismissed.
ASHIM KUMAR BANERJEE, J.
1. ONE, Sahabul Hossain was a primary teacher under the Howrah District Primary School Council. He died on July 28, 1977 leaving him surviving his widow Mst. Meherun Nisha at the age of 33 years, two daughters and one son. The eldest daughter was 9 years old. The present appellant was 4 years old and the youngest one was 14 days old. The family suffered a set back having acute financial stringency. The widow claimed that she had applied for compassionate appointment. The Council, however, denied having received the said application. However, taking the said application on its face value, we find that the widow in the said Bengali letter addressed to the Council's Chairman on September 11 in an unspecified year informed that she was illiterate. She had no means of livelihood. Hence, her only son who was 4 years old should be considered for appointment at the appropriate stage. We would also find another letter appearing at the page no.243 of the Paper Book dated February 2, 1978 wherein she reiterated what was stated in the earlier letter. Similar letter was sent on June 12, 1982 appearing at page 244 of the Paper Book. She claimed to have sent contemporaneous representations in 1987, 1990, 1996 and so on renewing her prayer of compassionate appointment of her son. The facts as narrated by the respondent no.1 in his writ petitions would admittedly show that he was 4 years old at the time of date of death of his father and his mother was an illiterate lady. The respondent for the first time approached this Court by filing writ petition that was disposed of in 1997 asking the Chairman to consider his representation. Accordingly, the Chairman considered the representation and rejected the same.
2. HE again approached this Court when the Court asked the Director, School Education to consider the prayer. The Director, School Education passed an order dated June 3, 1999 rejected the prayer. The learned Single Judge vide order dated September 19, 2003 dismissed the third writ petition challenging the reasoned order. The respondent approached the Division Bench. The Hon'ble Division Bench in MAT 1043 of 2004 affirmed the decision of the learned Single Judge and dismissed the appeal. The respondent accepted the said order and did not proceed further that reached finality on the issue.
3. THE respondent approached the learned Single Judge again with his 4th writ petition raising identical prayer being W.P. No.4333(w) of 2008. We do not know whether the earlier facts were placed before His Lordship or not. Be that as it may, His Lordship directed the Director, School Education to consider the issue again. Accordingly, the Director, School Education considered the issue again and rejected the same vide order dated November 6, 2008. The Director, School Education referred to the Government order dated January 2, 1995 and contended that the application should have been made within two years from the date of death of the teacher. Since it was received late, it could not be considered. Even in special circumstances the time could be extended for 4 years and not beyond. The circumstances would, thus, not deserve any relief for the applicant. Being aggrieved, the respondent filed his 5th writ petition being W.P. No.4304(W) of 2009. The learned Single Judge allowed the writ petition and directed appointment to be given. Hence, this appeal by the Council.
4. MR. Ratul Biswas, learned counsel appearing for the appellant contended that the learned Judge could not have reopened the issue in the 4th writ petition or the 5th once the issue attained finality by the judgment and order passed by the Court of Appeal on September 11, 2006. Mr. Biswas further contended, at the time of death of the concerned teacher, the respondent no.1 was minor. He became major after 14 years and after becoming major, he was not entitled to make any prayer for compassionate appointment that would be grossly belated. In any event, the 4th and
